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14.

• That with regard to Article 19(I) (g) there is no absolute right to conduct trade or profession and that the same is subject to public order, decency and morality and hence the restriction is reasonable and justified.

• That there is no violation of Article 21 as special cell has been constituted by Women and Child Welfare Department to train and assist the "bar girls" in availing benefits of the various Government Schemes for employment and providing alternative dignified vocations.

57. It was also submitted that in the present case the dance is conducted in an obscene manner and further the dance bars eventually happen to be pick up locations that also propagate prostitution in the area, which is sought to be prevented by the legislation. The appellants also relied on the judgment in Regina Vs. Bloom[19]. In this case, the appellants were proprietors of the clubs who were charged with keeping a disorderly house, which arose out of matters that occurred in course of strip tease performances. The Court of Criminal Appeal (England) held that as regards the cases in which indecent performances or exhibition are alleged, a disorderly house is a house conducted contrary to law and good order in that matters performed or exhibited are of such a character that their performance or exhibition in a place of common resort amounts to an outrage of public decency or tends to corrupt or deprave the dignity of women and public morality. Therefore in the present circumstances, the State, in the interest of dignity of women, maintenance of public order and morality has banned dances in such establishments where regulation is virtually impossible. Since the obscene and vulgar dancing is a res extra commercium, the establishments cannot claim a fundamental right to conduct dance therein.

72. Since the High Court has accepted the submissions made on behalf of the respondents (writ petitioners in the High Court), it shall not be necessary to note the submissions of the learned senior counsel as elaborately as the submissions of the appellants herein. Mr. Mukul Rohatgi submitted that, at the heart of the present case, the controversy revolved around the right to earn a livelihood more so than the right of a person to choose the vocation of their calling. It was submitted that apart from the reasoning given in the judgment of the High Court, the challenge to the impugned legislation can be sustained on other grounds also. He submits that a classification of the establishments into three stars and above, and below is not based on any intelligible differentia and is per se discriminatory and arbitrary. Bar dancers have a right to livelihood under Article 21 and the ban practically takes away their right to livelihood. He therefore, submits that the ban is violative of Articles 14, 19(1)(a) and 19(1)(g) and 21 of the Constitution. Relying on the observations made by this Court in the case of I.R. Coelho (Dead) by LRs. Vs. State of T.N.[29], he submits that these articles are the very heart and soul of the Constitution and are entitled to greater protection by the Court than any other right. Mr. Rohatgi submits that the submissions made by the appellants with regard to the protecting the dignity of women and preventing trafficking in women are misconceived. There are adequate measures in the existing provisions, licensing conditions which would safeguard the dignity of women. Relying on Sections 370 and 370A of the IPC, he submits that there are adequate alternate mechanisms for preventing trafficking in women. Elaborating on the submissions that dance is protected by Article 19(1)(a) of the Constitution being a part of fundamental right of speech and expression, he relied upon the observations made by this Court in Sakal Papers  (P) Ltd. & Ors. Vs. The Union of India[30]. He has also made a reference to some decisions of the High Court recognizing that dancing and cabaret are protected rights under Article 19(1)(a). He points out that it is always open to a citizen to commercially benefit from the exercise of the fundamental right. Such commercial benefit could be by a bar owner having dance performance or by the dancers themselves using their creative talent to carry on an occupation or profession. The impugned amendment prohibits the bar owners from carrying on any business or trade associated with dancing in these establishments and the bar girls from dancing in those premises. He then submits that the amendment violates Article 19(1)(g), by imposing restrictions by way of total prohibition of dance. Even though the freedom under Article 19(1)(g) of the Constitution is not absolute, any restriction imposed upon the same have to fall within the purview of clause 6 of Article 19. Therefore, the restriction imposed by law must be reasonable and in the interest of general public. It was also submitted that while such restriction may incidentally touch upon other subjects mentioned above, such as morality or decency, the same cannot be imposed only in the interest of morality or decency. Mr. Rohatgi then submitted that the reasons set out in the objects and reasons of the amendment are not supported by any evidence which would demonstrate that there was any threat to public order. There is also no material to show that the members of the Indian Hotel and Restaurants Association were indulging in human trafficking or flesh trade. Therefore, according to Mr. Rohatgi, the ban was not for the protection of any interests of the general public. In fact, Mr. Rohatgi emphasised that the Statement of Objects and Reasons does not refer to trafficking. The compilation of 600 pages given to the respondents by the appellants does not contain a single complaint about trafficking. All allegations relating to trafficking have been introduced only to justify the ban on dancing. He, therefore, submits that the total ban imposed on dancing violates the fundamental right guaranteed under Article 19(1)(g). Learned senior counsel further submitted that dancing is not res extra commercium. He emphasised that if the dancing of similar nature in establishments, mentioned in Section 33B is permissible, the prohibition of similar dance performance in establishments covered under Section 33 cannot be termed as reasonable and or “in the interest of general public”. Therefore, according to Mr. Rohatgi, the restrictions do not fall within the scope of Article 19(6). He relied on the judgment of this Court in Anuj Garg & Ors. Vs. Hotel Association of India & Ors.[31], wherein a ban on employment of women in establishment where liquor was served, was declared discriminatory and violative of Articles 14, 15, 19 and 21. In this case, it was held as under :

102. We fail to see how any of the above observations are of relevance in present context. The so called distinction is based purely on the basis of the class of the performer and the so called superior class of audience. Our judicial conscience would not permit us to presume that the class to which an individual or the audience belongs brings with him as a necessary concomitant a particular kind of morality or decency. We are unable to accept the presumption which runs through Sections 33A and 33B that the enjoyment of same kind of entertainment by the upper classes leads only to mere enjoyment and in the case of poor classes; it would lead to immorality, decadence and depravity. Morality and depravity cannot be pigeon-holed by degrees depending upon the classes of the audience. The aforesaid presumption is also perplexing on the ground that in the banned establishments even a non-obscene dance would be treated as vulgar. On the other hand, it would be presumed that in the exempted establishments any dance is non-obscene. The underlying presumption at once puts the prohibited establishments in a precarious position, in comparison to the exempted class for the grant of a licence to hold a dance performance. Yet at the same time, both kinds of establishments are to be granted licenses and regulated by the same restrictions, regulations and standing provisions.