Judgment F. I. REBELLO, J. ( 1 ) THE challenge in all these petitions is 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 has now come into force. The Sections under challenge may be gainfully reproduced:-"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 licence 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 establishment 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. " ( 2 ) THE challenges as formulated in the Writ petitions, may now be set out before adverting to the facts. Writ Petition No. 2450 of 2005 has been filed by the Indian Hotel and Restaurant Association (AHAR) and Shri J. V. Shetty, General Secretary. AHAR is an association of various hotel owners and bar owners and/or conductors of the same, who carry on business of running restaurants and bars in Mumbai. The grounds of challenge to the constitutional validity of the Act, and the various other contentions raised in Writ Petition No. 2450 of 2005, may be summarised as under:-" (1) Maharashtra Act No. 35 of 2005 is not applicable to the petitioners members; (2) The amendment violates Article 19 (1) (g) of the Constitution of India by imposing restrictions by way of total prohibition on the petitioners fundamental right to practice any profession or to carry on any occupation, trade or business; (3) Section 33b exempts certain establishments from the ban imposed by section 33a; The amended Section 33a is violative of Article 14 of the Constitution of India; (4) Affidavit in reply dated 1st October, 2005 does not comply with the provisions of order 19 Rule 3 of the Code of Civil procedure. Hence the contentions in the return filed being based on mere hearsay and being without personal knowledge cannot be relied upon or admitted in evidence; (5) Materialportions of the petition have not been denied by the respondents and consequently are deemed to have been admitted. To the extent contentions have not been controverted, the petition will have to proceed based on uncontroverted facts in the petition. The allegations about trafficking, showering of money by customers, vulgarity and immorality have been made without any personal knowledge and/or investigation being carried out by the Government. The allegations about exploitation of girls or trafficking have appeared for the first time in the return filed by the Government. The statement of objects and reasons does not refer to trafficking. "the challenges in W. P. No. 5503/20045 and 5504/2004 are similar. The allegations about exploitation of girls or trafficking have appeared for the first time in the return filed by the Government. The statement of objects and reasons does not refer to trafficking. "the challenges in W. P. No. 5503/20045 and 5504/2004 are similar. ( 3 ) WRIT Petition Lodging No. 2052 of 2005 is filed by Bharatiya Bargirls Union, a registered trade union bearing No. Kamgar Upa Ayuktha/thane/945/2004 under the Trade Union Act. It is represented by Ms. Varsha Kale, Honorary President. It claims a membership of 5000, who work as bar girls in different parts of Maharashtra. It is their contention that there are approximately 75,000 women working in around 2500 bars and hotels in or around mumbai city as well as in other districts of maharashtra. The principal contentions as urged are that:-" (1)the amendment is violative of the right of the bar girls to carry on an occupation or profession within the meaning of Article 19 (1) (g) of the Constitution of India. The restriction amounts to a total prohibition and consequently is violative of the fundamental rights to carry on an occupation or profession. (2) The impugned amendment is arbitrary and discriminatory in as much as it permits performance of dance in a drama theatre, cinema theatre and auditorium or sports club or gymkhana or three starred and above hotel, while completely prohibiting the same in an eating house, permit room or beer bar. The classification created has no reasonable nexus to the aims and objects it is supposed to achieve and is not founded on any intelligible differentia, having a nexus with the object sought to be achieved, namely prohibiting dancing in an eating house, beer bar and permit room and consequently is violative of article 14 of the Constitution of India. " ( 4 ) IN Writ Petition Lodging No. 2338 of 2005, six petitioners are co-petitioners. The petitioner No. 1 is the Forum Against Oppression of Women (FAOW), claiming to be an autonomous, voluntary, non-funded group, working on womens issues for the last 25 years. FAOW, as the petitioners No. 1 abbreviated name is known, is a part of the National Networking of Autonomous Womens Groups and has been organising and participating in six National Conferences of womens Movements in India. FAOW, as the petitioners No. 1 abbreviated name is known, is a part of the National Networking of Autonomous Womens Groups and has been organising and participating in six National Conferences of womens Movements in India. It functions with a discussion and campaign group, actively networking and campaigning around all issues concerning discrimination against women and other related activities. The petitioner No. 2 is Aawaaz-e-Niswan (AEN), a registered womens organisation dedicated towards fighting injustices inflicted upon women and has been in existence for 17 years. AEN grew from the need for a space for Muslim women to come together and share their experiences. The petitioner No. 3 emerged out of the womens movement in the City of Mumbai in the year 1980 and is a registered public trust. It was set up to further the cause of womens rights and to make society aware of the oppressions suffered by women of different sections. The petitioner No. 4 is known as Akshara and has been functioning since 1980s and grew out of the 1980s womens movements campaigns against rape and dowry. Their objective is in changing society by changing people and encouraging collective functioning. Petitioner No. 5, the Womens Research and action Group (WRAG) is a group of committed women working towards the promotion of the social and legal status of women from marginalized, disadvantaged, unrepresented and under-represented communities. It was founded in Mumbai in April, 1993 and is registered as a public trust. The Petitioner No. 6 is the India Centre for human Rights and Law (ICHRL) and registered under the bombay Public Trust Act. It works among the most vulnerable and marginalized people to ensure their access to rights and is a collective of lawyers and activists. Petitioners have raised the following contentions. (1) The amendment violates the right to life, livelihood of bar dancers as set out under article 21 of the Constitution of India while prohibiting dancing in eating house, beer bars and permit rooms no rehabilitation or compensation has been provided under the amendments or any other policies. (2) The amendment is violative of the bar dancers right to an occupation or profession. The restriction imposed is unreasonable and the respondents have failed to produce material to show that the restriction falls within permissible restrictions. (2) The amendment is violative of the bar dancers right to an occupation or profession. The restriction imposed is unreasonable and the respondents have failed to produce material to show that the restriction falls within permissible restrictions. (3) The amendment is violative of article 14 of the Constitution of India as there is hostile discrimination between dancers in various establishments. (4) The amendment is violative of the rights of the bar dangers right to freedom of expression. The prohibition sought to be imposed on the grounds of obscenity, decency and morality in the absence of the State discharging its burden amounts to an unreasonable restriction. ( 5 ) WRIT Petition No. 2587 of 2005 is by two petitioners. Petitioner No. 1 is a trust registered under the Public Trust Act and has been working for many years with sex workers in Malvani area of Malad in Mumbai providing HIV/aids and S. T. D. related services like condom promotion, setting up of clinics, etc. They have initiated 10 self groups with each group having 10 bar dancers. The petitioner No. 2 is the Ekta Self Group consisting of 10 bar dancers. Their principal contentions may be set out as under:-" (i) Section 33a and 33b is violative of article 19 (1) (a) and not protected by Article 19 (2) of the Constitution. (ii) The prohibition of all types of dancing whether vulgar or not is ipso facto violative of Article 19 (1) (g) and imposes a complete ban on people choosing dancing in dance bars as an occupation and cannot be construed as a reasonable restriction under Article 19 (6) of the Constitution. (iii) Clubbing of all forms of dance performed in eating house, beer bars and permit rooms whether decent or indecent in one class is violative of Article 14 of the constitution of India. Secondly dividing the establishments into those covered under section 33a on the one hand and on the other those excluded under Section 33b, makes the classificationunreasonable and not based on an intelligible differentia and having no nexus with the object sought to be achieved. The object for the exemption provided under section 33b is for holding dance performance in sports club, gymkhana and three starred and above hotel by renowned national and international artists having acquired skill in western dance form. The object for the exemption provided under section 33b is for holding dance performance in sports club, gymkhana and three starred and above hotel by renowned national and international artists having acquired skill in western dance form. The respondents have failed to show how the establishments exempted under Section 33b can have only non-obscene, decent, non-vulgar dance performance and why the dance performance in the establishments prohibited under Section 33a cannot be decent. (iv) Dancing is a legitimate source of livelihood. The impugned amendment has deprived the bar dancers of their right to carry on a profession of their choice and deprives them of their legitimate right of livelihood. The impugned amendment does not meet the test of substantive fairness. It does not provide for any alternative employment or occupation for the dancers much less does it make any alternate profession as is required to be made by the State as far as their right to livelihood is concerned. Prohibiting dancing in an eating house, beer bar and permit room is violative of article 14 of the Constitution of India. The amendment also does not meet the test of procedural fairness, as it imposes a blanket ban on all dance performances in dance bars without providing a procedure under which their fundamental rights to earn a livelihood is assured and also protection of the other fundamental rights guaranteed under Article 19. The amendment depriving the bar dancers their right to livelihood has put them in a position where they might, out of necessity, have to engage in unprotected sex work. Thus they would be highly vulnerable to contact sexually transmitted diseases including HIV. (v)The right to livelihood under Article 21 of the Constitution includes the right to health. The prohibition imposed by Section 33a is, therefore, violative of their health guaranteed by Article 21 of the Constitution. Section 33a and 33b cannot be construed as reasonable restriction under Article 19 (6) of the Constitution. Dancing is not "res-extra commercium" whereas liquor has been held to be "res-extra commercium". The restriction, therefore, imposed in the establishment against dancing and permitting the sale of liquor cannot be construed as reasonable restriction as it violates the right of the bar dancers to practice an occupation or profession. Dancing is not "res-extra commercium" whereas liquor has been held to be "res-extra commercium". The restriction, therefore, imposed in the establishment against dancing and permitting the sale of liquor cannot be construed as reasonable restriction as it violates the right of the bar dancers to practice an occupation or profession. If the object was to prohibit vulgar dancing then by prohibiting all types of dancing, the amendment violates Article 19 (1) (g) of the Constitution of India. (vi ). The prohibition of dancing in eating house, beer bar and permit rooms under section 33a is violative of the right of the bar dancers to express themselves by dancing. The restriction imposed is not reasonable because no opportunity is provided to the person against whom an order is made to have the same removed by asking that it could not and should not have been made. The restriction could only have been imposed on the ground of decency, morality and public order. The onus of proving the restriction as reasonable was on the State. The State has failed to discharge that burden. The prohibition, therefore, is not protected by article 19 (2) of the Constitution of India. (vii) Article 15 (1) of the Constitution sets out that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Women constitute an overwhelming majority of bar dancers. The effect of Section 33a is to infringe the fundamental right under Articles 19 (1) (a), 19 (1) (g), 21 and 14 of the Constitution. The effect of the State action is brought about by a distinction based on a prohibited ground and as such constitutes discrimination on a prohibited ground. The impugned amendment imposes disproportionate impact on women on the basis of their sex. It, therefore, constitutes discrimination on the ground of sex under Article 15, despite being couched in facially neutral language. " ( 6 ) CRIMINAL Writ Petition No. 1971 of 2005 is by the Association of Dance Bar Owners duly registered under the Trade Union Act, 1926. It is their contention that they are a non-political service organisation, aimed at providing economic and social welfare of its members including its employees. The most important objective is to promote and protect the interest of its members engaged in hotel industry and dance bars. They have as members 344 dance bars. It is their contention that they are a non-political service organisation, aimed at providing economic and social welfare of its members including its employees. The most important objective is to promote and protect the interest of its members engaged in hotel industry and dance bars. They have as members 344 dance bars. The challenge in the petition to Section 33a of the bombay Police Act, 2005 may be summarised as under:-" (I) Section 33a of the Bombay Police Act 2005 does not fall within the legislative competence of the State Legislature as it is enacted in respect of an entry in the VIIth schedule on which the State was incompetent to legislate. (II) The subject of the legislation is already covered by Central Legislation. Once parliament has enacted laws on the same subject including Indian Penal Code, Immoral traffic (Prevention) Act, 1956 Juvenile justice Act and the Code of Criminal procedure so as to prevent obscenity, indecency, depravity or immorality as well as exploitation of women including minor girls the field is already occupied. Therefore, to the extent that the State Act impinges on central Laws already in force, the said law is non-est being repugnant to the Central act. (III) Section 33a amounts to a colourable exercise of power. The State Legislature by inserting Section 33a under the guise of public order has impliedly amended Section 294 of the Indian Penal Code. The State legislature although had a power to amend section 294, such power could not have been exercised, unless Section 294 of I. P. C. itself is amended and the amendment had received the assent of the President. The amendment, therefore, amounts to colourable exercise of power. (IV ). The power to legislate must exist in the State Legislature and the same cannot be arrogated to itself by usurping the law making power of Parliament. If the exercise of Constitutional power conferred on the state Legislature is for extraneous reasons and/or for ulterior motive, it is nothing but sheer abuse of power or fraud on power. (V ). Implementation of International convention on Immoral Trafficking in Women and Girls is within the exclusive domain of parliament within the meaning of Article 253 and Entry No. 14 of List 1 of VIIth Schedule. (V ). Implementation of International convention on Immoral Trafficking in Women and Girls is within the exclusive domain of parliament within the meaning of Article 253 and Entry No. 14 of List 1 of VIIth Schedule. If, therefore, it is the contention of the state that the amendment was brought about to implement International Convention on prevention of Women Trafficking it was beyond the competence of the State Legislature and consequently Section 33a and 33b are unconstitutional. (VI) Section 33a discriminates between artists i. e. girls dancing in bars and thamasha theatres and at the same time discriminates between viewers visiting dance bars and Thamasha performances. Although the performance of dance is prohibited in dance bars such an activity, howsoever vulgar and indecent, can go on in Thamasha theatres. Dance in three starred and above hotel and discos are not prohibited. The same girl may dance either in Thamasha theatre or any other exempted place. Dance performance in such place is neither prohibited nor made punishable. Section 33a is, therefore, arbitrary, artificial or evasive and in any case is based on no intelligible differentia which distinguishes persons visiting dance bars on one hand and Thamasha theatre, three starred and above hotel on the other. Similar distinction between dance bars on one hand and Thamasha theatres, three starred and above hotel is again based on no intelligible differentia. The basis of classification between a person visiting dance bars, thamasha theatre and a person visiting three starred and above hotel as well as places such as dance bar on the one hand and thamasha theatre on the other hand has no nexus with the object sought to be achieved by the amendment of the Bombay Police Act. The classification is artificial and has no rational or reasonable nexus with the object sought to be achieved. (VI ). Section 33a (2) in as much as it imposes restrictions on the Court in sentencing, interferes with the independence of the judiciary (AIR 1999 S,. C. 3265) and, is, therefore, violative of the basic features of the constitution. (VII ). The statement of the President of the petitioner Shri Manjeetsingh as recorded by the Police discloses an offence against respondent No. 4 who is the Deputy Chief minister and Home Minister of the State of maharashtra. C. 3265) and, is, therefore, violative of the basic features of the constitution. (VII ). The statement of the President of the petitioner Shri Manjeetsingh as recorded by the Police discloses an offence against respondent No. 4 who is the Deputy Chief minister and Home Minister of the State of maharashtra. It should be handed over to central Bureau of Investigation and the respondent No. 7 be directed to register offence against respondents 4 to 6 and to carry out further investigation in regard to the demand of gratification of Rs. 12. 00 crore and to complete the same within a specified time limit. " ( 7 ) WRIT Petition No. 6930 of 2005 and 6931 of 2005 are by the Proprietors of two establishments who are affected by introduction of Sections 33a and 33b to the Bombay Police Act. Their challenges to the amendments are as under:-"i. That the prohibition imposed on dancing in eating house, beer bars and permit rooms amounts to an unreasonable restriction on the petitioners right to carry on trade or business under Article 19 (1) (g) of the constitution of India. II. The amendment prohibiting the petitioner from having dance performance in its establishment amounts to infringement of the petitioners right to life under Article 21 of the Constitution of India. III. The classification of establishment into eating house, permit rooms and beer bars on the one hand where dancing is totally prohibited and exclusion of three starred hotels and above disco lounges, gymkhana, sports club on the other hand is unreasonable in as much as the classification does not have nexus with the object, namely of prohibiting dancing in eating house, beer bar and permit room and is, therefore, violative of Article 14 of the Constitution of India. " ( 8 ) FROM the pleadings and the submissions made, the common challenges that are required to be considered can be formulated as under:- (a) Was the amendment, within the competence of the State Legislature? Further, is the subject matter of the amendment already covered by laws enacted by the Parliament under List III and if so is Section 33a repugnant to the law made by the Parliament, considering Article 246 of the Constitution of India? (b) Does the proviso to Section 33a (2) amount to interference with the independence of the judiciary which is a basic feature of the Constitution and consequently void? (b) Does the proviso to Section 33a (2) amount to interference with the independence of the judiciary which is a basic feature of the Constitution and consequently void? (c) Should the affidavit dated 1st October, 2005 filed by Youraj Laxman Waghmare having not complied with the provisions of Order 19 rule 3 of the C. P. C. be rejected? (d) Does Maharashtra Act 35 of 2005 not apply to an eating house and consequently not applicable to the petitioners establishments as submitted in Writ Petition No. 2450 of 2005? (e) Is Section 33a and consequently Section 33-B violative of Article 14 of the constitution of India and consequently void? (f) Is Section 33a violative of Article 15 of the Constitution of India and consequently void? (g) Does the prohibition imposed, amount to an unreasonable restriction of freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution of India? (h) Does the amendment amount to a total prohibition on the bar owners, carrying on their trade or business; Similarly, does the amendment amount to total prohibition on the bar girls carrying on their profession and or occupation and hence violative of their fundamental right under Article 19 (1) (g)? (i) If the prohibition amounts to a restriction, is it a reasonable restriction within the meaning of Article 19 (6) of the constitution of India? (j) Is the amendment violative of the bar dancers right to life, which includes livelihood and protected by Article 21 of the constitution of India? (k) Have Petitioenrs in Criminal W. P. No. 1971/2005 have made out a case for referring the matter to C. B. I. ? parties have relied on several judgments. We have adverted to them, to the extent necessary. ( 9 ) BEFORE we discuss the relevant issues we may note, that each freedom has different dimensions and merely because limits of interference with one freedom is satisfied, the law is not free from the necessity to meet the challenges of the other freedoms. When the petitioners allege violation of various fundamental rights, the test to be applied is the direct and inevitable consequence and effect of the impugned State action on the fundamental rights, of the petitioners. When the petitioners allege violation of various fundamental rights, the test to be applied is the direct and inevitable consequence and effect of the impugned State action on the fundamental rights, of the petitioners. It is possible that in a given case the pith and substance of the State action may deal with a particular fundamental right, but the direct and inevitable effect may be on another fundamental right and in that case, the State action would have to meet the challenge of the latter fundamental right. In testing the validity of the state action with reference to fundamental rights what the Court must consider is the direct and inevitable consequence of the State action. ( 10 ) THE challenge to the competency of the State legislature: the petitioners arguments and/or contentions on the ground of challenge to the competence of the legislature can be briefly summed up under these heads:-"a. The amendment does not fall within the legislative competence of the State legislature, as there is no entry morality in List II of the VIIth Schedule to the constitution of India. B. Even if the doctrine of pith and substance is applied, at the highest it may fall within the concurrent list. The subject matter is covered by law made under the concurrent list in respect of which there are already Central Legislation in force. The amendment to the Bombay Police Act i. e. Section 33a is inconsistent with the laws made by parliament. TheBombay Act was not reserved for consent of the President of india, nor assented to by the President of india. It would, therefore, be repugnant to the Central Law and consequently invalid or unconstitutional under Article 254 of the constitution of India. C. The amendment is nothing but a colourable legislation in colourable exercise of powers. D. The amendment amounts to a fraud on the constitution, as the State Legislature though was incompetent to pass the amendment has usurped the power, by encroaching on the law making power of the parliament. E. The amendment, considering the affidavits filed, is to prevent human trafficking based on International Covenants. Parliament alone under Article 253 of the Constitution has power to make a law on Trafficking to give effect to International covenants and as such the amendment is unconstitutional. E. The amendment, considering the affidavits filed, is to prevent human trafficking based on International Covenants. Parliament alone under Article 253 of the Constitution has power to make a law on Trafficking to give effect to International covenants and as such the amendment is unconstitutional. F. On behalf of the State, the learned Advocate general submits that the amending Act falls under entry 1, List II of the VIIth Schedule which deals with public order. A bare perusal of the preamble to the Bombay Police Act, 1951 makes it manifest that the act is meant for maintenance of public order. The Rules made, are for licensing and regulating places of public amusement other than cinema and performance of public amusement including melas and tamasha. They are meant to uphold public decency, morality and public order. Regulating performance by licensing is an essential part of public order. The submission that the amendment would fall in the residuary entry namely Entry 97 List I is misconceived and unsustainable. To resort to Entry no. 97, the incompetence of the State Legislature must be first established by applying the doctrine of Pith and Substance. The amending Act deals with public order. Merely because some portion of the subject matter of the legislation may touch upon an entry in another list, the same cannot be a ground for holding that the Legislation is beyond the competence of the state Legislature. "on behalf of the Commissioner of Police, mumbai, it is submitted that the Bombay Police Act has been enacted by the State Legislature and can be justified by Entry Nos. 1 and 2 and 8 of List II viz. entry relating to public order. Policing and control of the manufacture, sale and distribution of intoxicant liquors is within the competence of the state Legislature. It is submitted that the State mechanism which controls the sale of intoxicant liquor in bars cannot be misused by the licensees by exploiting women by committing acts which are derogatory to the dignity of women. Under Article 51 of the Directive Principle of State Policy, it is the duty of the State to implement all international treaties and covenants. It is submitted that the State mechanism which controls the sale of intoxicant liquor in bars cannot be misused by the licensees by exploiting women by committing acts which are derogatory to the dignity of women. Under Article 51 of the Directive Principle of State Policy, it is the duty of the State to implement all international treaties and covenants. Section 33a and 33b are not laws passed to enforce international covenants, but have been passed to regulate the conduct of eating house, permit room or beer bar, taking into account the fact, that under the administrative policy it is also required to ensure that the dignity of women is preserved and they are not exploited. This is the value which is prescribed in several international covenants. Section 33a and 33b which is the part of police functions independently subserves the covenants which India has entered into in the matter of International law. Section 33a and 33b are not laws passed in Pith and substance to enforce international Treaty or covenants. It is a law passed to regulate conduct of bars and as a part of police functions. It helps to subserve the international covenant relating to womens dignity and prevention of exploitation. ( 11 ) ON behalf of the Deputy Chief Minister and home Minister, who is the Respondent No. 4 in Criminal writ Petition NO. 1971 of 2004, learned Counsel submits that the law would squarely fall within the entries in List II and the following fields of legislation:- list: Entry: Subject/aspect: ii 33 Entertainment or Amusement ii 2 Police ii 8 Intoxicants ii 1 Public Order ii 6 Public Health ii 64 Offences against laws with respect to above matters. It is submitted that the statutory provisions are "in respect of" an activity of exploitation of women conducted for financial gain or advancement by a number of bar owners and other intermediaries which was projected as business of holding live entertainment or amusement by women in public places, licensed as eating houses, permit rooms or beer bars, where food or drinks or intoxicants were served. The institutionalised activity was having ill effects on society and in particular on safety, public health, crimes traceable to material welfare, disruption of cultural pattern, fostering of prostitution, infiltration of crime, problems of daily life of customers and their dependents and self abasement apart from the degradation of the women themselves. The institutionalised activity was having ill effects on society and in particular on safety, public health, crimes traceable to material welfare, disruption of cultural pattern, fostering of prostitution, infiltration of crime, problems of daily life of customers and their dependents and self abasement apart from the degradation of the women themselves. The provisions are intended to abolish the evil and immoral practices to give effect to the constitutional aims. The statute prohibits live entertainment in such places after the commencement of the act and makes the holding of dance performance an offence. Entry No. 33 deals with entertainment and must be given its widest amplitude so as to include power to prohibit or restrict a particular kind of entertainment in particular places of public entertainment where the need is felt most. Considering Entry No. 8 the scope of the legislative power under these entries must include within their ambit all aspects of entertainment activity which may result in or are likely to result or have resulted in disorderly behaviour, danger to safety of the people in neighbourhood, crimes traceable to the evil, opening of avenues for fostering of prostitution, infiltration of criminal activities. The State in such circumstances is not legislating in respect of the offences themselves but is removing the malignancy itself. It is the duty of the State to take steps to protect public health and this will include the secondary effects on the dancers and the patrons as well as the general public. Coming to entry No. 64 it is submitted that this entry covers sub-section (2) of Section 33a, if the State has legislative competence to enact the main provision. It is then submitted that considering the width of entry 8 of List II as the State Government has exclusive privilege to deal in liquor, it has also to be borne in mind that it has a constitutional and legal duty to safeguard the public interest and public health. A positive obligation is cast on the state that any activity in dealing with liquor must strictly conform to the public interest and ensure public health, welfare and safety. On a combined reading of Entry 8 and Entries 1, 2, 26, and 33, the legislative Competence of the State is apparent. ( 12 ) BEFORE we deal with the entries, let us examine some contentions urged on behalf of the petitioners. On a combined reading of Entry 8 and Entries 1, 2, 26, and 33, the legislative Competence of the State is apparent. ( 12 ) BEFORE we deal with the entries, let us examine some contentions urged on behalf of the petitioners. The issue of theexpressions, "colourable legislation, fraud on power/fraud on the constitution" are well understood. We may gainfully refer to some observations of the Apex Court in the case of S. S. Bola and Others vs. B. D. Sardana and Ors. AIR 1997 S. C. 3127. "colourable legislation would emerge only when a legislature has no power to legislate on an item either because it is not included in the List as assigned to it under the respective Entries in the Seventh Schedule of the Constitution or on account of limitations imposed either under Part III of the constitution relating to Fundamental Rights or any other power under the Constitution. As the legislature enacts a statute on an assumption of such power, but when on examination, if it is found that it has travelled beyond its power or competence or in transgression of the limitations imposed by the Constitution itself, such an enactment is called a colourable legislation. It has reference only to the legislative incompetence and not to the power as such. If the legislature enacts law in the pretext of the exercise of its legislative power, though actually it did not possess such power, the legislation to that extent becomes void as the legislature makes its Act only in presence of and in purported colourable exercise of its power. ""the doctrine of fraud on power means that the legislature really has the power but does not exercise that power. It merely pretends to have exercised the power. In the eye of the law, such an Act is not a law at all, but it is mere pretence of law and the Court will not take notice of such law. The doctrine of fraud on the Constitution is altogether a different facet and a serious charge. It would mean that when there is a constitutional restriction or prohibition to make a legislative enactment but the legislature in spite of the prohibition and restriction makes such law, it is a fraud on the Constitution. Therefore, the distinction between the fraud on power and the fraud on the Constitution is clear and unambiguous. It would mean that when there is a constitutional restriction or prohibition to make a legislative enactment but the legislature in spite of the prohibition and restriction makes such law, it is a fraud on the Constitution. Therefore, the distinction between the fraud on power and the fraud on the Constitution is clear and unambiguous. ""the Courts have applied the doctrine of pith and substance and in some cases the doctrine of "incidental" or "ancillary" or "subsidiary power" of the legislature to uphold the law or to validate the law declared by the Courts as invalid. Thereon, one of the doctrines is applied when the court finds that the law in pith and substance is within the legislative competence but incidentally trenches upon another subject of legislation. Equally, the doctrine of "ancillary or ancillary power" the legislature is applied when the Court records a finding that the impugned Act is substantially within the legislative competence or within the assigned field of legislation dealt with under a particular subject specified in the respective lists of the Seventh Schedule to the Constitution, but incidentally, it trenches upon another subject of legislation assigned either to the parliament or the Legislature of a State as the case may be. However, the said doctrines cannot be employed to uphold a law that directly nullifies the declaratory law made by the Court in exercise of the power of judicial review or to make the writ of mandamus or direction ineffective or unenforceable, unless its invalidity is properly and constitutionally removed by employing the appropriate language so as to make a new law within the constitutional limits or limitations or competence of the legislature. " ( 13 ) THE question which the Court has to answer is whether the Petitioners have discharged the burden placed on them to show that the Legislature was incompetent to pass the amendment Act. The Apex court in Charanjit Lal Chowdhury vs. The Union of india and Ors. , AIR 1951 SC 41 has set out that presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. In Welfare Association, A. R. P. Maharashtra and Another vs. Ranjit P. Gohil and Ors. , AIR 1951 SC 41 has set out that presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. In Welfare Association, A. R. P. Maharashtra and Another vs. Ranjit P. Gohil and Ors. , (2003) 9 SCC 358 the said principle has been reiterated in the following words:-"there is a presumption that the Legislature does not exceed its jurisdiction. The burden of establishing that the Act is not within the competence of the Legislature, or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires. If a case of violation of a constitutional provision is made out then the State must justify that the law can still be protected under a saving provision. The Courts strongly lean against reducing a statute to a futility. As far as possible, the courts shall act to make a legislation effective and operative. "it is now well settled that the various entries in the three lists of the Seventh Schedule are legislative heads defining the fields of legislation and should be liberally and widely interpreted. Not only the main matter but also any incidental and ancillary matters are available to be included within the field of the entry. The settled rules of interpretation governing the entries do not countenance any narrow and pedantic interpretation. The judicial opinion is for giving a large and liberal interpretation to the scope of the entries. In interpreting a constituent or organic statute indeed that construction which is most beneficial to the widest possible amplitude of its powers must be adopted. None of the items in the lists is to be read in a narrow or restricted sense and all ancillary or subsidiary matters referable to the words used in the entry and which can fairly and reasonably be said to be comprehended therein are to be read in the entry. One of the proven methods of examining the legislative competence of an enactment is by the application of the doctrine of pith and substance. One of the proven methods of examining the legislative competence of an enactment is by the application of the doctrine of pith and substance. This doctrine is applied when the legislative competence of a legislature with regard to a particular enactment is challenged with reference to the entries in various lists and if there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to the field of legislation allotted to the State under the Constitutional Scheme. (See E. V. Chinnaiah vs. State of A. P. and Ors, (2005) 1 SCC 294. ( 14 ) THE entire argument of the petitioner on the ground of legislative incompetence is to contend that the expression morality is not included in any of the lists of the Seventh Schedule and consequently the power to legislate would be referable to the residuary Entry 97 of List I and that being the case it is Parliament alone which was competent to make the law. This argument proceeds on a basic fallacy. Before exclusive legislative competence can be claimed for Parliament by resorting to the residuary entry the legislative incompetence of the State assembly must be clearly established. Entry 97 of list I of the Seventh Schedule itself is specific that a matter can be brought under the entry only if it is not enumerated in List II or List III and in the case of a tax, if it is not mentioned in either of those lists. In a Constitution like ours where there is a division of legislative subjects but the residuary power is vested in Parliament, such residuary power cannot be so expansively interpreted as to whittle down the power of the State legislature. That might affect and jeopardise the very federal principle. The federal nature of the constitution demands that an interpretation which would allow the exercise of legislative power by parliament pursuant to the residuary powers vested in it to trench upon State Legislation and which would thereby destroy or belittle State autonomy must be rejected. That might affect and jeopardise the very federal principle. The federal nature of the constitution demands that an interpretation which would allow the exercise of legislative power by parliament pursuant to the residuary powers vested in it to trench upon State Legislation and which would thereby destroy or belittle State autonomy must be rejected. The preamble of the Bombay Police Act, 1951 and the amendments, may now be set out as under:-". . . AND WHEREAS it is necessary to consolidate and amend the law relating to the regulation of the said Force and the exercise of powers and performances of functions by the State Government and by members of the said Force for the maintenance of public order. AND WHEREAS it is necessary to provide for certain other purposes hereinafter appearing. . . . . . . . "the Preamble annexed to the Amendment Bill reads as under:-"whereas the Commissioners of Police, district Magistrates and certain other officers, have granted performance licences for holding dance performance; and whereas the object of granting such performance licences is to hold such dance performance for public amusement; and whereas it is brought to the notice of the State Government that the eating houses, permit rooms or beer bars to whom licences to hold a dance performance have been granted are permitting performance of dances in an indecent, obscene or vulgar manner; and whereas it has also been brought to the notice of the Government that such performance of dances are giving rise to exploitation of women; and whereas the Government has received several complaints regarding the manner of holding of such dance performance; and whereas the Government considers that such performance of dances in eating houses, permit rooms or beer bars are derogatory to the dignity of woken and are likely to deprave, corrupt or injure the public morality or morals. And whereas the Government considered it expedient to prohibit such holding of performance of dances in eating houses, permit rooms and beer bars. " ( 15 ) THE question, therefore, that we are called upon to answer is whether the amendment does not fall in any of the entries in list II of the Seventh schedule as contended on behalf of the petitioners and as such would fall within the residuary entry no. " ( 15 ) THE question, therefore, that we are called upon to answer is whether the amendment does not fall in any of the entries in list II of the Seventh schedule as contended on behalf of the petitioners and as such would fall within the residuary entry no. 97 of list I of even if it falls within List III it is occupied by Central Legislation and hence the law having not been reserved for Presidential assent is repugnant to the Central law and consequently unconstitutional. or as has been submitted on behalf of the respondents that it squarely falls within the entries 33, 2, 8, 1, 6 and 64 of List II. "the Bombay Police Act as originally enacted under Section 33 conferred power on the authority set out therein. Sub-section (1) (w) confers power on the competent Authorities to license or control places of public amusement or entertainment. By the amendment introduced by Act Bom. 20 of 1953 power was conferred under sub-section (1) (wa) to license or control 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 musical, dancing, mimetic or the artical or other performances for the public amusement, including melas and tamashas. Sub-clause (ii) of sub-section (wa) confers power to regulate in the interest of public order, decency or morality or in the interest of the general public, the employment of artists and the conduct of the artists and the audience at such performance. There was also provision for prior scrutiny of such performances and of the scripts in respect thereof. It would thus be clear that licensing and regulating entry in a place of public amusement or entertainment and regulating the same, can be done in the interest of public order, decency and morality and has been in force since the main Act was amended or by the amendment of 1953. The power, therefore, to regulate and license, places of public entertainment or amusement of artists working therein was never doubted and this could not have been doubted considering Entry 33 of List II and entries 1 and 2 of List II. If there be a power to legislate and impose restrictions, the power to prohibit such performance in the establishments surely cannot be doubted. If there be a power to legislate and impose restrictions, the power to prohibit such performance in the establishments surely cannot be doubted. As noted by the Apex Court the entries must be given a wide amplitude. " ( 16 ) ENTRY 8 of List II is field of legislation pertaining to Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors. It is now the settled law (though now there is some doubt considering the dissenting opinions in State of punjab and Anr. vs. Devans Modern Brewaries Ltd. and anr. 26 (2004) 11 SCC 26 ) that it is the State alone that has the exclusive privilege to deal in liquor. Based on that, the contention urged is that it is open to the State to regulate the form of entertainment in a place where the privilege is being exercised. For that purpose our attention was invited to some judgments of the American Supreme court and the right of the State and the exercise of powers under the Twenty-first amendment. In New York state Liquor Auth vs. Bellanca, 452 U. S. 714, 14, 717 (1981) where there was a regulation on artists performance in Bars, that Court observed as under:-"common sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behaviour. This legislation prohibiting nudity in public will once and for all, outlaw conduct which is now quite out of hand". In Crowley vs. Christensen, (1890) 34 Law Ed. 620 the Court observed:-"the state, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants - its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. . . . . . It is a question of public expediency and public morality, and not of federal law. "the Court then observed as under:-"these observations have our entire concurrence and they completely negative the contention raised on behalf of the petitioner. The provisions of the regulation purport to regulate trade in liquor in all its different spheres and are valid. . . . It is a question of public expediency and public morality, and not of federal law. "the Court then observed as under:-"these observations have our entire concurrence and they completely negative the contention raised on behalf of the petitioner. The provisions of the regulation purport to regulate trade in liquor in all its different spheres and are valid. "from the above observation it may be noted that in the U. S. A. Courts have taken a view that in matters pertaining to places whereliquor is sold, it is open to the State in exercise of its power to impose restriction on the form of entertainment in places where liquor is served or sold more so in cases where public expediency and public morality demands. We will examine whether this principle can be adopted in the present case in our discussion to challenges under Article 19 (1) (g ). ( 17 ) IT is no doubt true that the preamble notes that dances in indecent manner is derogatory to the dignity of women and likely to disrupt, corrupt or injure public morality or morals. It is also set out that such performances are giving rise to exploitation of women. As has rightly being pointed out, it is always open to the State to bear in mind the constitutional principles including directive principles, fundamental duties as also international covenants while enacting a legislation. The State legislature while enacting a law can take note of international covenants and treaties to which India is a party and/or signatory, as long as the law which it makes falls within its competence or traceable to a right under Part III and or in furtherence of the directive principles. If the law falls within its competence it would not be a law enacted to bring into force international covenants and treaties. Such a power only flows to Parliament under Article 253 read with Entries 13 and 14 of List I. Both lists II and List III contain innumerable entries in respect of which Central Government as the Federal government may have signed treaties and conventions. Such a power only flows to Parliament under Article 253 read with Entries 13 and 14 of List I. Both lists II and List III contain innumerable entries in respect of which Central Government as the Federal government may have signed treaties and conventions. If the State Legislature while enacting a law within its competence, bears in mind the principles as contained in those conventions or treaties, as long as the law made is within its competence, it cannot be said that this would impinge on the domain of parliament and such an exercise of power would either be a colourable exercise of power or fraud on the constitution. What the State Legislature in fact does, is to enact a law within its field of competence, but bearing in mind while enacting such a law, international treaties or conventions to which india is a signatory or a convention which by passage of time has reached the status of customary international law. The other aspect of the matter is that once the Legislation is referable to entries in the IInd Schedule, the mere fact that it may also impinge on some entries in List I or List II by itself would not make the legislation unconstitutional. The doctrine of pith and substance will have to be applied. If so applied and as we were examining the entries in list II, the present law substantially is referable to entries 2, 8, 33, and 64 of List II. We have, therefore, no hesitation in holding that the State Legislature had competence in enacting the law. ( 18 ) THAT brings us to the other issue raised on competency, namely repugnancy between a Central Act and the State Act. Article 254 of the Constitution would only be attracted if the law made by the state assembly is pursuant to a power conferred on it under list III of the Constitution of India and in respect of which Parliament has also made a law. As we have noted earlier, the law made by the State Assembly is traceable to the power conferred on it under entries in List II of the Constitution. As we have noted earlier, the law made by the State Assembly is traceable to the power conferred on it under entries in List II of the Constitution. We may only refer to the judgment in The Bar Council of U. P. vs. State of U. P. and Another 1973 S. C. 231 where in the matter of repugnancy, the Apex Court observed as under:-"the question of repugnancy can only arise in matters where both the Parliament and the state Legislature have legislative competence to pas laws. In other words when the legislative power is located in the concurrent List the question of repugnancy arises. "it will thus be clear that considering the finding recorded by us, in the earlier part of this Judgment, the law made is within the law making power conferred on the State Assembly in List II. The issue of repugnancy, therefore, would not arise. ( 19 ) THE challenge on the ground that curtailing of judicial discretion interferes with the independence of the Judiciary and as such the basic feature of the Constitution. "the next contention is that the State legislature by curtailing judicial discretion has interfered with the independence of judiciary which is a basic feature of the Constitution. Reliance for that is placed on the Judgment in Registrar (Administration) High Court of Orissa, Cuttak vs. Siser Kanta Satapathy (dead) by L. Rs. and Anr. , AIR 1999 3265 SC 3265. In our opinion the contention is totally misplaced. Once it is open to the State legislature to enact the law, it was open to the state Legislature also to amend the law. While amending the law it will also be open to the legislature in the matter of sentencing, to provide in what cases the punishment should act as a deterrent and a case where discretion is conferred to issue lesser punishment, then to give reasons for the same. Such an exercise of power is not unknown to legislation in India. If there be power to fix a term of imprisonment it is an incidental power to regulate sentencing. At any rate this does not interfere with the judicial power of the Court in conducting trial or holding the person guilty. Such an exercise of power is not unknown to legislation in India. If there be power to fix a term of imprisonment it is an incidental power to regulate sentencing. At any rate this does not interfere with the judicial power of the Court in conducting trial or holding the person guilty. All that the law stipulates is once the Court holds the person to be guilty, in the matter of sentencing, if it proposes to give a lesser punishment considering the discretion conferred, then to give reasons for its decision. The Criminal Procedure Code provides for hearing before sentencing, it also provides in certain kind of cases that the person convicted, instead of being sentenced to imprisonment be placed under probation. There are several other illustrations, including in the Indian Penal Code. The contention that the law infringes the basic feature of the Constitution, the argument must be rejected without any further discussion" ( 20 ) AFFIDAVIT in reply not verified according to law:. A submission was made that the affidavit in reply dated 1st October, 2005 had not complied with the provisions of Order 19 Rule 3 of the Code of civil Procedure. Subsequent to the contention being urged, on behalf of the respondents State an additional affidavit was filed by Youraj Laxman waghmare dated 23rd November, 2005. In that affidavit the practice followed on the Original Side of this Court has been set out. It is not necessary for us to decide whether such a practice is in consonance with the provisions of the Code of Civil procedure. The requirement for verification is to enable the Court to know whether the affiant is deposing to the facts based on his personal knowledge or based on information conveyed to him and which he believes to be true and/or based on records. If such an affirmation is not made and it is affidavit evidence which the Court must consider, it will be impossible for the Court to decide whether the petitioner has made a false statement before it and if so whether the facts can be relied upon. Also in the absence of verifying the paragraphs as set out earlier, it may not be possible to proceed against the petitioner for perjury or contempt. Mr. Waghmare, however, has now added a verification clause subsequent to the argument, rectifying the irregularity. No additionalarguments have thereafter been advanced after verification. Also in the absence of verifying the paragraphs as set out earlier, it may not be possible to proceed against the petitioner for perjury or contempt. Mr. Waghmare, however, has now added a verification clause subsequent to the argument, rectifying the irregularity. No additionalarguments have thereafter been advanced after verification. Once that be the case in our opinion it is not necessary to further answer the said issue. The failure to affirm an affidavit was an irregularity which was curable. The respondents have taken steps to cure the irregularity. The Court has taken the affidavit on record. Once that be so it is not necessary for this Court to refer to the various judgments relied upon by the learned Counsel for the petitioner in writ Petition NO. 2459 of 2005. Even otherwise in a challenge to a Legislation, affidavit is not the only material relied upon by the Court. That argument, therefore, must be rejected. ( 21 ) MAHARASHTRA Act No. 35 of 2005 is not applicable to the petitioners members:"writ Petition No. 2450 of 2005 was amended by adding the following prayer clause:- (aa) that this Honble Court be pleased by an appropriate Writ/direction to declare that the provisions of the amending Act XXV of 2005 amending the provisions of the Bombay police Act, 1951 by introducing Section 33 (A) and Section 33 (B) are not applicable to the establishments of the members of the petitioners Association who hold the requisite licences under Section 2 (9) and 2 (10) of the Bombay Police Act, 1951. "it is submitted on behalf of the petitioners that the establishments of the members are places of public entertainment as defined under Section 2 (10) and places of public amusement as defined under Section 2 (9) and are not eating houses as defined under section 2 (5a) of the Bombay Prohibition Act, 1951. A room in the place of public entertainment is demarcated and separated from the rest of the establishment for service of liquor where only permit holders are allowed to enter and no amusement performances are permitted there. Hence the activity of sale of liquor is distinct and separate. A room in the place of public entertainment is demarcated and separated from the rest of the establishment for service of liquor where only permit holders are allowed to enter and no amusement performances are permitted there. Hence the activity of sale of liquor is distinct and separate. The 1st petitioner has pleaded that its members have three different activities in their respective establishments which are independent of each other:- (i) Service of food; (ii) performance of music and dance; and (iii) service of liquor in an independent and demarcated room approved by the collector/licensing Authority. For the purpose of carrying on the above mentioned separate and independent activities, the petitioners members are required to obtain licences from:-" (i) the Mumbai Municipal Corporation for selling and serving food; (ii) from the Commissioner of Police for premises, Performance and Entertainment licences; and (iii) from the Collector under the Bombay prohibition Act, 1949 read with the Bombay foreign Liquor Rules, 1953 for selling liquor. To serve liquor in the establishment, a person is required to apply for a licence in Form FL III under rule 44 of the Bombay Foreign Liquor Rules, 1953 framed under the provisions of the Bombay Prohibition act, 1949. Along with the application, a Plan of the restaurant is submitted to the Licensing Authority showing a room or an enclosed area independent of the rest of the establishment for "sale and consumption of Foreign Liquor". The application is then placed before a Statutory Committee for consideration and the Collector then considers the recommendation of the statutory committee and after satisfying himself that the "premises where it is proposed to sell foreign Liquor" are in conformity with the Rules, sanctions an FL III licence under Rule 45 of the bombay Foreign Liquor Rules, 1953. The Plan of the proposed premises showing and demarcating the room where liquor is to be served, is then approved by the collector by affixing his stamp and signature on the plan. It is also submitted that the guide-lines dated 26th April, 1989 issued by the Government prescribe various conditions which are required to be fulfilled for being considered for grant of an FL III license. The entry to the said room duly licensed to sell and serve liquor is restricted to permit holders only. "rule 52 of the Bombay Foreign Liquor Rules, 1953 prescribes as follows:-"52. The entry to the said room duly licensed to sell and serve liquor is restricted to permit holders only. "rule 52 of the Bombay Foreign Liquor Rules, 1953 prescribes as follows:-"52. Sale and consumption of foreign liquor- (1) Foreign liquor may be sold in pegs or bottles to a foreigner or a permit-holder at a hotel or restaurant for consumption only in the room or rooms assigned for that purpose and approved by the licensing authority for the use of foreigners and permit-holders only. Foreign liquor may also be sold in pegs or hotels to a resident in such hotel, for consumption in his room; provided that, wines may be served only to foreigners for persons holding valid liquor permits in the dining rooms of such hotel or restaurant. "" (2) Foreign liquor may be sold in pegs or bottles at a club to any member thereof for his guest holding permit for consumption only in the room or rooms assigned for that purpose and approved by the licensing authority and to any member of the club residing therein only for consumption in his room; provided that, mild liquor may be served to any member including his guest (such member or guest being not below twenty-one years of age) for consumption at any place within the premises of the club, which is not within view from any public place. "it is, therefore, submitted that the activity of sale and consumption of foreign liquor is an activity independent of the rest of the establishment and is restricted to the demarcated and designated room approved by the Collector for sale and consumption of liquor. On certain days sale of liquor is prohibited. On such days the demarcated room or rooms for the sale of liquor are kept closed and the rest of the establishment is allowed to function and other activities of the Restaurant like sale of food and amusement performances are not disturbed. It will, therefore, be apparent, it is submitted, that the sale of liquor is an independent activity and other activities can continue even when liquor is not served. It will, therefore, be apparent, it is submitted, that the sale of liquor is an independent activity and other activities can continue even when liquor is not served. It is submitted that the right to trade in liquor may not be a fundamental right, but in so far as the State of Maharashtra is concerned, a law having been enacted for carrying on trade in liquor by Licensees holding valid licences issued under the bombay Prohibition Act, 1949 read with the Bombay foreign Liquor Rules, 1953, the petitioners members, who are the holders of such licences, have a statutory right which can be invaded only in accordance with the law. The amendment only prohibits holding of a performance of dance of any kind or type in an Eating House, Permit Room or Beer bar. The expression "permit Room" and "beer Bar"are not defined either in the Bombay Police Act, 1951 or in the Bombay Prohibition Act, 1949. Similarly, the term "dance Bar" is also not defined in the Bombay police Act, 1951 or the Bombay Prohibition Act, 1949. These terms can, therefore, at best be considered as "phrases of convenience" and are, therefore, capable of being moulded to suit the convenience of the occasion. If the room approved for sale or consumption of liquor is construed for the purposes of convenience as "permit Room" or "beer Bar", only the designated "permit room" or "beer Bar" room will be covered under the prohibition contemplated by the impugned amendment. The petitioners members do not have any dance performances in the room assigned for sale and consumption of foreign liquor or beer. Dance and music are performed only in the remaining portion of the place of public entertainment excluding the said permit room and as such the impugned amendment would not apply to them as their establishment is excluded from the definition of eating house by Section 2 (5a) of the Bombay Police act, 1951 and consequently the declaration as prayed for. Dance and music are performed only in the remaining portion of the place of public entertainment excluding the said permit room and as such the impugned amendment would not apply to them as their establishment is excluded from the definition of eating house by Section 2 (5a) of the Bombay Police act, 1951 and consequently the declaration as prayed for. ( 22 ) ON behalf of the State, the learned Advocate general submitted that the definition of 'eating house' as contained in Section 2 (5a) and of "place of public entertainment" in section 2 (10), would demonstrate that the reason for exclusion of place of public entertainment from the definition of eating house, is because liquor or any other substance cannot be served in an eating house which has a license for keeping a place of public entertainment. Thus to differentiate between restaurant which sells food but does not sell liquor the legislature has excluded place of public entertainment from the definition of eating house. In so far as a place of public entertainment is concerned the licence is issued to an eating house, which enjoys an additionalfacility to serve liquor, wine and beer. In other words a place of public entertainment includes an eating house. A Division Bench of this Court in D. S. Mudaliyar vs. State of Maharashtara and Ors. , in Writ petition No. 24 of 1998 decided on 4th October, 2004 has held that though eating house may not be included as a place for public entertainment, nevertheless a place of public entertainment includes an eating house and this question therefore is no longer res integra. It is also pointed out that under the Rules liquor can only be served for consumption in the permit room and at or near the eating house. The area/room assigned has to be approved for that purpose by the licensing authority. It is submitted that the argument advanced on behalf of the petitioners that they are serving liquor in an area not covered by FL III licence or based on an illegality ought not to be countenanced by the Court. The area/room assigned has to be approved for that purpose by the licensing authority. It is submitted that the argument advanced on behalf of the petitioners that they are serving liquor in an area not covered by FL III licence or based on an illegality ought not to be countenanced by the Court. ( 23 ) AN establishment, which has an eating house, FL iii Licence and a place of public entertainment licence, can be divided into two parts:- (a) The area of the premises of eating house i. e. fully covered by the FL III licence and where liquor can be served; and (b) the remaining area not covered by the FL iii licence where liquor cannot be served. "can the submission on behalf of the petitioners in Writ Petition NO. 2450 of 2005 that the act is not applicable to the petitioners' members be sustained? For the purpose of considering the same let us consider the various definitions which are involved"under the provisions of the Bombay Police act, 1951. "section 2 (5a) "eating house" means any place to which the public are admitted, and where any kind of food or drink is supplied for consumption in the premises by any person owing or having an interest in or managing such place, and include a refreshment room, boarding-house, coffee-house or a shop where any kind of food or drink is supplied to the public for consumption in or near such shop; but does not include "place of public entertainment". "section 2 (10) "place of public entertainment: means a lodging-house, 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 a spirit, arrack, toddy, ganja, bhang or opium shop) to the public for consumption in or near such place. " "section 2 (9) "place of public amusement" means any place where music, singing, dancing, or any diversion or game, or the means of carrying on the same, is provided and to which the public are admitted either on payment of money or with the intention that money may be collected from those admitted and includes a race course, circus, theatre, music hall, billiard room, bagatelle room, gymnasium, fencing school, swimming pool or dancing hall. "we have earlier reproduced Section 33a which clearly sets out that holding of performance of dance of any kind or type is prohibited in an eating house, permit room or beer bar"the submission as noted earlier on behalf of the petitioners is that their place is not an eating house as they have a license for a place of public entertainment and further no activity of dance is carried out in the permit room or beer bar. The question that therefore emerges is, if dance and music are performed only in the remaining portion of the place of public entertainment not covered by FL iii licence, for which they have a license as an eating house, can the activity of dancing or music be prohibited? In such a situation let us examine the process of interpretation of a statute. The object of interpreting a statute is to ascertain the intention of the Legislature. If there be casus omissus, it cannot be supplied by the Court except in case of clear necessity and where reasons for it is found in the four corners of the statue itself. At the same time a casus omissus should not be readily inferred and for that purpose all the parts of the statue or Section, must be construed together so that the construction to be put to a particular provision makes a consistent enactment of the whole statute. This is more so in a case where the literal construction would lead to a manifest absurdity or analogous result which would not have been intended by Legislature. A casus omissus ought not to be created by interpretation, save and except in case of necessity. On a construction of the definitions earlier reproduced it is clear that eating house does not include a place of public entertainment. However, the definition of place of public entertainment, includes an eating house where liquor or intoxicant drug is supplied for consumption to the public in or near such place. Therefore, it would be clear that a place of public entertainment would include an eating house. An eating house to which is attached a permit room or beer bar to serve liquor or intoxicants can be a place of public entertainment. Therefore, it would be clear that a place of public entertainment would include an eating house. An eating house to which is attached a permit room or beer bar to serve liquor or intoxicants can be a place of public entertainment. It would therefore not be correct to accept the submission that in a place of public entertainment, the area where liquor or intoxicants are not served is not an eating house and, therefore, the Act is not applicable. What the Court must examine while considering the amending Act, is the object behind the Act. In the instant case the object is to prohibit all forms of dancing in an eating house, beer bar or permit room which are derogatory to women as also expolitation of women. It must be presumed that the Legislature was aware of the various definitions. Otherwise if the argument on behalf of the petitioners is accepted, it may amount to an absurdity that the place where no liquor or drugs are sold is prohibited from having dance performance of any kind but in respect of those who have a license for public entertainment including an eating house having an attached permit room or beer bar there is no such ban. Such a construction also would defeat the main object of the legislation. The object is to ban dancing for reasons earlier stated in certain categories of hotels having an eating house and FL iii licence where liquor is sold. If the construction urged on behalf of the petitioner is accepted it would defeat this very object. The contention, therefore, as urged on behalf of the petitioners that their establishments are not covered by Section 33a of the Act has to be rejected. ( 24 ) DOES Prohibition of dancing, amount to discrimination against women and, therefore, violative of Article 15 (1): the submission of the petitioners is that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them as enshrined in Article 15 (1) of the Constitution of India. Women, it is submitted, constitute an overwhelming majority of bar dancers. The primary object and the direct and inevitable effect is the prohibition of dance performance by women in dance bars and thereby denial of employment opportunity mostly to women. Women, it is submitted, constitute an overwhelming majority of bar dancers. The primary object and the direct and inevitable effect is the prohibition of dance performance by women in dance bars and thereby denial of employment opportunity mostly to women. Therefore, the Stateaction in prohibiting dancing, infringes their fundamental right, by practising discrimination on them which is prohibited under Article 15 (1) of the constitution of India. In the present case the effect of the impugned amendment is that it disproportionately impacts women, on the basis of their sex and this was clearly foreseen and intended by the Legislature to so impact. It invades their right to equality, right of freedom of speech and expression, right to occupation or profession or right to livelihood. If the object of Article 15 (1) is considered it is bar on the State, amongst others not to discriminate against any citizen on the ground of sex. In the instant case is it so? From the averments of the petitioners and material which has come on record it would be clear that dancing in the exempted establishments was mostly performed by women. "the law banning dancing in some establishments and exempting other establishments, however, is not traceable to banning dances performed by women only. It is true that the preamble, the objects and reasons clause, and the reply of the state, indicates that it is to ban dancing by women, as will be discussed whilst discussing Article 14 of the Constitution of India. That, however, does not mean that dancing is being prohibited only on the ground of sex. What is being prohibited is dancing in identified establishments. No dancing is permitted in the establishments say by males. The argument could have been accepted if in the banned establishments dancing by males were permitted. The law makes no such distinction. The Act prohibits all types of dances in the banned establishments by any person or persons. Whether such a blanket ban is possible need not be answered, whilst answering the issue. Apart from that the direct and inevitable consequences on the fundamental rights of the dancers of carrying on the occupation or profession are being independently examined. The prohibition, therefore, applies to both men and women. Whether such a blanket ban is possible need not be answered, whilst answering the issue. Apart from that the direct and inevitable consequences on the fundamental rights of the dancers of carrying on the occupation or profession are being independently examined. The prohibition, therefore, applies to both men and women. That being the case, the argument advanced on behalf of the petitioners of violation of Article 15 (1) has no merits and consequently must be rejected" ( 25 ) THE Ban amounts to an unreasonable restriction on the fundamental right of the bar owners and bar dancers of free speech and expression guaranteed under Article 19 (1) (a):"the petitioners in Writ Petition Lodging no. 2338 of 2005, Writ Petition No. 2587 of 2005 and criminal Writ Petition No. 1971 of 2005 have also raised an issue that totally banning the performance of any form of dance in the banned establishments, is violative of the freedom of expression guaranteed by the Constitution under Article 19 (1) (a ). The arguments proceeds on the basis that dance is a form of expression and that cannot be disputed. Dancing, as an act of entertainment, is deeply rooted in this nation's history and tradition. Dancing is almost regarded as a national heritage. The stone carvings and pictures in "kailash Temple" at Ellora, Khajuraho and paintings at Ajanta, stands out as an evidence of history, traditions and cultural heritage of India. "the Vedas, Upanisadas, Sruties, Smrities, Puranas and other religious teachings or moral codes, along with traditions, followed in Ancient India, bears testimony to the fact that dancing has been considered as a mode of entertainment and has had earned social sanction even in the early vedic age. There is nothing brought on record to show that the dance performance in bars by its very nature is vulgar obscene or indecent. That burden was on the state, which has not been discharged. It is further submitted that the freedom of expression means the right to express one's convictions and opinions freely by word of mouth, writing, printing pictures or any other mode. This freedom to appeal to reason is the basis of democracy. That burden was on the state, which has not been discharged. It is further submitted that the freedom of expression means the right to express one's convictions and opinions freely by word of mouth, writing, printing pictures or any other mode. This freedom to appeal to reason is the basis of democracy. The freedom of singing and dancing is an important medium of expression and an integral part of freedom of speech and expression guaranteed under Article 19 (1) (a), in as much as it protects the right of the performer to perform and also protects the right of the viewer to view and watch to the performance. Reliance for that is placed in the judgment of in Maneka Gandhi vs. Union of India, AIR 1978 S. C. 597. where the Apex Court has held dance to be a part of the right guaranteed under Article 19 (1) (a ). This is what the Court said:-"similarly, the right to paint or sing or dance or to write poetry or literature is also covered by Article 19 (1) (a), because the common basic characteristic in all these activities is freedom of speech and expression, or to put it differently, each of these activities is an exercise of freedom of speech and expression. It would thus be seen that even if a right is not specifically named in Article 19 (1), it may still be a fundamental right covered by some clause of that Article, if it is an integral part of a named fundamental right or partakes of the same basic nature and character as that fundamental right. "a learned single Judge of the Calcutta High Court applied that principle in Mrs. Usha Uthup vs. State of 268 West Bengal, AIR 1984 Calcutta 268. ( 26 ) IT is then sought to be pointed out that the prohibition and/or restriction is impermissible and not protected by Article 19 (2) of the Constitution and in these circumstances the total banning of dance in the prohibited establishments affects the owners and the dancers of freedom of expression and is consequently violative of Article 19 (1) (a) of the constitution of India. "to consider this argument let us first examine as to whether dancing in dance bars would fall within the meaning of the word, the right to freedom of speech and expression or is dancing merely an occupation or profession. "to consider this argument let us first examine as to whether dancing in dance bars would fall within the meaning of the word, the right to freedom of speech and expression or is dancing merely an occupation or profession. The issue as to what would fall within the expression 'freedom of speech and expression' had come up for consideration before the Apex Court in Hamdard Dawakhana and Anr. Vs. The union of 554 India and Ors. , AIR 1960 S. C. 554. The issue before the Apex Court arose from the provisions of the Drugs and Magic Remedies (Objectionable advertisements) Act. The preamble to the Act set out that it was an Act to control the advertisement of drugs in certain cases and to prohibit the advertisement of magic qualities which the drug alleged to possess and to provide for matters connected therewith. The contention of the petitioner was that on the Act coming into force, they were experiencing difficulties in the matter of publicity for their products, as various objections were raised by the authorities in regard to their advertisements and they were informed that they had violated the provisions of the Act and consequently they were called upon to recall their products sent to various stations. Various representations thereafter followed and as no relief was granted, the act was assailed amongst others on the ground that it infringed the right of free speech under Article 19 (1) (a) and also the right to carry on trade and business. The Apex Court relied upon the judgments of the American Supreme Court for consideration of the issue of the nature of rights. The Apex Court in paragraph 17 of the Judgment observed thus:- "an advertisement is no doubt a form of speech, but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Article 19 (1) which it seeks to aid by bringing it to the notice of the public. It assumes the attributes and elements of the activity under Article 19 (1) which it seeks to aid by bringing it to the notice of the public. When it takes the form of a commercial advertisement which has an element of trade or commerce, it no longer falls within the concept of freedom of speech for the object is not propagation of ideas-socialpolitical or economic or furtherance of literature or human thought, but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines". The Court then observed as under:-"it cannot be said therefore that every advertisement is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas. In every case one has to see what is the nature of the advertisement and what activity falling under article 19 (1) it seeks to further. The advertisements in the instant case relate to commerce or trade and not to propagating of ideas; and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within Article 19 (1) (a ). The main purpose and true intent and aim, object and scope of the Act is to prevent self- medication or self-treatment and for that purpose advertisements commending certain drugs and medicines have been prohibited. . . . . . . "the Court then proceeded to observe that:-"freedom of speech goes to the heart of the natural right of an organised freedom-loving society to "impart and acquire information about that common interest". If any limitation is placed which results in the society being deprived of such right then no doubt it would fall within the guaranteed freedom under Article 19 (1) (a ). But if all it does is that it deprives a trader from commending his wares it would not fall within that term". "hamdard Davakhana (supra) was explained by the Apex Court in Tata Press Limited vs. Mahanagar telephone Nigam Ltd. and Ors. , AIR 1995 SC 2438 . The question before the Apex Court was whether commercial speech is denied the protection of Article 19 (1) (a) of the Constitution of India, merely because the advertisements are issued by businessmen. "hamdard Davakhana (supra) was explained by the Apex Court in Tata Press Limited vs. Mahanagar telephone Nigam Ltd. and Ors. , AIR 1995 SC 2438 . The question before the Apex Court was whether commercial speech is denied the protection of Article 19 (1) (a) of the Constitution of India, merely because the advertisements are issued by businessmen. The Court observed that "commercial speech" cannot be denied the protection of Article 19 (1) (a) of the constitution merely because the same are issued by businessmen. The Court observed that so far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. The protection of Article 19 (1) (a) is available to the speaker as well as to the recipient of the speech. The recipient of "commercial speech" may be having much deeper interest in the advertisement, than the businessman who is behind the publication. An advertisement giving information regarding a life saving drug may be of such more importance to general public than to the advertiser who may be having purely a trade consideration. Therefore, "commercial speech" is a part of the freedom of speech and expression guaranteed under Article 19 (1) (a ). In that case on behalf of the respondents relying on the observations in Hamdard Dawakhana (supra) it was contended that commercial advertisement is outside the concept of freedom of expression. The Court held that Hamdard Dawakhana's case primarily relied on the judgment of the United States Supreme Court in valentine v. Chrestensen (1941 (86) Law Ed. 1262) that purely commercial advertising is not protected by Article 19 (1) (a) of the Constitution. It was pointed out, that since then, the United State supreme Court has accepted purely commercial advertisement for a protection of the first amendment. Reference was then made to a judgment in indian Express Newspapers (Bombay) Private Ltd. and ors. vs. Union of India, AIR 1986 SC 515 wherein hamdard Dewakhana was explained by holding that the object of that Act was the prevention of self-medication and self-treatment by prohibiting instruments which may be used to advocate the same or which tended to spread the evil. The Apex Court then observed that it was of the view that all commercial advertisements cannot be denied the protection of article 19 (1) (a) of the Constitution merely because they are issued by businessmen. The Apex Court then observed that it was of the view that all commercial advertisements cannot be denied the protection of article 19 (1) (a) of the Constitution merely because they are issued by businessmen. Having said so the court held that a reading of Hamdard Dawakhana's case (supra) and the Indian Express Newspaper's case (supra) led to the conclusion that "commercial speech" cannot be denied the protection of Article 19 (1) (a) of the Constitution. " ( 27 ) DANCE admittedly is a form of expression whatever be the civilization aspect. Maneka Gandhi (supra) has recognised dance as part of fundamental right to freedom of speech and expression. It is, therefore, now accepted that dancing is a part of the fundamental right, being the "right to express". The question then would be whether dance in the form of entertainment for commercial purposes can be regarded as a part of "right of expression. Let us take an illustration. Firstly a group of people with a view to put across their point of view organise an entertainment programme which could be a dance performance with a view to attract an audience and not to economically benefit from the same, but raise issues of concern which may be political, social or economic, amongst those who participate or a wider audience through any form of media, electronic, press or any other form. They may or may not charge a fee for entrance. The Second illustration would be as in the instant case. A person running a business or trade with a view to attract a large clientele or to increase profit volumes or the like, organises or allows an entertainment programme with his business activities or as a part of or ancillary to his trade or business, as in the instant case in an eating house having a liquor license. In the first illustration the entertainment normally should fall within the expression "the right to speech and expression' as it is organised for putting across a point of view for those desirous of attending it. In the second case, it is ancillary to the right to carry on trade or business and in a case of the dance performers, right to an occupation or profession as the activity intends to promote the businessmen's trade and the dancers right to practice a profession or carry out an occupation. In the second case, it is ancillary to the right to carry on trade or business and in a case of the dance performers, right to an occupation or profession as the activity intends to promote the businessmen's trade and the dancers right to practice a profession or carry out an occupation. In a case where more than one fundamental right under Article 19 is involved or overlapping of fundamental rights, the doctrine of pith and substance could be applied as observed by H. M. Seervai in Constitutional Law of india, placing reliance in the judgment of Mathew J. in Bennet Colmen and Co. vs. Union of India, AIR 1973 s. C. 106. In the present case the owner of a premises having a licence for entertainment, contends that dancing apart from forming part of right to trade or business also forms a part of the fundamental right of freedom of expression. Applyingthe doctrine of pith and substance, on the facts and material on record, it will be open to the Court to record a finding of fact as to which fundamental right is being infringed. The fundamental rights conferred by our constitution are not absolute. Article 19 has to be read as a whole. The fundamental rights enumerated under Article 19 (1) are subject to the restrictions mentioned in clauses (2) to (6) of the said article. Hence, the correct way to describe the fundamental rights under Article 19 (1) is to call them qualified fundamental rights. ( 28 ) FREEDOM of speech and expression is the foundational basis from which all other fundamental rights spring and can be enjoyed. It will, therefore, be not possible to place limitations or boundaries on such a valuable right of expression except to the extent provided under Article 19 (2) as it is indispensible to all freedoms. This right is the basis of human personality and its advancement. Right of dissemination and information has constituted significantly to the onward march of civilisation. Freedom to express is integral to any democracy. It is not meant only, to refer to an individual right, but rather the right of community to be heard and be informed. Therefore, dancing as a form of entertainment would be an expression of one's thoughts and feelings conveyed to an audience or for ones own pleasure. Freedom to express is integral to any democracy. It is not meant only, to refer to an individual right, but rather the right of community to be heard and be informed. Therefore, dancing as a form of entertainment would be an expression of one's thoughts and feelings conveyed to an audience or for ones own pleasure. An artistic expression is a part of right of speech and expression and continues to be so, if the artist does it purely as a part of an art or incidental thereto and even if the artist seeks to commercially gain from it or as a part of an occupation, as long as it is not sought to be exercised in a premises which is licensed to another for carrying on trade and/or business or occupation, in which event that right would on the doctrine of pith and substance form a part of the right to freedom of occupation or profession. ( 29 ) THE petitioners have relied on several other judgments. We may advert to some of them. Reference may now be made to judgment of the single Judge of the Calcutta High Court in Mrs. Usha Utup vs. State of West Bengal and Ors. , AIR 1984 Calcutta, 268. In that case the petitioner an artist was refused permission to use a hall of a trust for a music performance. The learned Judge was considering both article 19 (1) (a) and 19 (1) (g ). The Court held that the public authority could not deny permission to the petitioner from performing the music performance as it violated Article 19 (1) (a ). The Court also held that by refusing permission it amounted to violation of the fundamental right to practice a profession or to carry on an occupation and this would be violative of Article 19 (1) (g) of the Constitution. We may now refer to the judgment in fertilizer Corporation Kamagar Union v. Union of india (supra) to test the correctness of the view that we have held, as to why on the facts of the case the fundamental right to 'expression' is not attracted. In that case the company wanted to sell certain plants and equipments which were redundant. We may now refer to the judgment in fertilizer Corporation Kamagar Union v. Union of india (supra) to test the correctness of the view that we have held, as to why on the facts of the case the fundamental right to 'expression' is not attracted. In that case the company wanted to sell certain plants and equipments which were redundant. The Union sought to intervene on the ground that they were persons aggrieved as their fundamental rights would be affected as it would jeopardise the employment of several thousand workers, who would subsequently face retrenchment and as such the right of the petitioners to carry on an occupation. Though this was a judgment under Article 19 (1) (g), to an extent, it indicates the rights of a party who also pleads violation of Article 19 (1) (a ). The contention of the workmen was rejected by holding that the right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post under a contract of employment. If the workers are retrenched consequent upon and on account of the sale, it will be open to them to pursue their rights and remedies under the Industrial laws. However, closure of an establishment in which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article 19 (1) (g) of the Constitution. The Court further held that even assuming that some of the workers may eventually have to be retrenched,it will not be possible to say that their right to carry on an occupation has been violated. It would be open to them, though undoubtedly it will not be easy, to find out other avenues of employment as industrial workers. Article 19 (1) (g) confers a broad and general right which is available to all persons to do work of any particular kind and of their choice. It does not cover the right to hold a particular job or to occupy a particular post of one's choice. Article 19 (1) (g) confers a broad and general right which is available to all persons to do work of any particular kind and of their choice. It does not cover the right to hold a particular job or to occupy a particular post of one's choice. Similarly if employed or on contract, a person is allowed to 'dance' in the licensed establishment of such others then in that event on that person losing the license the dancer who is prohibited from dancing cannot complain of violation of freedom, speech and expression, assuming that he could do so. ( 30 ) IN the instant case the dancers are not individuals contending that they are prevented from dancing. They dance or have a dance performance in premises of another, who had a performance licence. The law enacted by the State is not to have dancing in the prohibited establishments. The owner of a premises earlier could permit the activity of dancing, consequent on obtaining a license. The other activity is of eating house and permit room. The bar owner organises dance performance, for those who frequent his establishment by way of entertainment. The guest could partake services of eating house or permit room or could be visiting the establishment for the dance performance itself. The artists were, therefore, carrying on a profession in the licensed premises which are known as place of public entertainment pursuant to the licence held by the bar owner. Their right, therefore, flows from the right of the bar owner to have a licence for dance performance. The dancers are not prohibited or restricted from dancing elsewhere. Though dancing forms a part of speech and expression, it will not be possible to hold that every dancer who wishes to perform in a licensed premises of another, if denied the right to perform, such an act would be violative of the dancers right under Article 19 (1) (a ). The distinction in such an event will have to be made as to what was the main object of the dancer in dancing was the object to dance, as right to an occupation or profession or in the exercise of the right of speech or expression. That would depend on the facts and issues involved. The distinction in such an event will have to be made as to what was the main object of the dancer in dancing was the object to dance, as right to an occupation or profession or in the exercise of the right of speech or expression. That would depend on the facts and issues involved. A Lecturer in a college disseminating information to students or teaching them may be using his freedom of speech and expression, yet what he is doing in a lecture room is practising a profession. In the instant case the artistic expression of dance being prohibited in a particular establishment, which has no licence pursuant to the licence being cancelled, would not attract the right to freedom of speech and expression. On the facts of the instant case it would have to be held that the dancers presence in the premises was not with a view to espousing their right of speech or expression, but to carry on an occupation or profession. In fact in Writ Petition (Lodging) No. 2338 of 2005, the Petitioner organisations have argued that bar dancers are capable of dancing to existing Hindi films tunes. This is the only skill most of them possess and at the highest is a profession and/or vocation or occupation. ( 31 ) THUS dance performed by the dancer is not to express views held by the dancer or express their thoughts through the medium of dancing. What the dancer does by dancing is as an occupation or profession. In other words dance performed by the bar dancer would not fall within the expression speech and expression as the dancers activities are mainly to earn theirlivelihood by engaging in a trade or occupation. We are, therefore, of the opinion that the prohibition and/or restriction imposed does not directly interfere with the freedom of speech and expression and consequently there is no direct abridgement of the right of speech, but it incidentally interferes with such right and consequently there is no interference with Article 19 (1) (a) as it would not be attracted. We, therefore, have no hesitation in holding that in the instant case on the facts involved herein,the fundamental right affected is the right to carry on an occupation or profession guaranteed under Article 19 (1) (g) and not the fundamental right of speech or expression under Article 19 (1) (a ). We, therefore, have no hesitation in holding that in the instant case on the facts involved herein,the fundamental right affected is the right to carry on an occupation or profession guaranteed under Article 19 (1) (g) and not the fundamental right of speech or expression under Article 19 (1) (a ). The amending Act, therefore, need not be tested as to the requirements of Article 19 (2 ). ( 32 ) DOES the amendment violate the bar dancers right under Article 21 of the Constitution?:. On behalf of the petitioners, espousing the cause of the bar dancers and the bar dancers themselves , it is submitted that under Article 21 of the Constitution no person can be deprived of right to life except according to procedure established by law. The deprivation can be if there be a substantive law authorising such deprivation and the law provides for the mode for deprivation i. e. proceedings prior to deprivation. This is because the right to livelihood is a component of right to life as envisaged under Article 21 of the constitution. (See Olga Tellis and ors. vs. Bombay municipal Corporation and Ors. , (1985) 3 SCC 545 and consumer Education and Research Centre and Ors. vs. Union of India and Ors. , (1995) 3 SCC 42 . The ban on dance in the place of public establishment has undoubtedly taken away the bar dancers' right to livelihood. It is submitted that such deprivation can only be if the law meets the requirement of substantive as well as procedural due process. The substantive due process would be violated if (a) there is no possible alternative source for the dancers; (b) There is no rehabilitation or adequate compensation provided for the dancers; and (c) the ban is going to affect the dancers of their livelihood. In the instant case the Legislature has not provided for rehabilitation or compensation in the amending Act. In so far as the alternative source of livelihood, it must be borne in mind that most of the bar dancers are illiterate and do not possess any other skills. The impact of the ban has directly affected their livelihood. The earnings of the bar dancers were not very high and their expenses being very high. According to the contention they have no savings to fall back upon. The impact of the ban has directly affected their livelihood. The earnings of the bar dancers were not very high and their expenses being very high. According to the contention they have no savings to fall back upon. This has to be considered in the background that dancing as an occupation or profession is recognised as a fundamental right and until the impugned legislation came into force, it was a legitimate source of livelihood for the bar dancers, who are now rendered unemployed. While enacting a law, even if it be in furtherance of a directive principle, it cannot take away or affect what is set out in other directive principles like Article 39a which states that all citizens men and women equally have the right to adequate means of livelihood and Article 41 which states that the State within its economic capacity and development, has to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment. In response to the State's contention that they will provide for rehabilitation, it is submitted that such plan should have been before the amendment of the Act and in the absence of that the amendment cannot be rescued by subsequently formulating a scheme. It is sought to be pointed out that the statement of the state cannot be relied upon as in the past the government inspite of making promises to rehabilitate, over 1. 25 lakh mill workers rendered jobless due to closure of mills did not do so. It is also pointed out that in respect of the devastating earthquake at Latur and the 27th July, 2005 deluge in mumbai, no effective rehabilitation measures were taken and apart from that in respect of all major projects undertaken by the Government there never has been any effective rehabilitation. Considering that and as it would be difficult to prove the identity of bar dancers, many of them who were not employees the submission should not be accepted. ( 33 ) ON behalf of the State the learned Advocate general has made the following statement:- (1) The Government of Maharashtra is aware of and sympathetic to the need to rehabilitate bar girls affected by the provisions of the Bombay Police (Amending Act) 2005. ( 33 ) ON behalf of the State the learned Advocate general has made the following statement:- (1) The Government of Maharashtra is aware of and sympathetic to the need to rehabilitate bar girls affected by the provisions of the Bombay Police (Amending Act) 2005. With a view to ensure their effective rehabilitation and provide them with a dignified alternative vocation, the State Government will set up a special dedicated Cell to counsel, train and assist the bar girls to avail of the benefit of the various Government Schemes for employment including self employment so as to find an alternative vocation. This Cell shall be part of the women and Child Welfare Department. (2) If necessary, Government is also agreeable to set up a Special Committee to investigate into and suggest ways and means of providing a suitable dignified alternative vocation to the Bar girls who may have been displaced by the aforesaid legislation. . The Government has also annexed the material and government resolutions showing the various schemes that are in force for providing a means to livelihood. ( 34 ) IN the instant case the right to livelihood is affected on account of the direct effect of the act, banning dancing in the prohibited establishments. The direct effect of such closure has impacted the livelihood of the bar dancers. The question which we have to really answer is, whether by such closure the right to livelihood has been taken away. We may gainfully refer to the observation of the Apex Court in Sodan Singh (supra ). The Apex Court observed as under:-"we do not find any merit in the argument founded on Article 21 of the Constitution. In our opinion Article 21 is not attracted in a case of trade or business - either big or small. The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connected together. "in the case of Sodan Singh (supra) the issue was of hawking. The prevention of hawking activities directly affected the right to livelihood of the hawkers. The Court accepted that the right to hawking forms a part of the expression, occupation, trade or business. It would thus be clear that article 21 would be attracted in a case where the petitioners claim a fundamental right to carry on trade, business, occupation or profession. The Court accepted that the right to hawking forms a part of the expression, occupation, trade or business. It would thus be clear that article 21 would be attracted in a case where the petitioners claim a fundamental right to carry on trade, business, occupation or profession. At the same time the Apex Court in Sodan Singh (supra) also observed as under:-"an alarming percentage of population in india is still living below poverty line. There are millions of registered unemployed. Government, in spite of constitutional mandate is unable to provide them with employment. But when, by gathering meagre resources, they try to employ themselves as hawkers or street traders they cannot be stopped on the pretext that they have no right, rather the Government should render all help to rehabilitate them. "in the instant case as we have noted earlier these are women who are mostly semi-literate coming from socially and economically poor background. Many of them are widows, others have faced exploitation at the hands of their husbands or families. Still others have been unable to secure a job to maintain themselves and their families. In these circumstances even if they cannot claim right to livelihood it does not mean that while dealing with a marginalised section of the society, whose right to livelihood is taken away, the State is precluded from providing rehabilitation or taking steps for the rehabilitation. In Neeraja Choudhary vs. State of m. P. AIR 1984 SC 1099 in the matter of rescuing the bonded workers whilst preparing a scheme for rehabilitation, the Court observed that in such matters it is necessary to involve social action groups so as to identify the downtrodden and work towards their rehabilitation. In Vishal Jeet vs. Union of India, AIR 1990 SC 1412 the Apex Court in the matters pertaining to sex exploitation and children issued various directions to the State government and Central Government to constitute committees and set up welfare programmes for their benefit. In Gaurav Jain vs. Union of India, AIR 1997 SC 3021 the Apex Court again was pleased to issue direction for rehabilitation through various welfare measures so as to ensure their dignity of person, their means of livelihood and socio-economic empowerment. . In Consumer Education and Research centre and Ors. vs. Union of India and Ors. In Gaurav Jain vs. Union of India, AIR 1997 SC 3021 the Apex Court again was pleased to issue direction for rehabilitation through various welfare measures so as to ensure their dignity of person, their means of livelihood and socio-economic empowerment. . In Consumer Education and Research centre and Ors. vs. Union of India and Ors. (1995) 3 scc 42 , the issue before the Apex Court was in the matter of asbestos industry and the right of such workers to medical aid and service thereafter. The apex Court held that in those cases where workers were found to be suffering occupational health hazards, their right to health and medical aid is a fundamental right. In so holding the Court relied upon the preamble to the Constitution, the directive principle of State Policy and Universal Declaration of Human Rights. The Court observed that if the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude life of its effective content of meaingfulness but it would make lifeimpossible to live, leave aside what makes life liveable. . The Committee, if it needs to be appointed, can be on the basis of the statement made on behalf of the State of Maharashatra and the direction issued in the case of Gaurav Jain vs. Union of India, (1997) 8 SCC 114 . ( 35 ) AN additional argument was advanced that because of the prohibition of dancing by the dancers in the dance bars, their right to earn a livelihood is impaired and because their right to livelihood is affected they would be vulnerable to HIV/aids and other STI. It is true that bar dancers constitute a vulnerable section of the marginalised society. That,however, by itself does not mean that once their right of gainful employment or carrying on an occupation or profession in a particular place is prohibited, the probability of they seeking another profession endangers their health or the right to earn a livelihood. It is true that bar dancers constitute a vulnerable section of the marginalised society. That,however, by itself does not mean that once their right of gainful employment or carrying on an occupation or profession in a particular place is prohibited, the probability of they seeking another profession endangers their health or the right to earn a livelihood. This argument at least would not be available when a person seeks to carry on a profession or occupation of a sex worker, as sex work is recognised as immoral or an activity which is 'res extra commercium' and there can be no fundamental right to carry on an occupation or profession which is immoral as will be seen when we discuss Article 19 (1) (g ). Therefore, that issue will have to be examined in the context as to whether the prohibition imposed by Section 33a, has affected the right to livelihood of the bar dancers. If the argument of the petitioner bar girls are accepted, then in a case of closure of industries, loss of crops on account of famine, where the earning capacity of the person is lost, thereby affecting means of health care the right to livelihood would be infringed. This the state provides in the form of health care in public hospitals and dispensaries and thus to a large extent takes care of the health of its citizen. The right to health is no doubt incidental to the right to life. Considering the above in our opinion that issue really does not arise. ( 36 ) IS the impugned amendment violative of article 14 of the Constitution of India. The following contentions will have to be examined in order to answer the issue:- (1) What is the object of the Legislation; (2) Is the classification founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group. (3) Does such differentia have a rational nexus and/or relation to the object sought to be achieved by the Statute in question. (4) Classification being merely a judicial formula for deciding whether a legislation or administrative action is arbitrary, is the prohibition on dancing, imposed by Section 33a unreasonable and/or arbitrary. We may advert to the pleadings in Writ petition No. 2450 of 2005 for that purpose. (4) Classification being merely a judicial formula for deciding whether a legislation or administrative action is arbitrary, is the prohibition on dancing, imposed by Section 33a unreasonable and/or arbitrary. We may advert to the pleadings in Writ petition No. 2450 of 2005 for that purpose. The dances, performed in various 'dance bars,' as called in colloquial language, are usually performed by artistes who imitate dances performed in various hindi Movies. The dresses worn by dancers in these bars are usually traditional Indian Dresses like sarees, ghagra cholis or salwar kameez unlike the dresses worn by dancers in movies. Similarly the movements and gestures are far more decent and orthodox than those in movies. The dances performed in dance bars are neither obscene, vulgar nor indecent. The dance performances as held in the establishments of the members of the petitioner No. 1 and as described in Writ Petition No. 2450 of 2005 is as under:-1. Girls/women wearing traditional Indian outfits like salwar kameez, sarees or ghaghra cholis etc. dance on a stage provided in the restaurants. 2. There is no physical contact between dancers and customers. 3. Utmost precaution is taken that no customer touches any dancer. 4. Songs are played by either a live orchestra and Band or by recorded music. The songs played are from Hindi films and neither the lyrics nor the music is changed in any manner. 5. Dancers perform in a manner similar to the dances in films and their gestures and movements are the same as those made by artistes in the songs. 6. Customers desiring to give tips, hand over the same to waiters who hand the same over to the dancers, hence there is no scope for any physical contact between dancers and customers. 7. Separate air-conditioned, changing/dressing rooms with attached toilets are provided for dancers; 8. Escorted conveyance is provided to dancers to and from their respective homes to the restaurants. 9. Food and beverages are provided to the artistes. . In contrast, it is set out that in discotheques, young boys and girls wearing hardly any clothes and revealing dresses, dance in each others arms. The said couples are known to consume alcohol and even new age drugs and all kinds of immoral activities are being openly carried on there. 9. Food and beverages are provided to the artistes. . In contrast, it is set out that in discotheques, young boys and girls wearing hardly any clothes and revealing dresses, dance in each others arms. The said couples are known to consume alcohol and even new age drugs and all kinds of immoral activities are being openly carried on there. During navratri festival there are programmes called Dandiya nights where young boys and girls wearing revealing and sexy outfits, dance in proximity to each other. There are no restrictions on these youngsters about the dresses worn by them or the gestures made by them. The ban does not cover these dances. The state, it is set out, is adopting double standards by allowing these activities where indecent clothes, movements and immoral activities in the name of high society are permitted whereas, establishments where there is no physical contact are sought to be closed down. The ban seeks to completely wipe out the performance of dances which as a form of entertainment/amusement, is accessible to the common man while the same dancers can perform the same dances for the rich audiences in Three Star Hotels and above. The establishment of the petitioners are frequented by tourists from all over the world who come to watch the dance. Impressed and inspired by the dance bars of Mumbai, Restaurants and Bars having music and dance have opened up in Dubai, Singapore, london, Malasya, Muscat, Bahrein, Sri Lanka, etc. where dancers are specially taken from India and other parts of the world to perform there. The excuse sought to be given for exempting hotels of three Star and above categories from the ban also does not hold good. The ban which seeks to ban dancing in Restaurants and Bars alone, is discriminatory and violative of Article 14, which prescribes that the differentia has to be intelligible. Dances are permitted in Three Star Hotels and above and also in clubs or gymkhanas. . Entry is permitted in clubs and gymkhanas not only for members but also for their guests. They are permitted to hold dance performances. Hence although they are similarly situated to carry on business, they have been exempted from the said ban. The fact that dance performance can be permitted in Three Star and Five star hotels and/or any Gymkhana, etc. Entry is permitted in clubs and gymkhanas not only for members but also for their guests. They are permitted to hold dance performances. Hence although they are similarly situated to carry on business, they have been exempted from the said ban. The fact that dance performance can be permitted in Three Star and Five star hotels and/or any Gymkhana, etc. , clearly shows that the purpose is not to curb exploitation of women and/or avoid vulgarity, but the same is to promote the interests of hotels with larger resources at the cost of eating houses, permit rooms and beer bars with moderate resources, which cater to all classes of people. The amending Act, therefore, is clearly discriminatory and there is no nexus between the proposed prohibition and the intended result. The impugned amendment, therefore, has to be struck down on the touchstone of Article 14 of the Constitution of India as being clearly discriminatory. In addition in Criminal Writ Petition No. 1971 of 2005, it is pleaded that the State has not banned Tamashas. ( 37 ) ON behalf of the State of Maharashtra Youraj laxman Waghmare, Deputy Secretary, has filed an affidavit in reply. It is set out that the concept of dance bars thrived after 1980s. The owners of permit rooms and beer bars with a view to attractcustomers, introduced dance shows where extremely young girls many of whom are minors, started dancing to tunes of recorded music tunes. It was brought to the attention of the Government that these eating houses, permit rooms or beer bars to whom licence to hold dance performances has been granted were permitting the performance of dances in an indecent, obscene and vulgar manner. The dancing girls invariably used to be clad in dresses, apparently for name's sake traditional, but truly revealing female anatomy. These girls would dance in a peculiar manner with constant eye contact with certain customers and with such body movements so as to attract the attention of customers and entice them, so that they would be showered with currency notes by the customers. There used to be virtually a competition amongst the dancing girls to attract the attention of the customers so as to be showered with the maximum amount of currency notes. These girls were found to be using various tactics to lure the customers and attract their attention. There used to be virtually a competition amongst the dancing girls to attract the attention of the customers so as to be showered with the maximum amount of currency notes. These girls were found to be using various tactics to lure the customers and attract their attention. With the kind of cash money that was being generated every night after night after night at such places, the dance bar activity started being afflicted by various crimes and became pick up joints for prostitution by the bar girls. The group of female dancers mingle with the customers sitting in these restaurants and bars or even in the passages, on the loud and sensuous music. During the dance performance, these female dancers come close and in physical contact with the customers present. They deliberately dance in such a manner so as to lure the passion of the customer in a derogatory manner in order to solicit handsome cash rewards in return. The dance steps are vulgar and of a manner that are unknown to any known or established dance form and is performed with the sole objective of rousing the physical lust amongst the customers present. The customers in that state are being provoked and prompted to shower the currency notes. The bar owners provide the facility of changing large currency notes of Rs. 500/- or Rs. 1000/- into bundles of Rs. 10/-, or Rs. 50/- or Rs. 100/- to the customers. The customers would then themselves stand next to the girls while they were dancing and shower these currency notes on the girl who they fancied. After showering notes, the waiters and employees of the bar, after each song was over, would pick up the currency notes from the floor and stash them away. The money which was showered would be shared between the bar owners and the dancers in varying ratios depending from dance bar to dance bar. The customers who showered the money would very often be favoured for extra attention by the dance girls. The sole object of conducting these dances was not amusement, but collection of huge cash from the customers, which was thereafter shared between the dancers and the bar owner. These dance performances were neither entertainment nor art. Many of these establishments were running beyond the time prescribed and invariably permitting indecent dance performances. The sole object of conducting these dances was not amusement, but collection of huge cash from the customers, which was thereafter shared between the dancers and the bar owner. These dance performances were neither entertainment nor art. Many of these establishments were running beyond the time prescribed and invariably permitting indecent dance performances. Establishment of such place of public entertainment having such performances were creating numerous problems including problems of law and order. Performance of these dances were nothing but exploitation of women at very young age many of whom were minors. With the object to prevent the eating houses, permit rooms or beer bars from conducting dances which were derogatory to the dignity of women and to prevent depravity, corruption or injury to public morality or morals, the said amendment has been brought about. Complaints had been received to point out that under the guise of dance bars prostitution was being conducted in the places. Bar owners were exploiting the bar girls for commercial gain. Many dance bars were situated on the ground floor of residential buildings and women and young girls from the building were subjected to daily harassment, stress and mental trauma whenever they returned home in the evening or late at night after dinner, etc. , to face a crowd of lascivious men customers who would hang around in and outside the dance bars and make indecent comments and gestures. Various cases were registered under the PITA Act as also under Section 294 of I. P. C. Number of offences were also committed in dance bars and also vicinity thereof. It is thus averred that the Legislature has treated dance performance being conducted in eating houses, permit rooms or beer bars as a separate class by itself. At the exempted establishments also, such performances are not being permitted under Section 33 (B ). The dominant object of the amended Act is to prevent dance performances which are derogatory to the dignity of women and likely to deprave, corrupt and injure the public morality and morals. The exempted establishments are also not permitted to conduct any form of such dances, which are derogatory to the dignity of women and likely to deprave, corrupt and injure the public morality and morals. In the exempted establishments also such dance performances are not going to be permitted even under section 33 (B ). The exempted establishments are also not permitted to conduct any form of such dances, which are derogatory to the dignity of women and likely to deprave, corrupt and injure the public morality and morals. In the exempted establishments also such dance performances are not going to be permitted even under section 33 (B ). The exemption to these establishments in other words is not an indirect licence to the exempted establishments to perform dances as in the prohibited establishments but to conduct performance by persons who have acquired skill in western classical and Indian classical dance forms. The exempted establishments are subjected to the conditions of obtaining necessary permission, licence from various authorities for each performance they intend to hold in their establishments. The authorities have an opportunity to screen and supervise the nature of performances in these establishments. The exemption for holding dance performances in the three starred or above hotels is with the object of encouraging tourism and the same is in consonance with the tourism policy of Central and State Government. Even otherwise five star hotels are a class by themselves and cannot be compared with dance bars. It is a distinct category. The persons visiting these hotels or establishments stand on different footing and cannot be compared with people who attend the establishments which are popularly known as dance bar. They belong to different strata of society and are class by themselves. There are only six such star hotels, holding licence and covered by the exemption provided under Section 33 (B) of the amended provisions. The class of establishment covered by Section 33 (B) are those conducted by responsible persons/management who are conscious of their social commitments and obligations. These are the types of establishment, which have never conducted any activity of the kind that was being conducted at the dance bars. Theestablishments covered by Section 33b are clearly distinguishable and separable from the establishments of dance bars. If the object of the amendment is taken into consideration it will be clear that the dance performances that may be conducted at establishments covered by Section 33 (B) are not like the one that are intended to be prohibited by the impugned amendment. ( 38 ) IN rejoinder on behalf of the petitioners the allegations as set out in the affidavit in reply of waghmare have been denied. ( 38 ) IN rejoinder on behalf of the petitioners the allegations as set out in the affidavit in reply of waghmare have been denied. It is set out that a perusal of the gestures and dance performance in the exempted establishments, would prove beyond reasonable doubt that the respondents were adopting hostile attitude towards the dance bars and the allegations about indecency and vulgarity are all aimed at the petitioners members, whereas obscene and indecent activities in the form of fashion shows and beauty pageants, dance and performances by dance troupes from abroad are considered to be 'decent' only because the Venue is in Star Hotels and High class places which are visited by film stars, the very rich and elite families. . The averments and pleadings of the petitioners in the other petitions are more or less same or similar and hence need not be adverted to. ( 39 ) BEFORE dealing with the challenge we may briefly consider the law on the touch stone of the test of classification. We may set out some of the tests as were reiterated by the Apex Court in shashikant Laxman Kale and Anr. vs. Union of India and anr. , (1990) 4 SCC 366 , by quoting from the decision in Re the Special Courts Bill, 1978:-" (a) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or class of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. (b) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. (c) The principle underlying the guarantee of article 14 is not that the same rules of law should be applicable to all persons within the Indian Territory or that the same remedies should be made available to them irrespective of differences of circumstances. Classification is justified if it is not palpably arbitrary. (c) The principle underlying the guarantee of article 14 is not that the same rules of law should be applicable to all persons within the Indian Territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. (d) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive. (e) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. (f) The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon person arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned. (g) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. (g) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. " ( 40 ) THE submissions on behalf of the petitioners may now be briefly set out. Section 33 (B) of the impugned act seeks to exempt certain establishments from the ban imposed under Section 33a. Hence the mask of purported immorality alleged against the bar dancers can continue in the establishments exempted under Section 33 (B ). The differentia must have a rational relation to and should have a nexus to the object sought to be achieved by the statute. No conditions have been prescribed in respect of the establishments covered under Section 33 (B ). The same rules and regulations which governed the banned establishments are alpplicable to the exempted establishments. As a result the same dancers who are prohibited from performing the same dance in a prohibited establishment are permitted to dance in the exempted establishments. The purported immorality gets converted to virtue by a mere change of locus. For breach committed by the Licensees in the category of section 33 (B) at the highest their licences can be cancelled, but in case of the petitioners' members the business is completely closed. There is a discrimination between the dancers in various establishments and the distinction sought to be made amounts to micro distinction between the class of dancers who in terms of dancing are a homogenic lot and class by themselves. (See A. V. Channaiah vs. State 294) of A. P. and Ors. 2005 1 SCC 294 ). The object of the impugned legislation asthe State has urged is to prohibit obscene, indecent and vulgar dance performance. Section 33a and 33b have created two classes of establishments. The net result is that dance which is not obscene, vulgar and indecent is not prohibited in the exempted establishment under section 33b whereas dancing in any form including which is not obscene, vulgar and indecent is prohibited in all establishments covered under section 33a. Section 33a and 33b have created two classes of establishments. The net result is that dance which is not obscene, vulgar and indecent is not prohibited in the exempted establishment under section 33b whereas dancing in any form including which is not obscene, vulgar and indecent is prohibited in all establishments covered under section 33a. Equality is the basic feature of the constitution and any treatment of equals unequally, or unequals as equals would be violative of Article 14, as the Article bars discrimination and prohibit discriminatory laws. Section 33a discriminates between artists i. e. dance girls dancing in dance bars and Tamasha theatre and at the same time discriminates between the viewers visiting dance bars and Tamasha. Criminal cases under Section 110 of the bombay Police Act as also under Section 294 of the i. P. C. have been registered against the Tamasha theatre. If the object of prohibiting dance performance in a dance bar was to prevent exploitation of women or women trafficking such object cannot be achieved so long as Tamasha theatre, three star and other exempted establishments are allowed to hold dance performances. There was no material before the legislature in support of banning dance bars or permitting Tamasha theatre and dancing in other exempted establishments. There can be no different standards of morality for the affluent and the rich for availing the means of entertainment in the exempted establishments and any common person who can afford to visit place of entertainment within their reach. Reliance is placed in the case of charanjit Lal 41 vs. Union of India, AIR 1951 S. C. 41; to the Judgment in Shri Ram Krishna Dalmia vs. Shri justice S. R. Tendolkar and Ors. , AIR 1958 S. C. 538, as also to the State of U. P. Vs. Kaushalya and Ors. , air 1964 S. C. 416. ( 41 ) THE entire argument of the petitioners proceeds on the footing that there is no rationale for exemption in favour of the exempted establishments as both are similarly situated and consequently Section 33a is violative of Article 14 of the Constitution. A perusal of para. 31 to 34 of the reply filed by Youraj Laxman Waghmare shows that there are only six Hotels from the exempted category which have got public entertainment and public amusement licence. No complaint of any kind has been received against those six institutions. A perusal of para. 31 to 34 of the reply filed by Youraj Laxman Waghmare shows that there are only six Hotels from the exempted category which have got public entertainment and public amusement licence. No complaint of any kind has been received against those six institutions. Is it possible to classify the establishment based on the type of dance being performed in the establishments? if the classification is possible then does it have a rational nexus with the object of the amending Act. ( 42 ) IN a challenge to a legislation under Article 14, there is no question of application of mind or non-application of mind by the Legislature to the material. Also there can be no question of malafides or lack of good faith on the part of the legislature whilst enacting the law. Even though the executive in a given case may have an ulterior motive in moving a legislation that cannot render the passing of the law malafide. (See K. Nagaraj vs. State of A. P. and ors. , AIR 1985 S. C. 551. If a reform is introduced it can be done gradually. Not including all does not make including some invalid. Javed and Ors. Vs. State of Haryana (2003) 8 S. C. C. 369. While considering a challenge to the constitutionality of a provision, the Courts must bear in mind that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. It must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. The Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. In order to sustain the presumption of constitutionality the Court may take into consideration, matters of common knowledge, matters of common report, the history of the times and may assume every state of fact which can be conceived existing at the time of legislation. In order to sustain the presumption of constitutionality the Court may take into consideration, matters of common knowledge, matters of common report, the history of the times and may assume every state of fact which can be conceived existing at the time of legislation. While good faith and knowledge of the existing conditions on the part of a Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. It is settled law that there can be no objection to material being brought to the notice of the Court by an affidavit along with what is specified in the preamble and the statement of object and reasons of the statute itself, in order to ascertain whether there was any valid basis for treating those covered by the Act or excluded by the act as a distinct class by itself. ( 43 ) THE initial burden to prove that the classification is unreasonable and/or has no nexus with the object sought to be achieved is on the petitioners. The petitioners have to allege and establish by cogent material that other persons or establishments similarly situate, have been left out and the petitioner and their establishments have been singled out for discriminatory and hostile treatment. (See Shri Ram Krishna Dalmia and Ors. vs. Shri justice supra) S. R. Tendolkar and Ors. (supra ). Once the initial burden is discharged the State will have to satisfy the Court that the twin tests are satisfied. This finds support in the Constitution Bench judgment of the Apex Court in D. S. Nakara and Ors. Vs. Union of India, (1983) 1 SCC 305 which has been followed in b. Prabhakar Rao and Ors. Vs. State of Andhra pradesh and Ors. 1985 (Supp.) SCC 432 and in State of maharashtra vs. Manubhai P. Vashi and Ors. (1995) 5 scc 730 . It may be noted that in Nakera (supra) the court noted that Article 14 does not merely forbid discrimination, but the Act must not be arbitrary. The rule of parity is the equaltreatment of equals in equal circumstances. 1985 (Supp.) SCC 432 and in State of maharashtra vs. Manubhai P. Vashi and Ors. (1995) 5 scc 730 . It may be noted that in Nakera (supra) the court noted that Article 14 does not merely forbid discrimination, but the Act must not be arbitrary. The rule of parity is the equaltreatment of equals in equal circumstances. The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects, so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of condition. Equality does not connote absolute equality. A classification in order to be constitutional must rest upon discriminations that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category. (See State of Kerala and Anr. Vs. N. M. Thomas and Ors. , 1975 (2) SCC 310 ). While considering the validity of legislation as we have noted earlier it is open to the State to file affidavits and it is for the Courts to consider the same. However, the validity of the legislation is not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the Court may ultimately find and more especially by what may be gathered from what the legislature has itself said. Courts are not really to concern themselves with the hollowness or the self-condemnatory nature of the statements made in the affidavits filed by the respondents to justify and sustain the legislation. The deponents of the affidavits filed in the Court, may speak for the parties on whose behalf they swear to the statements. Courts are not really to concern themselves with the hollowness or the self-condemnatory nature of the statements made in the affidavits filed by the respondents to justify and sustain the legislation. The deponents of the affidavits filed in the Court, may speak for the parties on whose behalf they swear to the statements. They do not speak for the Legislature. Once a statute leaves the Legislative House, the Court is the only authentic voice which may echo (interpret) the interest of the Legislature. This the Court will do with reference to the language of the statute and other permissible aids. (See Sanjeev Coke manufacturing Company vs. M/s. Bharat Coking Coal ltd. and Anr. , AIR 1983 SC 239 ). ( 44 ) AN argument was advanced that the establishments which are prohibited under Section 33a and those which are exempted under Section 33b constitute a class by themselves in as much as in all these establishments liquor, beer and wine are sold. The establishments have common characteristics. It was,therefore, not open to the State to make mini classifications amongst persons in the same group and for that purpose reliance was placed on the judgment of the Apex Court in E. B. Chinnaiah vs. State of a. P. 394 and Ors. , (2005) 1 SCC 394 . In that case the state of A. P. had enacted a legislation for sub-classifying Scheduled Castes into sub-divisions. The Court was examining whether such a sub-division within a class is permissible. The Court noted that all the castes in the Schedule are deemed to be a class. The issue, therefore, was whether further classification amongst a class of scheduled castes for the very same object of providing reservation is permissible and if so, would it stand the test of article 14 of the Constitution. Relying on the observation in the case of State of J. and K. v. Triloki Nath Khosa, AIR 1979 SC 1 , the Court held that as members of scheduled caste form a class by themselves any further sub classification would be impermissible. While applying the principles of classification the Court quoted the observations from triloki Nath Khosa, that mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality. While applying the principles of classification the Court quoted the observations from triloki Nath Khosa, that mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality. The Court then held that the castes are recognised pursuant to the presidential Notification deserving of special protection and once the constitution itself has recognised the castes, it was not open for the State to make a further sub classification. . In the instant case what the Legislature has done is to recognise the establishments having an eating house, permit room or beer bar into two distinct classes. The classification unlike in the case of E. B. Chinnaiah is not based on a constitutional requirement. The classification is based on the type of dancing in the establishment which has a license for a place of public entertainment and another license for a place of public amusement. Such a classification is permissible. See State of kerala and Anr. vs. N. M. Thomas (1976) 2 SCC 310 , where Mathew J. , observed that it is a mistake to assume that there can be no classification within a class. If there are intelligible differentia which separate a group within that class from the rest and that differentia has a nexus with the object of classification, there is no objection to a further classification. However, such classification must meet the tests as set out earlier bearing in mind the nexus with the object of the Act. ( 45 ) THE judgment of the learned Division Bench of the A. P. High Court was relied upon on behalf of the petitioners in the case of Big Way Bar and Restaurant and etc. vs. Commissioner of Police, Hyderabad and anr. , 1360 2003 Cri. L. J. 1360. In that case the power was conferred on the Commissioner to grant licences under the Hyderabad Public Amusement Rules. The commissioner on the ground that some of the licences were conducting dance in an obscene manner and cases were booked against them for violation of conditions of license, imposed total prohibition prohibiting music and singing and dances in some establishments while permitting dancing in other establishments. The establishments where licence could be granted for music, singing and dancing were the four star and five star hotels. The establishments where licence could be granted for music, singing and dancing were the four star and five star hotels. It may be noted that in that case, it was an exercise of power by the Commissioner, who on account of activities in a class of bars took a policy decision of imposing total prohibition. It further appears that no material was placed by the state in support of the classification. In the present case it is the legislature which has categorised the establishments having licences for eating houses, beer bars or permit rooms into two different classes. In paragraph 65 of the judgment, the Court recorded a finding that neither the Act nor the rules empower the Commissioner of Police to completely prohibit conduct of singing, music and dance programmes, in public places of amusement in the interest of general public. The power conferred on the Commissioner was to refuse to grant a licence if, in his opinion, they are obscene or immoral. It would thus be clear that the Commissioner though had the power to frame the scheme for providing guide-lines for running bars and restaurants and providing punitive measures, had no power to totally prohibit or restrict as has been done by the legislature in the instant case and as such the policy decision to prohibit dancing or music and singing in a class of establishments was held to be arbitrary. Though the judgment could be distinguished on the ground that there was no power in the Commissioner, the observation quoted below will have relevance in deciding the controversy in issue. Dr. AR. Lakshmanan, J. (as his Lordship then was) speaking for the Division Bench in the case of exercise of discretion by the Police Commissioner prohibiting dance in a challenge under Article 14 observed as under:-"the policy decision of the respondents would be unreasonable and cannot be sustained for yet another reason. By reason of the impugned policy decision not to grant any amusement licences to any bars and restaurants in the state other than four star and five star hotels, an unreasonable classification has been made between the two sets of categories or hotels or restaurants. There is no guarantee that the four star and five star hotels will not indulge in such activities. We are unable to comprehend what object the State would like toachieve by making such classification. There is no guarantee that the four star and five star hotels will not indulge in such activities. We are unable to comprehend what object the State would like toachieve by making such classification. The activity in both the categories of hotels/restaurant is one and the same. As rightly contended by the learned Counsel appearing for the petitioners the classification made by the respondents between four star and five star hotels as one group and the other star hotels as other group is not a reasonable classification as in both the cases the permission relate to only music, signing and dancing. The action of the respondents, in our considered opinion, would amount to selective discrimination, offending the provisions of Article 14 of the Constitution of India. The classification is not founded on an intelligible differentia and there is no rational relation to the object sought to be achieved by the policy decision under challenge. As already indicated above, there is no guarantee that the four star and five star hotels will not indulge in prohibited activities. Further, the Act nor the Rules framed thereunder allow such classification between the same set of persons. " ( 46 ) WE may now examine whether the petitioners have prima facie discharged the burden placed on them to show that the classification is not founded on any intelligible differentia. The classification may be based on conditions which are geographical or according to object or occupation or the like. The contention on behalf of the State and as argued before this Court by the Advocate General sets out that the impugned Act is aimed at prohibiting activities which are harmful and/or have a tendency and capacity to be even more harmful to public morals and morality and exploitation of women and the legislature has, therefore, in its wisdom taken a conscious decision. The object of the impugned legislation is to prohibit dances which are vulgar, obscene, indecent and as such derogatory to the dignity of women and are likely to deprave, corrupt and injure public morality and morals and further exploitation of women. In the instant case, material had to be placed by the petitioners, to show that dance as performed in the banned establishments were also being performed in the exempted establishments and or the nature of the dance performed is irrelevant. In the instant case, material had to be placed by the petitioners, to show that dance as performed in the banned establishments were also being performed in the exempted establishments and or the nature of the dance performed is irrelevant. From the material placed on behalf of the commissioner of Police it would be clear that number of licences issued in so far as the banned establishments was 345 and in so far as exempted establishments are only six. The petitioners, however, contend that there are atleast another 1000-3000 establishments in which bar dancing is going on and whose applications are pending before the Competent Authority either pursuant to orders of the Court or otherwise. This is seriously disputed on behalf of the State. Whatever be the position they belong to the class of banned establishment. The exempted establishments having a P. P. A. license as demonstrated by the figures are negligible. Dancing is both an art and a form of relaxation. Dancing may partake of various forms. Couples may dance together to relax or for entertainment of others. Skate dancing as a sporting activity is one illustration. Ballroom dancing another. There are then other various forms of dancing embedded in the culture of our regions. There could be a dance performance by a homogenous groups of males and/or females and or a heterogeneous group of female and male dancers, watched by a participating audience and or the like. The case of the petitioners themselves is that in their establishments, what is being performed are dances copied from Hindi films. In other words a species of dance. The State has placed material on record in the form of reports and the affidavit of Waghmare to show that dancers in the prohibited establishments are being showered by cash, which money was collected and shared and appropriated not only by the dancers themselves, but shared between the owners of the establishments and the dancers in varying percentages. Though there has been denial by petitioners in Writ Petition No. 2450 of 2005, nonetheless the specific averments by the state have not been specifically denied. Apart from that, the reports of Prayas and Chapekar would clearly indicate that money is being thrown at the bar dancers which is collected and shared between the bar dancers and the bar owners. Though there has been denial by petitioners in Writ Petition No. 2450 of 2005, nonetheless the specific averments by the state have not been specifically denied. Apart from that, the reports of Prayas and Chapekar would clearly indicate that money is being thrown at the bar dancers which is collected and shared between the bar dancers and the bar owners. In other words the owners of the establishment were themselves getting a percentage of money from the dance performance of the dancers. The State's contention is that such conduct of dance is not amusement, but collecting of large amounts of cash from the customers. It will not be possible to accept the case of the State that this would not amount to dancing. The fact, however, would remain based on the various reports including s. N. D. T. and Prayas that the persons who visit the establishments of the petitioners atleast some of them either voluntarily or otherwise part with money, as the hotel owners themselves have made arrangements to exchange high currency notes into low currency notes. The money collected by the dancing girls is shared between the girls and the bar owners in varying percentage. It would thus be clear that the type of dancing in the banned establishments has its own characteristics. It cannot, therefore, be said that the classification of the establishments in which a particular type of dance is being performed does not constitute two distinct classes and/or amounts to mini classification amongst dancers and consequently would be contrary to Article 14 of the constitution. We have earlier set out that the object was to ban dance performances which tend to deprave, corrupt and injure public morality and morals and are thus derogatory to the dignity of women. From the S. O. R. the other object is exploitation of women. As women other than dancers can work in the dance bars, the object would be exploitation of women dancers. The dances performed, therefore, in the prohibited establishments have a characteristics and traits of their own and can be said to constitute a distinct class by themselves. The classification need not be scientifically perfect or logically complete or which may satisfy the expectations of all concerned. In welfare Association, A. R. P. Maharashtra and Anr. Vs. Ranjit P. Gohil and Ors. , (2003) 9 SCC 358 . The classification need not be scientifically perfect or logically complete or which may satisfy the expectations of all concerned. In welfare Association, A. R. P. Maharashtra and Anr. Vs. Ranjit P. Gohil and Ors. , (2003) 9 SCC 358 . The apex Court observed as under:"it is difficult to expect the legislature carving out a classification which may be scientifically perfect or logically complete or which may satisfy the expectations of all concerned, still the court would respect the classification dictated by the wisdom of the legislature and shall interfere only on being convinced that the classification would result in pronounced inequality or palpable arbitrariness on the touchstone of Article 14. "we thus hold that the exempted establishments and prohibited establishments constitute two distinct classes based on the type of dance performance. The s. O. R. and the amendment itself, indicate the basis of the classification on the type of dance performed inthe establishments. The establishments have not been closed down or prevented from obtaining a licence for place of public amusement. The prohibition is limited to the type of the dance performed in the prohibited establishments. The state, therefore, has treated the prohibited establishments as a class by itself, distinct from the exempted establishments. ( 47 ) ANOTHER argument advanced on behalf of the petitioner is that respondents have clubbed all disparate forms of dances that are performed in the banned establishments both decent and indecent in one class and this by itself would be violative of article 14 of the Constitution of India. It is submitted that while all forms of dancing whether decent or indecent is prohibited in the banned establishments the dancing whether obscene, vulgar or indecent performances are not prohibited in three star and above hotels and it is for the State to appropriately satisfy that the twin tests have been satisfied. In the reply filed by Waghmare in Writ petition No. 2027 of 2005, it is set out that the exemption is for holding dance performance in sports clubs, gymkhana and three star and above grade of hotels by the renowned national and international artists having acquired skills in the Western classical and Indian Classical dance forms. As the petitioners themselves have pointed out, for having a dance performance, a licence has to be obtained. The license imposes conditions which bars indecent and/or immoral dancing. As the petitioners themselves have pointed out, for having a dance performance, a licence has to be obtained. The license imposes conditions which bars indecent and/or immoral dancing. There can, therefore, be no question, of the State permitting dance in the exempted establishments which are immoral or vulgar. The submission, therefore, on the part of the petitioners that the State has clubbed all dancing both decent or indecent in the prohibited establishments whilst allowing all forms of dances in establishments which are exempted, really does not arise as there cannot be dancing which is immoral or vulgar in any establishments. The classification is being upheld in view of the traits and characteristics of the dance and not on the basis whether it is vulgar or indecent. ( 48 ) THE issue still remains and which requires to be answered is whether the legislation prohibiting all forms of dancing in the prohibited establishment is arbitrary, as classification is merely a judicial formula for testing whether the legislation is arbitrary. Merely because there are two identifiable classes will not satisfy the other requirement that the classification has to have a reasonable nexus with the object of the legislation. If the object of the legislation is to prohibit dances which are immoral, indecent, obscene being derogatory to woman and or which exploit women, then how can a dance which is not immoral, indecent, obscene and which does not exploit women, be prohibited. Classification, by itself is not sufficient to relieve a statue from satisfying the mandate of the equality clause of Article 14. To be within its reach it must be demonstrated that the classification is based on an exercise of intelligent care and deliberation and bears a close nexus with the object and is not arbitrary. The Act has treated the distinct nature of dances performed in the two establishments for the purpose of a valid classification. The Act however, does not only prohibit the type of dance, based on which classification is upheld, but it goes on to prohibit all forms of dancing in the prohibited establishments. Was it permissible for the legislature to prohibit all forms of dancing in the prohibited establishments irrespective of the type of the dance, for example, the same or similar dances that are being permitted in the exempted establishments. Was it permissible for the legislature to prohibit all forms of dancing in the prohibited establishments irrespective of the type of the dance, for example, the same or similar dances that are being permitted in the exempted establishments. That burden the State must discharge both on the ground that it does not discriminate between the two classes of establishments but also that it is not arbitrary. How is a person having a licence for a place of public entertainment which may be upto a Grade II Hotel, different from a person who is having a licence for a place of public entertainment of Grade III and above as also a Club, etc. Grading of the hotel depends on the money invested to provide facilities to the customers. Waghmare in his affidavit states that the kind of persons visiting the Three Star hotels, clubs and other establishments which are exempted are different and the owners of such establishments are known for their social responsibilities. Waghmare was perhaps not aware of what the Apex Court noted in Gaurav Jain vs. Union of India and Ors. , 1997 8 SCC 114 in the matter of prostitution in five star hotels. This is what the Apex Court said: "prostitution in five-star hotels is a licence given to persons from higher echelons. " this has only been set out to point out that activities which the banned establishments are accused off are also indulged in the exempted establishments, in spite of the so-called strata of society who visit them or in Waghmare's words that they are socially conscious or responsible. Waghmare's affidavit further sets out that it is only dances which are not vulgar or obscene which only will be allowed to be performed in the exempted establishments. The provisions for controlling obscene and vulgar dances are the same, whether they be in the prohibited establishments or exempted establishments. ( 49 ) WE may at this stage note that arguments were advanced as to what is obscenity. For the purpose of our discussion we may only refer to the judgment of the Apex Court in Ranjit D. Udeshi v. The State of maharashtra, AIR 1965 SC 881 . The Apex Court has noted that the test of obscenity as laid down by cockburn C. J. , has been unformally applied in India. The test is:-". . . . The Apex Court has noted that the test of obscenity as laid down by cockburn C. J. , has been unformally applied in India. The test is:-". . . . I think the test of obscenity is this whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. . . . It is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thought of amost impure and libidinous character. "it is thus clear that stress is laid on the expression 'tendency to deprave and corrupt'. Admission to the prohibited establishments as also the establishments which have a liquor permit or beer bar is 25 years or 21 years respectively and voluntarily. In other words it is only an adult audience, who can frequent the place of public entertainment having a performance licence to witness the dance. The test, therefore, would be whether those dances in the minds of those who visit those establishments can be said to have a tendency to deprave and corrupt. The test of obscenity and vulgarity will therefore, have to be judged from the standards of adult persons who voluntarily visit these premises. That does not mean that because only adults frequent these premises the State cannot impose restrictions. It has so done by making Rules and it is within its competence to impose reasonable restriction. ( 50 ) THE Rules for licensing made under the Bombay police Act impose conditions to ensure that the dance performance held are not obscene or against public morals. The State, wherever there has been violation of the terms of license has taken steps. Neither the s. O. R. or the Preamble or the provisions of the Act or the call attention motion, indicate that the existing mechanism was not sufficient to prohibit dances in the banned establishment. When the desire was felt of putting additional restriction a committee was appointed which framed guidelines. The government directed the rule making Authorities to notify the guidelines into Rules which was not done. There is also power to suspend and cancel the licence. The State from the material produced on record has so acted. When the desire was felt of putting additional restriction a committee was appointed which framed guidelines. The government directed the rule making Authorities to notify the guidelines into Rules which was not done. There is also power to suspend and cancel the licence. The State from the material produced on record has so acted. In these circumstances must the establishments amongst the prohibited establishments who have acted within the bonds of law be treated in the same manner with those who may have breached the law? Even amongst those who may have breached hte law, but whose licences has not been cancelled, must they be prohibited from having similar dances as in the exempted establishments. Amongst those who violated the terms of the licence, the competent authorities in most cases did not feel the need to cancel the performance licence, but suspended the licence or issued a warning. This indicates that the dance performance was not such as to be derogatory to women or immoral warranting cancellation of licence. If, therefore, the kind of dance performed is the basis of valid classification then how does the State justify the prohibition of all forms of dancing in the prohibited establishment.