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Vanga Seetharamamma Vs. Chitta Sambasiva Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 537 of 1961 and Criminal Revn. Petn. No. 474 of 1961
Judge
Reported inAIR1964AP400; 1964CriLJ264
ActsSuppression of Immoral Traffic in Women and Girls Act, 1956 - Sections 20; Constitution of India - Articles 14, 19(1), 19(5) and 19(6)
AppellantVanga Seetharamamma
RespondentChitta Sambasiva Rao and anr.
Appellant AdvocateG.V.R. Mohanarao, Adv.;Public Prosecutor
Respondent AdvocateJ.V. Suryanarayanarao, Adv.
DispositionRevision dismissed.
Excerpt:
(i) criminal - constitutional validity - section 20 of suppression of immoral traffic in women and girls act, 1956 and articles 14, 19 (5), 19 (6) and sub-clauses (d), (e) and (g) of article 19 (1) of constitution of india - petitioner found guilty of running brothel in place of residence rented out to her by respondent - section 20 of act conferring power on magistrate to direct petitioner to vacate place of residence and not to enter limits of municipality without court's permission - order passed by magistrate in exercise of powers conferred by section 20 - whether section 20 ultra vires the constitution - power under section 20 controlled and limited by dictates of general public interest - limitation cannot be transgressed by magistrate ( power conferred to be exercised judicially -.....kumarayya, j. 1. this revision petition, which is on reference before us, raises a short point as to the constitutional validity of section 20 of the suppression of immoral traffic in women and girls act, 1956.2. the revision petitioner took a house on rent from the respondent in guntur municipal area. she is said to have taken to a life of prostitute there and to have been since running a brothel in that house. this became a source of nuisance to the respondent and a menace to the healthy, moral atmosphere of the general public of the locality. on a petition filed by the respondent, the additional munsif-magistrate, guntur started proceedings under section 20 of the suppression of immoral traffic in women and girls act. 1956 (hereinafter referred to as the act). after due enquiry into.....
Judgment:

Kumarayya, J.

1. This revision petition, which is on reference before us, raises a short point as to the constitutional validity of Section 20 of the Suppression of Immoral Traffic in Women and Girls Act, 1956.

2. The revision petitioner took a house on rent from the respondent in Guntur Municipal area. She is said to have taken to a life of prostitute there and to have been since running a brothel in that house. This became a source of nuisance to the respondent and a menace to the healthy, moral atmosphere of the general public of the locality. On a petition filed by the respondent, the Additional Munsif-Magistrate, Guntur started proceedings under Section 20 of the Suppression of Immoral Traffic in Women and Girls Act. 1956 (hereinafter referred to as the Act). After due enquiry into the truth of the information received and after giving the petitioner herein an opportunity of adducing evidence he reached the conclusion that the petitioner is a prostitute and that it was necessary in the interests of the general public that she should be directed to remove herself from the Guntur area. He accordingly passed an order directing her to remove herself from the disputed portion of the house in Door No. 9-3-1933 Vinapamulavari Street, Railpet, Guntur and from the local limits of Guntur Municipality within 7 days from the date of the order and not to re-enter the premises or come again within the Guntur Municipal limits without the written permission of the Court. Aggrieved by this order, the petitioner moved in vain the Sessions Court to make a reference to the High Court. She has now come in revision to this Court. Her petition came up before our learned brother Mohammed Mirza J. who, having regard to the conflict of views between the Allahabad and Punjab High Courts, has referred the matter to this Bench.

3. The contentions raised by the learned counsel for the petitioner, Sri Rama Mohana Rao, are twofold; firstly, that there is no evidence on which the revision petitioner can he held to be a prostitute; secondly, that even assuming that she was a prostitute, Section 20 of the Act cannot be lawfully invoked, as it is hit by Article 19(1), Sub-clauses (d), (e) and (g) of the Constitution. He further contended that at any rate, the order of the lower Court is bad, because it does not bear any reference to either the place where the petitioner should reside, or to duration of time for which the order shall remain in force.

4. The first contention obviously enough is devoid of merits. There is indeed sufficient evidence on record which enabled the Magistrate to come to the definite conclusion that the revision petitioner is a prostitute and that she was running a brothel in the house belonging to the respondent. It consists of sworn testimony of P. Ws. 1, 2 and 3. It is however contended that it is not conclusive, being the evidence of indirect nature. We cannot accept this contention. Matters like these need not necessarily be proved by direct evidence, i.e., by the testimony of persons who had direct dealings with the woman. It is however necessary that the evidence adduced should be of a clear and convincing nature. P. W. 1 has stated clearly that the petitioner herein is carrying on trade on prostitution in a portion of his house; that there is no male member living in that house with her and that persons visit her and they are her customers. P. W. 2 says

'I have very often seen the respondent '(i.e. the revision petitioner)' and other girls bargaining with them the rates for the night prostitution.'.

P. W. 3 says :

'I see the respondent every evening soliciting men for prostitution. Men come to her portion and call her by her name and ask her how much she wants for a night sleep with her or other girls in the house. In fact they settle the rate in public street. Some decent men go into the house and talk to the respondent inside. All types of men come there.'

It is not easy to see how this evidence which is clear and categorical does not positively establish a case against the petitioner that she is living in prostitution. The Court below, was, therefore, right in holding that the petitioner was a prostitute, was running a brothel and was polluting the moral atmosphere of the locality, warranting an action under Section 20 of the Act requiring her to remove herself from the place.

5. But it is contended that Section 20 itself suffers from constitutional inhibition in that it contravenes the provisions of Article 19(1) (d), (e) and (g) of the Constitution of India. In order to appreciate, this argument, it would be necessary to consider the scheme and object of this Act.

6. This Act was passed in the year 1356, long after the advent of the Constitution of India, with the avowed object of suppressing immoral traffic in women and girls. This legislation had become necessary also because Article 23 of the Constitution of India in terms prohibits traffic in human beings and regards. It as an offence punishable in law and Article 35 of the Constitution clearly lays down that notwithstanding anything in the Constitution, Parliament shall have and the Legislature of a State shall not have, power to make laws for prescribing punishment for those acts which are declared to be offence under Part III, and that the Parliament as soon as may be after the commencement of the Constitution shall make laws for prescribing punishment for those acts. The Statement of Objects and Reasons published in the Gazette of India, dated 20-12-1954, Part II Section 2, Extraordinary, page 759 and also the report of the Select Committee published in the Gazette of India, dated 21-11-1956, Part II-Section 2, Extra-ordinary, page 885/3, also give an idea of the reasons which led to the passing of this enactment,

A perusal of the various sections of the Act would show that apart from suppression of immoral traffic in women and girls, they have for their objectc prevention of prostitution from becoming a danger to social decencies, by reducing the opportunities for, such women of contacting the members of the public and also helping the women who have already taken to that life to rehabilitate themselves by dissociating, them from the previous environments. Whereas Sections 3, 4, and 5 to 7 of the Act prescribe punishment for keeping a brothel or allowing premises to be used as a brothel or living on the earnings of prostitution, etc., Sections 5, 6 and 11 are designed to reduce the opportunities to contact the members of the public and Sections 7 and 8 besides minimising such opportunities aim at preventing prostitution from becoming a source of danger to social decencies. Sections 17 and 18 provide for the closure of brothels and eviction of offenders from the premises, if they happen to be within 200 yards of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be noted by the Commissioner of Police or District Magistrate in the manner prescribed. Sections 10, 19 and 21 ate calculated to help the women in reforming themselves by removing them from the old environments, Sections 13, 14, 15, 16 and 17 provide for investigation and Section 22 for trial. Of course prostitution by itself has not been made an offence punishable in law. As already noticed, there are however provisions providing punishment for keeping a brothel or allowing a premises to be used as a brothel or for living on the earnings of prostitution and also for contravening certain provisions including an order under Section 20.

7. Thus it would be seen from the scheme of the Act that though the main purpose for enacting this law by the Parliament was to suppress traffic in women and girls to carry out the purposes of Articles 23 read with 35 of the Constitution and to prohibit exploitation of a prostitute, Parliament made provision for meeting all the evil consequences flowing from them. We are now concerned with Section 20 of the Act, for it is said that it is not consistent with the guarantee enshrined in Article 19(1) of the Constitution as it confers unfettered discretion on the Magistrate, Section 20 reads thus:--

'(1) A Magistrate on receiving information that any woman or girl residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, may record the substance of the information received and issue a notice to such woman or girl requiring her to appear before the Magistrate and show cause why she should not be required to remove herself from the place and be prohibited from re-entering it.

(2) Every notice issued under Sub-section (1) shall be accompanied by a copy of the record aforesaid, and the copy shall be served along with the notice on the woman or girl against whom the notice is issued.

(3) The Magistrate, shall, after the service of the notice referred to in Sub-section (2), proceed to inquire into the truth of the information received, and after giving the woman or girl an opportunity of adducing evidence, take such further evidence as he thinks fit, and if upon such inquiry it appears to him that such woman or girl is a prostitute and that it is necessary in the interests of the general public that such woman or girl should be required to remove herself therefrom and be prohibited from re-entering the same, the Magistrate shall, by order in writing communicated to the woman or girl in the manner specified therein, require her after a date (to be specified in the order) which shall not be less than seven days from the date of the order, to remove herself from the place to such place whether within or without the local limits of his jurisdiction, by such route or routes and within such time as may be specified in the order and also prohibit her from re-entering the place without the permission in writing of the Magistrate having jurisdiction over such place.

(4) Whoever-

(a) fails to comply with an order issued under this section, within the period specified therein, or whilst an order prohibiting her from re-entering the place without such permission, or

(b) knowing that any woman or girl has, under this section, been required to remove herself from the place and has not obtained the requisite permission to re-enter it, harbours or conceals such woman or girl in the place, shall he punishable with fine which may extend to hundred rupees and in the case of a continuing offence with an additional fine which may extend to twenty rupees for every day after the first during which she or he has persisted in the offence.'

It may be seen that the Magistrate has jurisdiction to start proceedings under this section on receiving the requisite information. This information must be to the effect that the woman residing or frequenting the local limits of his jurisdiction is a prostitute. It may come from any quarter or in any form. But he has to conform fully with the procedure laid down; he has to keep a record of the substance of information and give notice to the woman concerned calling upon her to show cause why she should not be required to remove herself from the place and be prohibited from re-entering it. Such notice shall be accompanied by a copy of the record. The person concerned thus would have the notice of the case she has to meet. Then the inquiry would start into the truth of the information and the woman or girl concerned would be given full opportunity to adduce her evidence. It is open to the Magistrate to take further evidence as he deems fit. It is implicit in the term 'evidence' that the party affected has a right of cross-examination. After such a detailed inquiry, the Magistrate has to come to the conclusion that the woman or girl is a prostitute and that it is necessary in the interests of the general public to require her to remove herself from the area and not to re-enter for a certain period. It is then that he can pass the order accordingly. It is plain that the process followed is a judicial process and the authority making the order is a judicial body. It has all the safeguards of a judicial trial. Of course wide powers are given to the Magistrate to direct removal to a place whether within or without the local limits of his jurisdiction as the interests of the general public would warrant. It is contended on this basis that the expression 'the interests of the general public' is too vague, elastic and illusory and as the legislature has not laid down any standard for, or prescribed the limits having regard to various circumstances, on the exercise of this discretion, conferment of such powers is inconsistent with the safeguards guaranteed under Article 19(1) of the Constitution.

8. It is difficult to see how the discretion, however wide, controlled by the dictates of the interests of the general public conferred on a judicial authority which is subject to the revisional jurisdiction of the High Court, can be construed to violate the inhibition of Article 19(1) of the Constitution. After all, the constitutional guarantee under Article 19 is not unqualified. It has been subjected by the very Article to certain limitations. Obviously enough, Sub-clauses (d), (e) and (f) of Article 19(1) on which reliance is placed are controlled by Sub-section (5), which runs thus :

'Nothing in Sub-clauses (d), (e), (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interest of the general public or for the protection of the interests of any Scheduled Tribe.'

Similarly Article 19(1)(g) is controlled by Sub-section (6) reads as follows : --

'Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular ......'

Thus the right to move freely throughout the territory of India, or to reside and settle in any part of the territory of India or to practice any profession, or to carry on any occupation, trade or business as vouchsafed by the Constitution though a fundamental right, is not absolute and is circumscribed by certain limitations. Sub-section (5) leaves unaffected the operation of any existing law in so far as it imposes or prevents the State from making any law imposing reasonable restrictions ton the exercise of any of the rights conferred under Sub-clauses (d), (e) and (f) of Article 19, in the interests of the general public, and Sub-section (6) similarly protects the operation of any existing law or the power of the State from making any law, in the interests of the general public, imposing reasonable restrictions on the exercise of that right. The question is whether the impugned Section 20 of the Act is within the limits of this permissible legislation. It would be so if it only lays restrictions on the exercise of right conferred under Article 19 in the interests of the general public or for protection of interests of any Scheduled Tribe and these restrictions are reasonable, i, e., hear reasonable relation -to the purpose to be achieved and are not arbitrary or of an excessive nature so as to go beyond what is required in the interests of the public. As already noticed, under the said section a prostitute can be directed to remove herself from a part of the territory in India and be prohibited from re-entering the same till such order is revoked. The necessary consequence of her removal of course is that she is prevented from practising prostitution in that area. This incidence also was alleged to constitute a violation of her fundamental right. But at the time of arguments, learned counsel for the petitioner conceded that he cannot successfully canvass this point in view of the trend of decisions and the pronouncements of the Supreme Court in R.M.D. Chamarhaugwalla v. Union of India, (8) : [1957]1SCR930 and State of Bombay v. R.M.D. Chamarbaugwala, (8) : [1957]1SCR874 . In view of this concession, we do not propose to go into this question.

9. The only point to be examined then is whether the rights of the petitioner, vouchsafed under Sub-clauses (d), (e) and (g) of Article 19(1) are abridged on account of this legislation. As already noticed, Sub-section (5) permits imposition of reasonable restrictions on the exercise of this right. We may at this stage recall the observations of the Supreme Court in N.B. Khare v. State of Delhi, : [1950]1SCR519 .

'in deciding whether the restrictions, on the exercise of the right are reasonable the Court has to decide not only on the extent and nature of the restrictions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable .......

The law providing reasonable restrictions on the exercise of the right conferred by Article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to he considered with regard to the exercise of the right it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law.'

Almost to similar effect were the observations in Gurhachan Singh v. State of Bombay, : 1952CriLJ1147 , which runs thus :

'It is perfectly true that the determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated in Article 19(1)(d) of the Constitution are reasonable or not within the meaning of Clause 5 of the Article would depend as much upon the procedural part of the law as upon its substantive part and the Court has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed.'

Thus the restrictions are to be judged not only having regard to their nature and extent but also the conditions under which they are imposed. In this regard substantive as well as procedural provisions come up for scrutiny.

10. We now proceed to consider whether Section 20 imposing as it does restrictions on the exercise of the right vouchsafed by the Constitution satisfies the test of reasonableness to be within the pale of permissible legislation. That section obviously enough is designed to protect the public from the harmful effects of prostitution. In fact it is calculated to serve twofold purpose in that it also allows ample scope for the prostitute to reform herself by removing herself from the uncongenial atmosphere. Wide though the power vested in the Magistrate under this section may seem to be, its exercise is regulated by the limitations imposed by the object of the provision, viz., interests of the general public. In matters of such nature it is rather difficult for the Parliament or Legislature to visualise all the circumstances and make express provision for each case in the enactment. A good deal of course has to be of necessity left to the discretion of the Magistrate to carry out the purpose of the Act as best as it could be. That is the reason why discretion of such amplitude has been allowed to the Magistrate and this discretion, it may be remembered, is not vested in any administrative or executive authority but in a judicial body. It is said that a check on arbitrary exercise of discretion could he provided for by specifying in the Act the maximum period for which and the distance to which the woman should remove herself. Of course Section 20 does not make any provision limiting the duration of time. But that is because it is rather difficult for even the Magistrate to devine at the time of making the order how long it will take for the woman to be rid of such tendencies as are likely to pollute the atmosphere. The provision in such circumstances does not become a bad piece of legislation. It is significant that the Magistrate has to revoke the order as and when he feels that her presence is no longer a threat to public interests. That is sufficient guarantee for the fact that the restrictions on her right will not extend to an unreasonable period (i.e.) to a period beyond what is necessary in the interests of the public. The same may be said as to the place where she should depart. The section as enacted does not give any scope for arbitrariness in making or revoking the order. Before any order prejudicial to a woman is made, a detailed procedure has to be followed. The procedure prescribed affords full opportunity to the woman to make her representation and to effectively meet the case against her. The Magistrate has to be satisfied that the woman is a prostitute and her removal from the place is necessary in the public interest. The satisfaction required is objective and should rest on evidence that bears scrutiny. The inquiry under that section is judicial and is entrusted to a judicial body. Under these circumstances, it is difficult to hold that section 20 in any manner abridges the rights conferred under Article 19(1) (d), (e) and (g) as controlled by Clause (5) of the same Article.

10A. It is argued that since a Magistrate can conclusively determine and effectively abridge the fundamental right of movement and residence in a particular part of the country, such delegation or entrustment of power is bad in law. It is difficult to subscribe to this proposition. When power is vested in a judicial body it cannot be assumed that its exercise would depend on the whims and idiosyncracies of a particular person. A judicial decision must of necessity depend on the facts and circumstances of each case and shall be governed by the justice of the case. In Budhan Chowdhry v. State of Bihar, (8) : 1955CriLJ374 where the constitutionality of section 30 of the Criminal Procedure Code was challenged as being discriminatory, the Supreme Court observed that the ultimate decision as to whether a person charged under section 38, I. P. C. should be tried by the Court of Session or by a section 30 Magistrate does not depend merely on the whim or idiosyncracies of the police or the executive Government but depends ultimately on the proper exercise of judicial discretion by the Magistrate concerned. On that ground the question of discrimination was negatived. The discretion of a judicial officer is not exercised arbitrarily but only judicially, and when there is provision for revision also, that is a complete safe-guard against any arbitrary exercise of discretion.

That apart, the mere fact that under a provision the power has been delegated to a particular officer who may exercise arbitrarily cannot be a guide or true basis for concluding that the section offends the provisions of Article 19(1). That was also what has been observed in M R 1050 SC 211 (supra) by Kania, C.J. In Babulal Parate v. State of Maharashtra, : 1961CriLJ16 , where the constitutionality of section 144, Cr. P. C. was questioned, their Lordships observed thus ;

'The decision of the Magistrate in such a proceeding would undoubtedly be a judicial one inasmuch as it will have been arrived at alter hearing the party affected by the order. Since the proceedings before the Magistrate would be a judicial one, he will have to set aside the order unless he comes to the conclusion that the grounds on which it rests are in law sufficient to warrant it. Further, since the propriety of the order is open to challenge it cannot be said that by reason of the wide amplitude of the power which Section 144 confers on certain Magistrates it places unreasonable restrictions on certain fundamental rights.'

Thus it would appear from the authorities referred above, that the mere fact that a wide discretion has been allowed to a Magistrate would not by itself make, the provision inconsistent with the rights conferred under Article 19(1) of the Constitution.

11. The constitutionality of Section 20 seems to have been judicially noticed by some of the High Courts in India. The learned counsel for the parties have referred to these decisions. The learned counsel for the petitioner placed his reliance mainly on certain observations which are obiter dicta in Shama Bai v. State of U. P., : AIR1959All57 . He has of course referred us also to Begum v. State, : AIR1963Bom17 and Kaushailiya v. State, : AIR1959All57 is a case decided by a single Judge who spoke of the evils of prostitution in the following manner :

'It cannot be denied that prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community .......'

12. Therefore, while considering the reasonableness of the restrictions imposed on the trade or profession of a prostitute by this Act we have to keep in mind that prostitution is a slur on human dignity and a shame to human civilization,

'Its eradication by gradual and evolutionary process is ultimate aim of all civilized nations. So long as it is not possible to completely abolish it, it has got to be tolerated as an evil necessity, but it is only reasonable that restrictions should be imposed to mitigate so far as possible the evil effects of the trade or profession and to protect the interests of the general public.'

As already observed, the learned counsel relies on the following observations of the learned Judge, which are obiter dicta in nature. The learned judge, observed thus :

'It is true that in Section 20 of the Act it is providedthat a Magistrate may pass an order removing a prostitute from a place within his jurisdiction only if heconsiders that it is necessary to do so in the interestsof the general public. Prima facie, again, it appearsthat the expression 'necessary in the interests of thegeneral public' is 'too vague, uncertain and elusivea criterion to form a rational basis for the discrimination made'.'

Having expressed himself thus the learned Judge observed that he was not giving any final opinion onthis point, because he did not hear the other side and that it was only proper that before a provision of a Central Act is held unconstitutional notice must go not only to the respondents but also to the Attorney General of India. In such circumstances reliance on the observations which the learned counsel for the petitioner considers are favourable to him is of no avail.

13. Then there is the case of A I R 1983 All 71 (supra). Therein it was argued that section 20 takes away or abridges the fundamental rights conferred by Sub-clauses (d) and (e) as well as infringes Article 14. The learned Judge did not accept the contention that the provision violates Article 19(1)(g) of the Constitution, on the ground that no one can claim any fundamental right to carry on such an activity as though it was an ordinary profession or trade. But he observed at the same time that the encroachment made by Section 20 on the free movement of an individual far outweighs the benefits that may likely to occur to the public at large and therefore cannot be deemed to be reasonable, that no principles have been prescribed for the guidance of the Magistrate and that the circumstances under which action can be taken is left entirely to the subjective satisfaction of the Magistrate. He was further of the view that uncontrolled power has been delegated to the Executive and that unfettered and unguided power to a subordinate Magistrate also amounts to an infringement of the right to equality before the law guaranteed by Article 14 as there is nothing in the Act to guide the Magistrate in the exercise of his discretion when deciding the cases of individual prostitute. With respect, we beg to differ. The discretion exercised by a Magistrate in a State where there is separation of the judiciary from the executive cannot be deemed to be the exercise of discretion by an executive authority. When there is a definite procedure prescribed, the rules of natural justice far from being ignored or in any wise violated have to be followed strictly, the person concerned is put on notice of the circumstances against her and has ample opportunity to meet the case and the procedure for the conduct of the proceedings in judicial manner has been clearly laid down in Section 20, we do not think that exception can be taken to this process, as being unconstitutional or violative of any principle of natural justice. It is not necessary nor is it possible or even expedient to lay down a satisfactory standard or hard and fast rules that may govern all the circumstances which are difficult to be visualised. It is difficult to say that the power is uncontrolled either. It is controlled and limited by the dictates of the interest of the general public. The term 'interests of the general public' though said to be elastic, has got its own natural limitations, and those limitations cannot be transgressed by the Magistrate. The power thus limited is in no sense untrammelled. Further the order passed is subject to the revisionary jurisdiction of the High Court. We do not, therefore, agree with the view expressed by the learned Judge who decided the above case.

We may in this connection refer to the decision of a Division Bench of the Allahabad High Court in Sona Rai v. Municipality of Agra, : AIR1956All736 . There the Municipal Board of Agra was enforcing a bye-law which it made in 1948 and under which the Municipal Board could direct that a public prostitute may not reside within a specified areas of the city of Agra. Under that bye-law, the mohallas where the public prostitutes were not to reside were specified and then it was provided that no person shall let or otherwise dispose of any house or building to public prostitute or for a brothel within the area or in the streets so specified. The bye-law further provided for a penalty of Rs. 50 for its breach. The executive Officer issued a notice to the prostitutes to remove themselves from the locality which fell within the purview of the bye-law. It was contended in the High Court that the bye-law was ultra vires on the ground that it imposed an unreasonable restriction on the fundamental right which is guaranteed under Article 19(1)(g) and also that the bye-law does not provide for any opportunity being given to the aggrieved person to lead evidence before the Magistrate. The learned Judges did not however go into the larger question whether a prostitute should be prohibited from carrying on her trade. However, so far as the question before them was concerned being a limited one, they observed that they have no hesitation in holding that the restriction on carrying on trade of public prostitution within a specified area of the Municipality is eminently a reasonable one.

This decision was followed by the Punjab High Court in Malerkotla Municipality v. Mohd. Mushtaq, AIR 1960 Punj 18. There it was observed that a restriction carrying on trade of public prostitution within a specified area of the Municipality is eminently a reasonable one, being in the interests of the health and morals of the persons living in that locality, that a Municipal Board has power to impose such restriction, that such restriction is within the ambit of Article 19 of the Constitution and that it is of a restrictive nature and does not amount to an unreasonable exercise of the powers of the legislature.

Kamla China v. State, AIR 1963 Pun 36 is again a case where it was held that Section 20 of the Act is hit neither by Article 14 nor Article 19 of the Constitution. The learned Judge there observed that the Magistrates have not been given any unrestricted powers under Section 20, for in each case it is the duty of the Magistrate to examine the evidence and has come to the conclusion that the removal or externment of a particular prostitute from a particular locality was in the interests of general public. The expression 'necessary in the interest of the general public' could not, therefore, be held 'vague, uncertain and elusive.' While holding so, he referred to the observations made by Sahai, J., in : AIR1959All57 (supra) and differed from his conclusions. He further observed that the classification enjoined as per Section 20 is neither arbitrary nor unreasonable, for that has to be determined on two-fold considerations, firstly, that the woman or the girl has been found to be a prostitute and secondly, that it was in the interest of the general public to direct her removal from the locality in question. In support of this view, the learned Judge relied on the case : 1952CriLJ1147 (supra) which was a case under Section 27 (1) of the City of Bombay Police Act, wherein the Supreme Court repelled the plea that that provision is hit by Article 14 of the Constitution of India. The provisions of Section 20 of the Act are almost in similar terms, with an additional safeguard viz., that it is a judicial decision of the Magistrate and not the executive decision of a Commissioner of Police, and has to be given on evidence. We respectfully agree with the view expressed by the learned Judge of the Punjab High Court. Section 20 is not hit by any constitutional inhibition under Article 19.

14. The Bombay High Court too in Bapurao Dhondiba v. The State, (s) : AIR1956Bom300 has taken somewhat a similar view. There the question arose under Section 37 (3) of the Bombay Police Act. The constitutionality of the provision was questioned on the ground that the restrictions imposed under that section are excessive that as per the terms of the section any assembly or any procession can be prohibited and that there is no indication given by the Legislature as to the type of the assembly or of the procession which should be prohibited under that sub-section. It was observed at page 303 thus :

'It was impossible for the Legislature to indicate the exact nature of the assembly or the procession which should come within the ambit of Section 37(3). Again, the only test which the Legislature could lay down and which the Legislature has laid down is that only that assembly or that procession should be prohibited where the prohibition was necessary for the preservation of the public order.

It is difficult to see how, apart from laying down this test, the Legislature could have given any more details in indicating the nature of the assembly or the procession.'

The learned Judges finally came to the conclusion that Sub-section (3) was a reasonable restriction imposed by the Legislature in the interests of public order, upon the freedom guaranteed under Article 19(1)(b) and (d) and that that provision of law cannot be said to contravene the provisions of the Constitution so as to render it void. This case of course does not relate to the Act with which we are concerned. But however it shows the considered opinion of that High Court with regard to the constitutionality of law under which discretion was allowed to an authority having regard to the nature and circumstances of the subject matter involved.

: AIR1963Bom17 (supra) is a case directly on the point. There it was held that Section 30 of the Act does not offend Article 14 of the Constitution, that the discretion given to the Magistrate under the section is not unguided and undefined; that the words 'in the interest of general public' appearing in Sub-section (3) of the section are intended to have application in the circumstances similar to those created by Sections 7, 8 and 18 of the Act and it is only when it is found that a prostitute is carrying on her trade in such a place and in such a manner as to affect the morals of young and unwary who have frequently to use the locality where she carries on her activities or hurts the susceptibilities of a large number of even grown-up persons having occasion to be in the locality that it can be said that is necessary 'in the interests of the general public' that such woman or girl should be required to remove herself therefrom; that in view of the limited meaning of the words 'in the interests of general public' it cannot be said that the discretion is arbitrary and looking to the object to be achieved the section does not make excessive invasion on the rights of a prostitute to move freely and reside wherever she likes. In the opinion of the learned Judges, the expression 'reasonable' is an objective expression. With these observations of the learned Judges we respectfully agree. But the learned Judges have also observed that if the object of the Act was only to suppress immoral traffic, then the power given to a Magistrate to remove a prostitute from his jurisdiction to any other jurisdiction would apparently appear to be unjustified because no possible relationship can be found between the purpose to be achieved and the remedy provided by this section. In this view, the learned Judges came to the conclusion that the expression 'without the jurisdiction' used in that section goes beyond the purpose of the Act and to that extent it should be struck down. Having held so, it was observed that the bad portion of the section can be separated without impairing the provisions of the section and the remaining portion can stand in law. With due deference to the learned Judges, we beg to differ from this view. The territorial jurisdiction of the Magistrate differs from place to place. The very next village adjoining the place from where the prostitute is removed may be a place out of the jurisdiction of the Magistrate. It cannot, therefore, be said that removal of a person from that village to another village would go beyond the purpose of the Act. In fact it may be deemed to subserve the interests and the purposes of the Act, itself. That is the reason why both the expressions 'within the jurisdiction' and 'without the jurisdiction' have been used. This expression does neither go beyond the purpose of the Act nor the necessities of the case that may come before the Court in this behalf.

15. Thus, on a consideration of the argument of the learned counsel and the above authorities, it seems to us plain that wide though the powers conferred upon the Magistrate may appear to be under Section 20 of the Act, it would be wrong to regard that power as untrammelled or unlimited. Bounded as it is by the limitations and dictates of interest of the general public, such power is necessary to advance the purpose of the Act. The objects and the scheme of the Act require it. The power so conferred has to be exercised by a judicial authority. Though no provision for appeal has been provided, it cannot on that account be an arbitrary exercise of the power, as the discretion has to be exercised judicially and this exercise is always subject to revisionary jurisdiction of the High Court. In these circumstances Section 20 cannot be deemed to be an invalid piece of legislation. In this view of the matter, the order of the Magistrate cannot be deemed to be unconstitutional, either because Section 20 violates the fundamental rights recognised by Article 19 or on the ground that it is vague and places unreasonable restriction on these fundamental rights.

16. The last argument advanced is that the order of the learned Magistrate is bad in law as it does not specify any place where the petitioner should reside; nor the route or routes which she should take on her removal from the place concerned. We do not think that this argument has any substance. It is open to her to live in any place except the prohibited area. The petitioner is not a native of Guntur. She was neither born nor married there. She had come to that place very recently and the house in which she was living is the house belonging to the 1st respondent, whose tenant she is. Her native place, Vadlamanu, is somewhere near Guntur. It is in Guntur taluk. The order does not prevent her from going and residing in Vadlamanu. In fact she is at liberty to reside in any place of her choice outside the Guntur municipal area. Under the order passed, she could as well re-enter the Guntur municipal limits, but of course with the written permission of the Court. There is nothing wrong or improper, irregular, unconstitutional or unlawful in that order passed which may warrant our interference in exercise of revisionary jurisdiction.

17. The revision petition is, therefore, dismissed. The order of the lower Court is upheld. The revision-petitioner should remove herself from house in Door No. 9-3-33, Vinapaniulavari street, Railpet, Guntur and leave the local limits of Guntur Municipality within 7 days from the date of this order. The office is directed to intimate the lower Court immediately.


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