Andhra HC (Pre-Telangana)
3 Aces A Partnership Firm vs Commissioner Of Police, Hyderabad City ... on 23 October, 1981
ORDER
1. The petitioner is a partnership firm. It runs a Bar and a Restaurant in Abid Road, Hyderabad, under the name and style of "3 ACES". For some time past it was conducting cabaret dances in its "3 ACES" hotel premises. These dances are open to the public on payment. Public congregate at these dances. They not only watch the dances but also eat and drink. Generally they come there to relax in the evenings and let themselves go. The Hyderabad City Police Act (hereinafter called 'the Act') considers the conducting of public entertainments and public amusements in the City of Hyderabad as involving problems of law and order. The Act, therefore, requires a licence from the Commissioner of Police, Hyderabad for the conducting of these cabaret dances in the city. After the last licence had expired, the petitioner applied to the Police Commissioner for the grant of a fresh licence for the period commencing from 1-1-1981 and ending with 31-3-1981. The City Police Commissioner refused that application of the petitioner. The order of refusal dt. 27th February, 1981, the legality of which is challenged in this writ petition, reads as follows :
ORDER
1. The Manager of 3 ACES Bar and Restaurant, Abid Road, Hyderabad, vide his application cited requested for the grant of police permit to hold cabaret shows in the said Restaurant for a period of three months from 1-1-1981 in to 31-3-1981.
2. It is seen from the records that during the year 1980, 17 cases were booked against the cabaret dancers and the management for contravening the conditions, of the Police licence. The details of the cases are given below :-
1. Petty Cases Nos. 99/80, 100/80, 101/80, 102/80 dated 30-1-1980.
2. Petty Cases Nos. 243/80, 244/80, 245/80 dated 4-3-80.
3. Petty Cases Nos. 1083/80, 1084/80 dated 14-8-80.
4. Petty Case No. 1237/80 dated 11-9-80.
5. Petty Case No. 1389/80 dated 23-10-1980.
6. Petty Case No. 103/80 dated 30-1-1980.
7. Petty Case No. 246/80 dated 4-3-1980.
8. Petty Case No. 780/80 dated 15-6-1980
9. Petty Case No. 1085/80 dated 14-8-1980.
10. Petty Case No. 1238/80 dated 11-9-1980.
11. Petty Case No. 1390/80 dated 23-10-1980.
Cases Nos. 1 to 5 for contravening Conditions Nos. 5 and 6 of the police licence.
Cases Nos. 6 to 11 for contravening condition No. 10 of the police licence.
Out of the (17) cases, 10 cases ended in conviction. 2 cases ended in acquittal and remaining five cases vide No. 1083/80, 1084/80, 1085/80, 1385/80, 1390/80 are still P.T.
3. The unit has been convicted in 10 cases and five cases are still pending trial. From the above it is evident that even alter suspension of the licence for one day as a token punishment (vide proceedings No. L&O/A3/765/77 dated 13-5-1980, the management has not learnt any lesson and still continuing the habit of contravening, the conditions of the police licence.
4. In view of the Management's unabated violations of the conditions of the licence, application for grant of cabaret licence for the quarter ending 31-3-1981 is rejected with immediate effect."
Sd/-
Commissioner of Police."
2. It is not in dispute between the parties that running of cabaret dances in any public place in the city of Hyderabad like conducting of any other public amusement or holding of any public entertainment requires obtaining of a licence from the Police Commissioner. The Hyderabad City Police Act is enacted for the avowed purpose of ......... "maintenance of peace ......" Sub-clause (f) 11 of that Section 21(1) authorises the Police Commissioner to make rules requiring obtaining of licence for opening a place of public amusement or place of public entertainment. The relevant parts of S. 21(f) read thus :-
"The Commissioner of City Police, Hyderabad may from time to time make rules not inconsistent with this Act in respect of the following :-
Licensing for or regulating the following matters :-
(i) the keeping of a place of public amusement or place of public entertainment."
In exercise of the aforementioned statutory provisions, the Commission made the rules called the Hyderabad Public Amusement Rules. R. 112 which is the relevant of those rules reads as follows.
"Cases in which licence for play and performance shall be refused."
112. (1) The Commissioner of police shall be authorised to refuse any or all the dramas and demonstrations mentioned in such application if in his opinion they are :-
(a) obscene,
(b) adverse or comprised of undesirable persons.
(c) revolting or causing political unrest.
(d) injuring the religious feelings of any person or class of persons.
(e) may disturb public safety or create feelings of hatred among different communities or
(f) Objectionable for any other reason.
(2) Notwithstanding that the licence for demonstration has been issued the Commissioner of Police shall be authorised to stop the play of any drama ........."
3. From the above quoted order of the Police Commissioner, it is clear that the Police Commissioner refused to cc grant licence to the petitioner on two related grounds : (a) that the petitioner in the immediately preceding past was guilty of violating the conditions of in licence earlier granted to him authorising him to run cabaret dances. The nature of violations mentioned was that the cabaret dancers had stripped themselves of their clothes and indulged in indecent acts and that the petitioner permitted the same, thus violating conditions of the licence particularly condition No. 10. (b) The granting of licence to such a person would amount to licensing the running of obscene dances to the public which the Act and the Rules regard as objectionable for the maintenance of peace in the city of Hyderabad.
4. The petitioner challenges the validity of this order of the City Police to Commissioner on the following grounds : (1) The Commissioner erred in taking into account the convictions recorded is by the criminal Courts against the cabaret dancers and the petitioner for violation of the conditions of licence. (2) The afore-mentioned rules, more particularly, R. 112 is bad as its purpose is to enforce morals which is not part of the purpose of the Act. (3) The word "obscene", occurring in the rules sets up a vague standard for refusing licence and is therefore in violation of the petitioner's fundamental rights guarantees under Arts. 19(1)(a) and 19(1)(g) of the Constitution. (4) The order of the Police Commissioner is bad for reason of violation of principles of natural justice.
5. A perusal of the impugned order shows that during the year 1980, 17 criminal cases were booked against the cabaret dancers and the management of "3 ACES" Hotel for contravention of conditions Nos. 5, 6 and 10 of the licence and that many of those cases ended in convctions before the criminal Courts. That order also speaks of the imposition of punishment of suspension of licence in the past which obviously failed to produce any deterrent effect on the petitioner.
6. It is not in dispute between the parties that the criminal Courts found the petitioner guilty of violating condition No. 10 and the cabaret dancers violating conditions Nos. 5 and 6. Let us read conditions Nos. 5, 6 and 10.
Condition No. 5 :- The cabaret artist should not strip her clothes under any circumstances and shold not indulge in indecent or lewd gestures."
Condition No. 6 :- The cabaret artist should not indulge in indecent or vulgar or obscene exposure of her body."
Condition No. 10 :- It should be the responsibility of the management to ensure that the above conditions are strictly implemented. Any violation of the above conditions may result prosecution and/or cancellation of licence." In criminal cases where the cabaret dancers were charged for violating conditions Nos. 5 and 6 and where the petitioner was charged for violating condition No. 10, the accused entered plea of guilty and accordingly, were convicted. The Police Commissioner took that conduct of the petitioner into account in refusing the licence. But now the first point the petitioner argues is that the Police Commissioner ought not to have taken those convictions by the criminal Courts into account for refusing the licence to him. The argument of the petitioner is that those convictions were the result not of contest but of consent induced by the fear generated in the accused that the contesting of those criminal cases which involving several adjournments, would have been costlier to defend than admission of guilt. This no doubt amounts to saying that in the State Criminal Courts earning of acquittal is much worse for the accused than being convicted. Whatever may be the merits of the condemnatory implications of this argument of the petitioner as applied to the general administration of criminal justice in the State, I find the argument to be too far-fetched and far-stretched for any reasonable acceptance in this case. Arguably there may be an element of plausibility in the above explanation advanced by the petitioner, so far as the cabaret dancers, who are alleged to he coming from outside the State are concerned. But so far as the petitioner who is locally stationed is concerned, I cannot find any element of acceptability in the above explanation. Without fear of losing his money or business the petitioner who is locally stationed, could have defended himself. The charge against the petitioner involved more than a mere technical offence to justify the sufferance of a conviction. The reason now given by the petitioner for not defending such a criminal charge, cannot therefore be accepted as genuine. Admission of guilt before the criminal Court, therefore cannot now be attributed to anything other than the fact of willing violation of the licensing conditions committed by the petitioner. As the statutory provisions and conditions of licence deal with such a situation of violation of conditions of licence, I find that the licensing authority committed no error in law in taking those facts into consideration. Condition No. 10 clearly warns a licensee that his failure to see that the cabaret dancers observe Conditions Nos. 5 and 6 would result in his a prosecution and cancellation of licence. Statutory provisions like S. 84 Clause (2) of the above Act contemplate suspension and revocation of licence on the ground that conditions of licence have been infringed or evaded or the licensee was convicted of an offence in any matter which relates to such licence. If the Statute has made the observance of the conditions of licence so essential obviously for the purpose of maintenance of City peace and provides for the cancellation of licence for violation of those conditions, the Police Commissioner, in my opinion, cannot be blamed for taking that conduct into account in refusing to grant the licence. It may however be a argued, although it is not said in this case, that those circumstances which in the immediate past would have justified revocation or suspension of licence are not expressly made into justification for refusing to grant licence now. But this line of reasoning, in my opinion, cannot be regarded as legally well-founded. On the authority of Jaffe this argument may be answered by saying that the power to revoke a licence implies and comprehends the power to refuse a licence. It is a well recognised fact of our modern life that of all the regulatory procedures, "the licensing procedure is potentially the most drastic". Generally such a drastic procedure is used for achieving three different but closely related purposes, (a) to limit entrance to a person into a field on the ground of need and nature of activity, (b) to establish conditions of performance to be observed by the licensee, (c) to police the conditions of performance of that activity. In the present case, the Act does not seek to promote the first objective and it has no objection for anybody conducting public amusement or public entertainment. But the Act seriously concerns itself with overseeing that carrying on of those activities would not endanger the City peace. The Act, in the form of licence, therefore, imposes stringent conditions for performance of licence. For achieving the same purpose the Act he also imposes conditions for policing by authorising revocation. In other words, the Act seeks to regulate the conducting of public amusements in order to achieve the second and third purposes mentioned above. The power to grant his a licence under the above Act implies the use of that statutory power to deny a licence to a potential law-breaker. In other words, the grant of licence under the above Act to any person will be conditional on the assurance that the city peace would not be breached by the arts of licensee himself. The Act and the Rules proceed on the assumption that the maintenance of peace in the city would not be possible if sex orgies are permitted as a part of these public entertainments. That is the reason behind the conditions of licence Nos. 5, 6 and 10. Those conditions in my opinion, are not unrelated to the object of maintenance of peace. If the licensee permits or encourages the so-called cabaret dancers to go naked and publicly come into bodily contact with the drunken customers, maintenance of peace in this heterogeneous City of Hyderabad may well be difficult. The character and the conduct of the licensee would therefore, be clearly relevant for the grant or refusal of a licence. The second and third purposes mentioned is above are generally achieved by law by conferring power on the authorities to revoke an existing licence or by conferring power to refuse a new licence on the same grounds and not merely by punishing post hoc. Post mortem alone cannot be effective. To revoke an existing licence and the power to refuse to grant new licence are not treated as two separate powers. They are both treated as equivalent to one another and the former implying the latter. (see generally on all this. "Administrative Law, Cases and Materials". Third Edition by Jaffe and Nathanson, pages 15 and 16). The provisions of Sections 21(f) and 84 Clause (2) of the Hyderabad City Police Act would, in my opinion, authorise the Police Commissioner not only to revoke an existing licence but also to refuse to grant a licence on the ground that the applicant cannot be trusted to observe the conditions of licence. R. 112 above referred to puts the question beyond controversy. If the character and the conduct of the licensee render him unworthy to exploit a licence while he holds one, the same character would clearly make the licensee unworthy to be a grantee of a fresh licence. The same conduct that would be relevant to order his discontinuance from the activity would also justify the passing of an order refusing subsequent entry into that activity. Where the purpose of the granting of a licence is to ensure the maintenance of peace by the method of guaranteeing adherence to the conditions of licence it would amount to acting outside the scope of law to grant a fresh licence to the very person who had earlier by his conduct of non-observance of the conditions of licence shown himself to be unworthy to hold it. It follows therefore, that the refusal of the licence to the petitioner on the basis of criminal convictions is wholly legal.
7. The next argument of the petitioner is that those very conditions of the licence and R. 112 are all ultra vires of the rule-making power of the Police Commissioner, because they are all intended, according to the petitioner, to enforce morals which it is argued forms no part of the Act. In support of this argument, reliance is placed upon the words, obscene and immoral occurring in the above mentioned Rule 112 and is argued that prohibition contained in conditions 5 and 6 of the licence against stripping of clothes is for enforcing morals. I find it difficult to accept this argument. In my opinion, the prohibition contained in condition No. 5 and condition No. 6. it against the stripping of clothes and exposure of body by the cabaret dancers is imposed not for the purpose of enforcing any morals but only for the purpose of maintenance of peace. The fact that private nude exhibitions are not banned under the above Act, appears to me to be conclusively against the petitioner. The present ban is conceivably based not on moral grounds but on consideration of law and order. What may be permissible to be done in private would often become forbidden it when lone in public. The Act is concerned with maintenance of peace in the heterogeneous City of Hyderabad. The type of public entertainments conducted in these places in the name of cabaret dances by exposure of female body draws in large numbers of those who are aesthetically desiccated, socially defiant, culturally deviant and psychologically despondent. Seeking true or false release from the daily burdens of the life's dead routine, at least some out of these congregants easily get drunk, Intoxicated by liquor and excited by sex exposure and uninhibited by cultural restraints some of those among this apolaustic crowd may, as detailed in the counter-affidavit of the Police Commissioner in this case, offer serious threat to city peace. The Police Commissioner told in his counter-affidavit how one robbed another here. There, one may also molest another; one might event knife another. The character and the composition of the crowd that gathers there is such. The Western examples are not comparable to our native situations. There, familiarity produced by their common life-styles and ordinary no dress patterns do prevent the nudity from releasing the individual from social restraint. Here, novelty arouses the sub-conscious libido which intoxication imbalances. The Act and the Rules and the conditions of licence complained against are all statutory attempts to meet that situation. It is not an attempt to enforce morals. The Police Commissioner may be credited with intimate knowledge of the unfamiliar and the little-known in the underworld of the city crime. The conditions of the licence are directly and immediately connected to the purposes of maintenance of peace and have nothing to do with the carrying on of dancing and drinking. Whether these conditions are stringent and whether to conceivably alternative conditions would not do depend upon a variety of factors relating to the police organization in the city and the general conditions of peace prevailing in the city. Judgment in those matters of means must primarily be left to the Police Commissioner who has a statutory duty to keep peace and has a specialist knowledge and official experience of night-life in the city. Too much interference by this Court with his judgment in such sensitive matters may not be conductive to produce good results and would not be consistent with his statutory responsibility to maintain peace in the city. His judgment as to how to maintain peace in the city should normally be respected by this Court. In these areas of money making by the peddlers of sex orgies the judicial review should not be too intensive as it should he in the area of basic freedoms. Only then his failure to preserve the city peace can be blamed on him. The Bombay case reported in (1975) 77 Bom LR 218 and the unreported judgment of the Delhi High Court relied upon by the petitioners are the concerned with a different legal question. They involve interpretation of the words "causing annoyance" occurring in S. 294 of Indian Penal Code. There the Courts found that sex orgies do not cause annoyance to those who willingly sought admission to those shows and paid for them. Those cases are not and cannot be the authority on the question of maintenance of peace in the City of Hyderabad, under the Hyderabad City Police Act. Those cases, therefore, do not have any relevance to the present controversy. Here we are not concerned with the question of annoyance. Our concern is peace. I accordingly hold that the rules and the conditions of licence are intended for the maintenance of peace in the City of Hyderabad and not for the enforcement of morals.
8. But I add to mention that the object of maintenance of peace cannot be so completely severed from and removed so far away from the object of morals generally accepted by the society. The poet sang of "Pure religion breathing household laws" as conducive for good society. However logically the legal positivists may argue, law absent moral substance remains a brute force, fit to be trampled upon and consigned to flames of rebellion. Law to be useful to the community should be salted with morals. Without moral flavour law loses its smoothening effect and without moral flavour law loses its sweetening aroma. I accordingly reject this argument.
9. It is next argued that R. 112 and the conditions of the licence are unconstitutional. The argument of the petitioner is that the word 'obscene', occurring in R. 112 sets up a vague standard to deny the grant of licence and the licensing conditions are bad on the ground of their imposing unreasonable restrictions. It is said that for these reasons both the rule and the conditions of the licence are void as being opposed to Art. 19(1)(a) and Art. 19(1)(a) of the Constitution.
10. It is well-known that the concept of "obscenity" has presented itself most difficult problems of definition to the American Supreme Court. Earl Warran, the Chief Justice who from that High Bench did more than most others for the protection of individual liberties admitted after his retirement that "obscenity is the Court's most difficult arena of adjudication." In Cohen v. California ((1971) 403 US 15) Justice Harlan said "one man's vulgarity is another man's lyric." Justice Stewart confessed in Jacobellis v. Ohio ((1964) 378 US 184) to the difficulty of defining the word "obscenity" by observing that "I know it when I see it." Yet, the prohibition contained in the conditions of licence in our case against stripping clothes and vulgar exposure of naked body cannot, but be regarded as obscene (sic). Those prohibitions in licence are specific and admit of no charge of uncertainty. As applied to the licensing conditions in this case, I therefore hold that the word "obscene" is certain and specific. In a particular context, exposure of the body associated with an expression of a feeling or an idea may or may not be regarded as "obscene". But it can be said without fear of contradiction that an elemental act of baring the female breasts and stripping clothes that cover private parts indulged in as done in these cabaret dances without ever being touched up at any stage by the rhythmic beauty of context or resonance of exposition is utter vulgarity without any socially redeeming quality in it. One of the undoubted achievements of the American Supreme Court is not only to successfully nationalize the basic human rights but also to internationalize the fundamental human freedoms. The claim of Bernard Schwartz that "the true American contribution to human progress has not been in technology, economics, or culture; it has been the development of the notion of law as a cheek upon power", can never be regarded by any serious student of Constitutional Law as to an exaggeration even in bits. But we must realise that there are dangers inherent in indiscriminate adoption of American cases and American standards of reasonableness to the Indian conditions. What is considered reasonable in San Francisco night-club may not be regarded ipso facto as reasonable in Hyderabad. The reasonable restrictions which are in this area of the Indian Constitution cannot be identical with those approved by the American Supreme Court. The cultural variation between the two countries calls for different constitutional approach, altho' in the matter of protection of preferred freedoms the approach may almost be identical. Reasonableness subject to a degree of minimum safegaurds to commercial freedoms need not be uniform in all societies. I find that this Case presents no problem of free speech. To earn the high appellation of free speech. To earn the high appellation of free speech and to deserve the sanctimoniously appropriate constitutional protection, the act in question must, in some measure or degree, be an expositor of ideas, thoughts or feelings, The cabaret dances contain no such exposition of ideas or emotions. They cannot therefore be regarded as part of free speech or expression. And therefore no question of Constitutional protection to such acts can arise. Viewed as a business right under Art. 19(1)(g), it must be noted that the width of permissible State restrictions under Art. 19(6) is far wider. No business can be permitted to be carried endangering city peace. The present restrictions preventing the as naked exposure of the human body can At clearly be justified under the head in the general interest. I therefore cannot see any element of unreasonableness in banning the naked and vulgar exhibition of human body for commercial purposes, I therefore cannot hold that in such a restriction there is any denial of free speech or expression ar the right to trade involved. I accordingly reject this argument also.
11. The only other point of the petitioner's argument is that the order of the Police Commissioner was passed in violation of principles of natural justice, because the petitioner is given no opportunity to make representation or to explain before his application for licence was rejected. It has already been noticed that the licence was refused on the ground that some of the conditions of licence have been violated by the petitioner. It has also been noticed in that the Statute authorises the Police Commissioner to revoke licence on the ground of violation of licence which implies a right of refusal to grant a licence also. It is not in dispute that the petitioner had violated the licensing conditions. In the face of record of the criminal court no such argument could ever be made. In these circumstances where refusal is based on the record of convictions of the criminal court on the ground that licensing conditions Nos. 5, 6 and 10 had been violated natural justice does not call for going thro' the formal ceremony of notice-giving. No serious complaint can be made by the petitioner on the ground of violation of principles of natural justice. Accordingly, I also reject this point.
12. No other point has been argued.
13. This writ petition is accordingly dismissed with costs. Advocate's fee Rupees 500/-.
14. W.P. No. 2935/81 :- The facts and circumstances and the arguments in this case are almost exactly identical to those mentioned in W.P. 1251/81. For the reasons which I have given in my judgment in dismissing the W.P. No. 1251/81, I dismiss this writ petition also with costs. Advocate's fee Rs. 500/-.
15. Petitions dismissed.