{"id":166095,"date":"1963-10-01T00:00:00","date_gmt":"1963-09-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-uttar-pradesh-vs-kaushaliya-and-others-on-1-october-1963"},"modified":"2016-06-18T10:34:24","modified_gmt":"2016-06-18T05:04:24","slug":"the-state-of-uttar-pradesh-vs-kaushaliya-and-others-on-1-october-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-uttar-pradesh-vs-kaushaliya-and-others-on-1-october-1963","title":{"rendered":"The State Of Uttar Pradesh vs Kaushaliya And Others on 1 October, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The State Of Uttar Pradesh vs Kaushaliya And Others on 1 October, 1963<\/div>\n
Equivalent citations: 1964 AIR 416, \t\t 1964 SCR (4)1002<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Gajendragadkar, P.B., Subbarao, K., Wanchoo, K.N., Shah, J.C., Dayal, Raghubar<\/div>\n
           PETITIONER:\nTHE STATE OF UTTAR PRADESH\n\n\tVs.\n\nRESPONDENT:\nKAUSHALIYA AND OTHERS\n\nDATE OF JUDGMENT:\n01\/10\/1963\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\nSHAH, J.C.\nDAYAL, RAGHUBAR\n\nCITATION:\n 1964 AIR  416\t\t  1964 SCR  (4)1002\n CITATOR INFO :\n F\t    1978 SC 771\t (22)\n\n\nACT:\nSuppression of Immoral Traffic in Women and Girls Act,\t1956\n(104 of 1956), s. 20-\"On receiving information\", meaning of-\nWhether information could be from any source.\nConstitution  of  India,  Art.\t14-Whether  Suppression\t  of\nImmoral\t Traffic in Women Act, 1956, s. 20 gives  Magistrate\nuncandlised  power-Article  19-Whether s.  20  a  reasonable\nrestriction.\n\n\n\nHEADNOTE:\nThe  respondents  in the above 6 appeals are alleged  to  be\nprostitutes carrying on their trade in Kanpur.\tOn receiving\ninformation  from the Sub-Inspector of Police who is  not  a\nSpecial\t Police Officer, the City Magistrate issued  notices\nto  the\t respondents under s. 20(1) of\tthe  Suppression  of\nImmoral\t Traffic in Women and Girls Act, 1956 to show  cause\nwhy  they should not be required to remove  themselves\tfrom\nthe  place where they were residing.  The respondents  filed\ntheir  objections  claiming that the  proceedings  were\t not\nlegally\t  maintainable.\t   The\t Magistrate   repelled\t the\nobjections.  Their revision petitions were dismissed by\t the\nAdditional Sessions Judge.  The High Court allowed their re-\nvision on the ground that s. 20 of the Act offended Arts. 14\nand  19(1)(d)(e)  of the Constitution of India.\t  The  State\nappealed  to this Court on certificates granted by the\tHigh\nCourt.\nBefore this Court it was contended that the information\t re-\nceived by the Magistrate must be information received from a\nspecial\t police officer designated under s. 13 of  the\tAct.\nThe  next  Contention was that in as much under\t s.  20\t the\nMagistrate acted in his executive capacity, his powers\twere\nuncanalized,   he  is  conferred  with\tpower\tcapable\t  of\ndiscriminating\tbetween\t prostitute and\t prostitute  and  he\ncould  interfere on flimsy grounds in the lives\t of  respec-\ntable  woman and that the section offended against Art.\t 14.\nIt was further contended that s. 20 imposed an\tunreasonable\nrestriction   on   girls  and  women  leading  a   life\t  of\nprostitution and hence it violated Art. 19(1)(d) and (c).\nHeld  :\t (i)  If the Legislature  intended  to\tconfine\t the\nexpression  \"information\"  only to that given by  a  special\npolice officer, it would have specifically stated so in\t the\nsection.   The\tomission  is  a\t clear\tindication  that   a\nparticular  source  of information is not material  for\t the\napplication of the section.  Giving the rational meaning  to\nthe  expression \"on receiving information\" it is  dear\tthat\ninformation may be from any source.\n(ii)The\t Act  discloses\t a clear policy\t affording  a  real\nguidance  for  the Magistrate to decide\t the  two  questions\nwhich  he  is called upon to adjudicate under s. 20  of\t the\nAct.   He  functions  as a court and decides  the  said\t two\nquestions after giving full opportu-\n1003\nnity  to the alleged prostitute to respresent her  case\t and\nexamine\t her evidence.\tHis decision is subject to  revision\nby the Sessions Court or the High Court as the case may\t be.\nIn  the\t circumstances\tit  is\tnot  possible  to  say\tthat\nuncanalized  power  is\tconferred on the  Magistrate  as  an\nexecutive  authority  to  decide the  fate.  of\t an  alleged\nprostitute in an arbitrary manner.\n(iii)\t  It is well settled that Art. 14 does not  prohibit\nreasonable  classifications for the purpose  of\t legislation\nand a law will not infringe Art. 14 if the classification is\nfounded\t  on  an  intelligible\tdifferentia  and  the\tsaid\ndifferentia  has  rational  relation to\t the  object  to  be\nachieved  by  the said law.  There are pronounced  and\treal\ndifference  between a woman who is a prostitute and one\t who\nis  not\t and  between a prostitute who does  not  demand  in\npublic\tinterest  any  restriction on her  movements  and  a\nprostitute  whose  action  in public  places  call  for\t the\nimposition   of\t restriction  on  her  movement\t  and\teven\ndeportation.   The  difference\tbetween\t these\tclasses\t  of\nprostitutes has a rational relation to the object sought  to\nbe  achieved  by the Act.  Section 20 in  order\t to  prevent\nmoral  decadence in a busy locality, seeks to  restrict\t the\nmovements of the second category of prostitutes or to deport\nsuch  of them as the peculiar methods of their operation  in\nan  area may demand.  Section 20 therefore does\t not  offend\nArt. 14.\nBegum  State, A.I.R. 1963 Bom. 17 and Shama Bat v. State  of\nU. P. A.I.R. 1959 All 57.\n(iv) The  reasonableness of a restriction depends  upon\t the\nvalue of life in a society, the circumstances obtaining at a\nparticular  point of time when the restriction\tis  imposed,\nthe degree land urgency of the evil sought to be  controlled\nand  similar  others.  'The vice of prostitution has  to  be\ncontrolled  and regulated and one of the objects of the\t Act\nis  to control the' growing evil of prostitution  in  public\nplaces.\t  The restrictions placed by s. 20 are certainly  in\nthe interest of the general public and as the imposition  of\nthe  restriction is done through a judicial process  on\t the\nbasis  of a clearly disclosed policy the  said\trestrictions\nare reasonable.\nChintaman Rao v. State of Madhya Pradesh, [1950] S.C.R.\t 759\nand State of Madras v. V. G. Row,<\/a> [1952] S.C.R. 597.\n(v)  Once it is held that the activities of a prostitute  in\na particular area having regard to the conditions  obtaining\ntherein,   are\tso  subversive\tof  public  morals  and\t  so\ndestructive of public health that it is necessary in  public\ninterest  to deport her from that place, them is  no  reason\nwhy the restriction should be held to be unrea sonable.\t The\ndecision of the Bombay High Court in Begum v. State,\t  is\nnot  correct  to the extent it holds  that  the\t restriction\nunder\t  s.   20  encroach  upon  the\t fundamental   right\nguaranteed under Art\t 19(1)(d)   and\t (e).\t Those\t are\nreasonable restrictions imposed\t in 'public. interest and do\nnot  infringe the fundamental rights  under Art. 19(1)(d)  &\n(e) of the Constitution.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION Criminal  Appeals  Nos.  21
\nto 26 of 1962.\n<\/p>\n
1004<\/span><\/p>\n
Appeals from the judgment and order dated November 17, 1961,
\nof  the Allahabad High Court in Criminal Revision nos.\t322,
\n323, 324, 611, 612 and 613 of 1961.\n<\/p>\n
C.   B.\t Agarwala and C. P. Lal, for the appellant  (in\t all
\nthe  appeals).\n<\/p>\n
J.   P.\t Goyal, for the respondents (in Cr.  A.\t Nos.  21-24
\nand 26 of 1962)-\n<\/p>\n
October 1, 1963.  The Judgment of the Court was delivered by
\nSUBBA RAO J.-These six appeals filed by certificates granted
\nby  the\t High  Court of judicature at  Allahabad  raise\t the
\nquestion of the vires of s. 20 of the Suppression of Immoral
\nTraffic\t in  Women  and\t Girls\tAct,  1956  (104  of  1956),
\nhereinafter called the Act.\n<\/p>\n
The  relevant facts may be briefly stated.  The\t respondents
\nare alleged to be prostitutes carrying on their trade in the
\nCity  of  Kanpur.  On receiving information  from  the\tSub-
\nInspector  of Police, who is not a Special  Police  Officer,
\nthe   City  Magistrate,\t Kanpur,  issued  notices   to\t the
\nrespondents under s. 20(1) of the Act to show cause why they
\nshould not be required to remove themselves from the  places
\nwhere they were residing and be prohibited from\t re-entering
\nthem.\tThe  respondents  received  the\t notices  and  filed
\nobjections  claiming that the proceedings were\tnot  legally
\nmaintainable.  The learned City Magistrate repelled the said
\nobjections.   Against  the  orders  of\tthe  Magistrate\t the
\nrespondents  went up in revision to the Additional  Sessions
\nJudge  Kanpur but the same were dismissed.   Thereafter\t the
\nrespondents  preferred\trevisions  to  the  High  Court\t  of
\njudicature at Allahabad and the said High Court allowed\t the
\nrevision  petitions  and set aside the\tproceedings  pending
\nagainst the respondents in the Court of the City Magistrate,
\nKanpur.\t The High Court held that s. 20 of the Act  abridged
\nthe fundamental rights of the respondents under Art. 14\t and
\nsub-cls.  (d)  and (e) of Art. 19(1)  of  the  Constitution.
\nAfter  obtaining certificates for leave to appeal  from\t the
\nHigh  Court, the present appeals have been preferred by\t the
\nState.\n<\/p>\n
As  the argument turns upon the provisions of s. 20  of\t the
\nAct, it will be convenient at the outset to read it :
\nSection\t 20. (1) A Magistrate on receiving information\tthat
\nany woman or girt residing in or frequent-\n<\/p>\n
1005<\/span><\/p>\n
ing any place within the local limits of his jurisdiction is
\na  prostitute, may record the substance of  the\t information
\nreceived and issue a notice to such woman or girl  requiring
\nher  to appear before the Magistrate and show cause why\t she
\nshould not be required to remove herself from the place\t and
\nbe prohibited from re-entering it.\n<\/p>\n
(2)  Every  notice  issued  under subsection  (1)  shall  be
\naccompanied  by a copy of the record aforesaid and the\tcopy
\nshall  be served alongwith the notice on the woman  or\tgirl
\nagainst whom the notice is issued.\n<\/p>\n
(3)  The  Magistrate shall, after the service of the  notice
\nreferred to in sub-section (2), proceed to inquire into\t the
\ntruth  of  the information received, and  after\t giving\t the
\nwoman or girl an opportunity of adducing evidence, take such
\nfurther\t evidence as he thinks fit and if upon such  inquiry
\nit  appears to him that such woman or girl is  a  prostitute
\nand  that  it is necessary in the interests of\tthe  general
\npublic that such woman or girl should be required to  remove
\nherself\t therefrom  and be prohibited from  re-entering\t the
\nsame, the Magistrate shall, by order in writing communicated
\nto  the\t woman\tor girl in  the\t manner\t specified  therein,
\nrequire\t her  after a date (to be specified  in\t the  order)
\nwhich shall not be less than seven days from the date of the
\norder,\tto  remove  herself from the  place  to\t such  place
\nwhether\t  within   or  without\tthe  local  limits   of\t  Ms
\njurisdiction,  by such route or routes and within such\ttime
\nas may be specified in the order and also prohibit her\tfrom
\nre-entering  the place without the permission in writing  of
\nthe Magistrate having jurisdiction over such place.
\nThe  first  question  raised  is  whether  the\t information
\nreceived  enabling  a Magistrate under s. 20 of the  Act  to
\nmake  the enquiry provided thereunder should be only from  a
\nspecial\t police officer designated under s. 13 of  the\tAct.
\nSection 13 of the Act says that there shall be for each area
\nto  be\tspecified by the State Government in this  behalf  a
\nspecial\t police\t officer appointed by or on behalf  of\tthat
\nGovernment for dealing with offences under this Act in\tthat
\narea.  The post of special
\n1006<\/span>
\npolice\tofficer\t is created under the Act for  dealing\twith
\noffences  under\t the Act, whereas s. 20 does not  deal\twith
\noffences.  That apart, the expression used in s. 20, namely,
\non  receiving information” is not expressly or by  necessary
\nimplication  limited to information received from a  special
\npolice officer.\t If the Legislature intended to confine\t the
\nexpression  “information”  only to that given by  a  special
\npolice officer, it would have specifically stated so in\t the
\nsection.   The\tomission  is  a\t clear\tindication  that   a
\nparticular  source  of information is not material  for\t the
\napplication   of  the  section.\t  There\t is   an   essential
\ndistinction  between  an  investigation and  arrest  in\t the
\nmatter\tof offences and information to the Magistrate :\t the
\nformer,\t when  dealing with women,  has\t potentialities\t for
\ngrave  mischief and, therefore, entrusted only\tto  specific
\nofficers, while mere giving of information ‘Would. not\thave
\nsuch  consequences particularly when” as we  would  indicate
\nlater, the information received by the Magistrate would only
\nstart  the machinery of a judicial enquiry.   We  therefore,
\nhold,  giving  the  natural meaning to\tthe  expression\t “on
\nreceiving information”, that’ “information” may be from\t any
\nsource.\n<\/p>\n
The next question is whether s.20 of the Act offends Art. 14
\nof the Constitution.  It is stated that the power  conferred
\non  the Magistrate under s. 20 of the Act is an\t uncanalized
\nand  uncontrolled  one,\t that  he  acts\t thereunder  in\t his
\nexecutive  capacity,  that the said section enables  him  to
\ndiscriminate between prostitute and prostitute in the matter
\nof restricting their movements and deporting them to  places
\noutside\t his jurisdiction, and that it also enables  him  on
\nflimsy and untested evidence to interfere with the lives  of
\nrespectable  women  by holding them to be  prostitutes\tand,
\ntherefore,  it\tviolates  Art.14 of  the  Constitution.\t  So
\nstated,\t the argument appears to be plausible, but a  closer
\nscrutiny of the section and the connected sections not only,
\nreveals\t a  clearcut  policy  but  also\t the  existence\t of,
\neffective  checks  against, arbitrariness. ; Let us  At\t the
\noutset scrutinize the. provisions of the Act.  The  preamble
\nof  the\t Act  shows  that the Act was  made  to\t provide  in
\npursuance  of  the Intentional\tConvention signed,  at)\t New
\nYork  on May 9, 1950, for suppression of immoral traffic  in
\nwomen and girls.  The short title of the Act
\n1007<\/span>
\nsays that the Act may be called “The Suppression of  Immoral
\nTraffic in Women and Girls Act, 1956”.\tThough the  preamble
\nas  well as the short title shows that the Act was  intended
\nto  prevent  immoral traffic in women and girls,  the  other
\nsections  of  the  Act indicate that it\t was  not  the\tonly
\npurpose\t of the Act.  Section 2(b) defines “girl” to mean  a
\nfemale who has not completed the age of twenty-one, s. 2(1),
\n“woman”\t to  mean a female who has completed the age  of  21
\nyears,\ts. 2 (e), “prostitute” to mean a female\t who  offers
\nher  body  for\tpromiscuous  sexual  intercourse  for  lure,
\nwhether in money or in kind, and s. 2(f), “prostitution”  to
\nmean  the act of a female offering her body for\t promiscuous
\nsexual\tintercourse for hire, whether in money or  in  kind.
\nThere  are provisions in the Act for punishing men  who\t run
\nbrothels  and who procure girls and women for  prostitution,
\nfor punishing women and girls who seduce or solicit for\t the
\npurpose\t of Prostitution in public places, for\tplacing\t the
\nrescued\t women\tand  girls in detention\t in  protections  in
\nprotection  home  for closure of brothels  and\teviction  of
\noffenders  from premises, for restricting the  movements  of
\nprostitutes  and even for deporting them to  places  outside
\nthe  Jurisdiction of the Magistrate, Section  7(1)  provides
\nfor  the  punishment  of a prostitute,\tif  she\t carries  on
\nprostitution in any premises Which are within a distance  of
\ntwo hundred yards or any place of public religious  worship,
\neducational institution, hostels, hospitals, nursing home or
\nsuch other public place or any kind notified in that  behalf
\nby  the Commissioner of- Police or the District\t Magistrate,
\nas  the\t casec it may be.  Section 8 prohibits\tseducing  or
\nsoliciting  for purpose of prostitution in any public  place
\nor  within  sight of, and in such manner as to\tbe  seen  or
\nheard  from,  any  public place,  whether  from\t within\t any
\nbuilding  or  house  or not, and makes\tsuch  soliciting  or
\nseducing an offence under the Act.  Section 18 provides\t for
\nthe  closure of brothels and eviction of offenders from\t the
\npremises,  if  such premises are within a  distance  of\t two
\nhundred\t yards from a public place mentioned in s. 7(1)\t and
\nare  used  or  run as a brothel by any\tperson\tor  used  by
\nprostitutes  for  carrying  on their  trade.   The  Act\t was
\nconceived  to  serve  a\t public\t social\t purpose,  viz.,  to
\nsuppress  immoral  traffic  in women and  girls,  to  rescue
\nfallen women and girls and to prevent deterioration in
\n1008<\/span>
\npublic morals.\tThe Act clearly defines a “prostitute”,\t and
\ngives  definite\t indications from which\t places\t prostitutes
\nshould\tbe’  removed or in respect whereof  their  movements
\nshould be restricted.\n<\/p>\n
With this policy in mind, let us now give close look to\t the
\nprovisions of s. 20(1) of the Act.  The following procedural
\nsteps are laid down in s. 20 of the Act: (1) the enquiry  is
\ninitiated  by  a Magistrate on his receiving  the  requisite
\ninformation  that  a woman a girl is a\tprostitute;  (2)  he
\nrecords the substance of the information; (4)\t  he  sends,
\nalong with the notice, a copy of the record; (5)  he   shall
\ngive the woman or girl an opportunity to adduce evidence  on
\ntwo  points,  namely, (i) whether she is a  prostitute,\t and\n<\/p>\n
(ii)  whether  in the interests of the\tgeneral\t public\t she
\nshould\tbe required to remove herself from the\tplace  where
\nshe  is\t residing  or  which she  is  frequenting;  (6)\t the
\nMagistrate  shall give his findings on the  said  questions,
\nand  on the basis thereof, he makes the\t appropriate  order;
\nand (7) the disobedience of the order entails punishment  of
\nfine.\n<\/p>\n
It  is\targued that the enquiry is not in  respect  of\t“of-
\nfences”, though disobedience of an order made thereunder may
\nentail punishment of fine, and, therefore, the order is\t one
\nmade   in  an  administrative  capacity.    The\t  expression
\n“Magistrate” has been defined to mean a District Magistrate,
\na  Sub-Divisional Magistrate, a Presidency Magistrate  or  a
\nMagistrate  of\tthe first class specially empowered  by\t the
\nState  Government, by notification in the Official  Gazette,
\nto exercise jurisdiction under this Act.  The definition
\nshows  that special jurisdiction is conferred upon a  Magis-
\ntrate of comparatively high status who can safely be  relied
\nupon  to discharge the onerous and delicate duties  inherent
\nin  such jurisdiction.\tThe jurisdiction under s. 20 is\t not
\nconferred on such a Magistrate as a persona designata but is
\nto  be\texercised  by him in his capacity  as  a  Magistrate
\nfunctioning  within  the limits of  his\t territorial  juris-
\ndiction.  The procedure prescribed thereunder, which we have
\nanalysed  earlier, approximates, as nearly as  possible,  to
\nthat  of a judicial enquiry.  The enquiry starts  on  infor-
\nmation; notice, along with a copy of the record, is given to
\nthe alleged prostitute; she is given an opportunity to
\n1009<\/span>
\nadduce evidence which necessarily implies a right to have  a
\npublic\tenquiry,  to  engage an Advocate,  to  ask  for\t the
\nexamination  of\t the informant or informants and  to  cross-
\nexamine\t them  and  to adduce her evidence,  both  oral\t and
\ndocumentary.  The Magistrate, on the basis of the  evidence,
\ndecides\t the aforesaid two questions, and makes\t a  suitable
\norder  indicated  in the section.  The\tright  with  respect
\nwhereof\t the jurisdiction is exercised is an important\tone.
\nIt is a fundamental right of personal liberty.\tNo right can
\nbe  more important to a person than the right to select\t his
\nor her home and to move about in the manner he or she likes.
\nEven  depraved\twoman  cannot be deprived of  such  a  right
\nexcept\tfor  good reasons.  When the  Legislature  conferred
\nJurisdiction  on  a  Magistrate to decide  the\tquestion  of
\nimposing restrictions on such a right by following  judicial
\nprocedure,  it\tis  reasonable to  hold\t that  it  conferred
\njurisdiction on him as a court, unless the clear  provisions
\nof the Act compel us to hold otherwise.\t Indeed the analysis
\nof  the section earlier made negatives any intention to\t the
\ncontrary.   The fact that the enquiry does not relate to  an
\n“offence  ”  is\t not decisive of the  question\twhether\t the
\nMagistrate  is\tfunctioning  as a  court.   There  are\tmany
\nproceedings  under the Code of Criminal Procedure,  such  as
\nthose  under  ss. 133, 144, 145 and 488, which do  not\tdeal
\nwith  offences\tbut  still  it is  never  suggested  that  a
\nMagistrate  in\tmaking\tan enquiry  in\trespect\t of  matters
\nthereunder  is\tnot functioning as a court.   We  therefore,
\nhold  that in the circumstances the Magistrate must be\theld
\nto  be acting as a court.  If the Magistrate is acting as  a
\ncourt,\tas  we\thave held he is, it is obvious\tthat  be  is
\nsubject\t to the revisional jurisdiction conferred under\t ss.
\n435  and  439 of the Code of Criminal Procedure.   The\tsaid
\nsections  confer  ample authority on  the  courts  mentioned
\ntherein to set right improper orders passed by a  Magistrate
\nin appropriate cases.  The result of the discussion is\tthat
\nthe Act discloses a clear policy affording a real guide\t for
\nthe  Magistrate\t to  decide the two questions  which  he  is
\ncalled upon to adjudicate under s. 20 of the Act.  He  func-
\ntions  as a court and decides the said two  questions  after
\ngiving full opportunity to the alleged prostitute to  repre-
\nsent  her  case and examine her evidence.  His\tdecision  is
\nsubject to revision by the Sessions Court or the High
\n1010<\/span>
\nCourt, as the case may be.  In the circumstances it is\triot
\npossible  to say that uncanalised power is conferred on\t the
\nMagistrate  as an executive authority to decide the fate  of
\nan alleged prostitute in an arbitrary manner.
\nThe next question is whether the policy so disclosed offends
\nArt. 14 of the Constitution.  It has been well settled\tthat
\nArt. 14 does not prohibit reasonable classification for\t the
\npurpose\t of legislation and that a law would not be held  to
\ninfringe Art. 14 of the Constitution if the.  classification
\nis  founded  on\t an intelligible differentia  and  the\tsaid
\ndifferentia has a rational relation to the object sought  to
\nbe  achieved  by the said law.\tThe  differences  between  a
\nwoman  who  is\ta prostitute and one who  is  not  certainly
\njustify\t their being placed in different classes.   So\ttoo,
\nthere are obvious differences between a prostitute who is  a
\npublic\tnuisance  and  one who is  not.\t  A  prostitute\t who
\ncarries on her trade on the sly or in the unfrequented\tpart
\nof the town or in a town with a sparse population may not be
\nso dangerous to public health or morals as a prostitute\t who
\nlives  in a busy locality or in an overcrowded town or in  a
\nplace  within  the easy reach of  public  institutions\tlike
\nreligious  an  educational institutions.  Though  both\tsell
\ntheir  bodies,\tthe  latter is far more:  dangerous  to\t the
\npublic,\t particularly to the younger generation\t during\t the
\nemotional   stage   of\ttheir  life.\tTheir\tfreedom\t  of
\nuncontrolled  movement\tin  a crowded -locality\t or  in\t the
\nvicinity of public institutions not only helps to demoralise
\nthe  public morals, but, what is worse, to  spread  diseases
\nnot  only  affecting the present generation,  but  also\t the
\nfuture ones.  Such trade in public may also lead to scandals
\nand  unseemly broils.  There are, therefore, pronounced\t and
\nreal differences between a woman who is a prostitute and one
\nwho is not, and between a prostitute, who does not demand in
\npublic\tinterests  any restrictions on her movements  and  a
\nprostitute,  whose  actions in public places  call  for\t the
\nimposition  of\trestrictions  on  her  movements  and\teven
\ndeportation.   The  object of the Act, as has  already\tbeen
\nnoticed is not only to suppress immoral traffic in women and
\ngirls,\tbut  also  to improve  public  morals  by  removing.
\nprostitutes  from  busy public\tplaces in  the\tvicinity  of
\nreligious   and\t educational.,\ttutions.   The\t differences
\nbetween these two- classes of
\n1011<\/span>
\nstitutes have a rational relation to the object sought to be
\nachieved by the Act.  Section 20, in order to prevent  moral
\ndecadence  in  a  busy\tlocality,  seeks  to  restrict\t the
\nmovements  of  the  second category of\tprostitutes  and  to
\ndeport\tsuch  of  them\tas the\tpeculiar  methods  of  their
\noperation in area may demand.\n<\/p>\n
judicial decisions arising under the Act and under analogous
\nActs  were  cited  at  the  Bar.   The\tquestion  whether  a
\nparticular provisions offends Art. 14 of the Constitution or
\nnot  depends  upon the provisions of the  Act  wherein\tthat
\nsection appears.  The decisions oil other Acts do not afford
\nany  guidance to decide the Vires of s. 20 of the  Act.\t  We
\nshall, therefore, briefly notice the decisions which have  a
\ndirect bearing on s. 20 of the Act.\n<\/p>\n
A  Division  Bench  of the Bombay High Court,  in  Begum  v.
\nState(1)   bad to consider the same question now before\t us.
\nIt held that the provisions of s. 20 of the Act would not be
\nbit by Art. 14 of the Constitution, though it held that\t the
\nprovisions of s. 20 of the Act which enable a Magistrate  to
\ndirect\ta prostitute to remove herself from the place  where
\nshe  is residing to a place without the local limits of\t his
\njurisdiction   was  an\tunresonable  restriction  upon\t the
\nfundamental right guaranteed under Art. 19(1)(d) and (e)  of
\nthe Constitution.  We agree with the High Court in so far as
\nit  held  that the section does not offend Art.\t 14  of\t the
\nConstitution, but we cannot accept the view expressed by  it
\nin  respect  of\t Art. 19(1)(d) and (e)\tthereof.   We  shall
\nconsider this aspect at a later stage.\n<\/p>\n
In  Shama  Bai v. State of U. P. (2), Sabai  J.,  though  he
\ndismissed  the\twrit petition without giving notice  to\t the
\nother party, made some observations indicating his view that
\nthe  said  provision  prima facie offends  Art.\t 14  of\t the
\nConstitution.\tFor the reasons already stated by us, we  do
\nnot agree with this view.  We, therefore, hold that s. 20 of
\nthe Act does not infringe Art. 14 of the Constitution.
\nNow coming to Art. 19(1)(d) and (e) of the Constitution, the
\nquestion that arises is whether s. 20 of the Act imposes  an
\nunreasonable  restriction on girls and women leading a\tlife
\nof prostitution.  To state it differently,
\n(1) A.I.R. 1963 Bom. 17.\n<\/p>\n
(2) A.I.R. 1959 All. 57
\n1012<\/span>
\ndoes s. 20 of the Act impose reasonable restrictions on\t the
\nexercise  of the fundamental right of the prostitutes  under
\nArt.  19(1)(d) and (e) of the Constitution in the  interests
\nof  the general public.\t Under Art. 19(1)(d) the  prostitute
\nhas  a fundamental right to move freely throughout the\tter-
\nritory of India; and under sub-cl.(e) thereof to reside\t and
\nsettle\tin any part of the territory of India.\tUnder s.  20
\nof  the Act the Magistrate can compel her to remove  herself
\nfrom place where she is residing or which she is frequenting
\nto  places  within  or\twithout\t the  local  limits  of\t his
\njurisdiction by such route or routes and within such time as
\nmay  be\t specified in the order and prohibit  her  from\t re-
\nentering the place without his permission in writing.\tThis
\nis certainly a restriction on a citizen’s fundamental  right
\nunder Art. 19(1)(d) and (e) of the Constitution.  Whether  a
\nrestriction  is reasonable in the interests or\tthe  general
\npublic cannot be answered on a priori reasoning; it  depends
\nupon  the peculiar circumstances of each case.\tMahajan\t J.,
\nas  he then was, speaking for the Court in Chintaman Rao  v.
\nThe  State  of\tMadhya\tPradesh(1)  succinctly\tdefined\t the
\nexpression “reasonable restrictions” thus :
\n“The-\tphrase\t “reasonable   restriction”   connotes\t the
\nlimitation  imposed  on a person in enjoyment of  the  right
\nshould\tnot be arbitrary or of an excessive  nature,  beyond
\nwhat  is required in the interests of the public.  The\tword
\n“reasonable” implies intelligent care and deliberation, that
\nis, the choice of a course which reason dictates.”
\nA fairly exhaustive test to  ascertain the reasonableness of
\na  provision is given by Patanjali Sastri C.J. in The  State
\nof  Madras  v.\tV. G. Row<\/a>(2).\tTherein\t the  learned  Chief
\njustice observed thus :\n<\/p>\n
“It  is important in this context to bear in mind  that\t the
\ntest  of  reasonableness,  wherever  prescribed)  should  be
\napplied to each individual statute impugned, and no abstract
\nstandard, or general pattern, of reasonableness can be\tlaid
\ndown  as applicable to all cases.  The nature of  the  right
\nalleged\t to have been infringed, the underlying\t purpose  of
\nthe restrictions
\n\t      (1) [1950] S.C.R. 759, 763.\n<\/p>\n
(2) [1952]_ S.C.R. 597, 607.\n<\/p>\n
1013<\/span><\/p>\n
imposed,  the  extent and urgency of the evil sought  to  be
\nremedied  thereby, the disproportion of the imposition,\t the
\nprevailing conditions at the time, should all enter into the
\njudicial verdict.”\n<\/p>\n
If we may say so, with respect, this passage summarized\t the
\nlaw on the subject fully and precisely.\t The  reasonableness
\nof  a  restriction  depends upon the values  of\t life  in  a
\nsociety,  the circumstances obtaining at a particular  point
\nof time when the restriction is imposed, the degree and\t the
\nurgency\t of  the evil sought to be  controlled\tand  similar
\nothers. If   in\t  a  particular\t locality  the\t vice\tof
\nprostitution isendemic degrading\tthose who  live
\nby prostitutionand  demoralising others who  come  into
\ncontact with them, the Legislature may have to impose severe
\nrestrictions  on the right of the prostitute to\t move  about
\nand  to\t live  in a house ‘of her choice.  If  the  evil  is
\nrampant,  it may also be necessary to provide for  deporting
\nthe  worst  of them from the area of their  operation.\t The
\nmagnitude  of  the evil and the urgency of  the\t reform\t may
\nrequire\t such drastic remedies.\t It cannot be gainsaid\tthat
\nthe vice of prostitution is rampant in various parts of\t the
\ncountry.   There cannot be two views on the question of\t its
\ncontrol and regulation.\t One of the objects of the Act is to
\ncontrol\t the growing evil of prostitution in public  places.
\nUnder s. 20 of the Act the freedom of movement and residence
\nare regulated, but, as we have stated earlier, an  effective
\nand  safe  Judicial machinery is provided to carry  out\t the
\nobjects of the Act.  The said restrictions placed upon\tthem
\nare certainly in the interests of the general public and, as
\nthe  imposition\t of  the  restrictions\tis  done  through  a
\njudicial process on the basis of a clearly disclosed policy,
\nthe said restrictions are clearly reasonable.
\nIt is said that the restrictions on prostitutes, though they
\nmay be necessary, are excessive and beyond the\trequirements
\nthe  eradication  of  the evil demands.\t  The  movements  of
\nprostitutes,  the argument proceeds, maybe  controlled,\t but
\nthat  part  of the section which enables the  Magistrate  to
\ndeport them outside his jurisdiction is far in excess of the
\nrequirements.\tIt is suggested that by\t consecutive  orders
\nmade by various Magistrates, the point may be reached when a
\nprostitute may be deported out of India.\n<\/p>\n
1014<\/span><\/p>\n
The second argument borders on fantasy.\t The first  argument
\nalso  has  no force.  If the presence of a prostitute  in  a
\nlocality  within  the  Jurisdiction of a  Magistrate  has  a
\ndemoralising  influence\t on  the public\t of  that  locality,
\nhaving regard to the density of population, the existence of
\nschools,  colleges  and other public  institutions  in\tthat
\nlocality  and  other similar causes, we (lo not see  how  an
\norder  of deportation may not be necessary to curb the\tevil
\nand to improve the public morals.  Once it is held that\t the
\nactivities  of\ta prostitute in a  particular  area,  having
\nregard\t to  the  conditions  obtaining\t therein,   are\t  so
\nsubversive  of public morals anti so destructive  of  Public
\nhealth that it is necessary in public interest to deport her
\nfrom  that  place,  we\tdo  not\t see  any  reason  why\t the
\nrestrictions  should  be held to be  unreasonable.   Whether
\ndeportation  out  of the jurisdiction of the  Magistrate  is
\nnecessary or not depends upon the facts of each case and the
\ndegree of the demoralizing influence a particular prostitute
\nis exercising in a particular locality.\t If in a  particular
\ncase  a\t Magistrate goes out of the way and makes  an  order
\nwhich  is  clearly disproportionate to\tthe  evil  influence
\nexercised  by a particular prostitute, she has a  remedy  by
\nway of revision to an appropriate court.\n<\/p>\n
The  Division  Bench of the Bombay High Court  in  Begum  v.
\nState(1) no doubt held that the portion of s. 20 of the\t Act
\nwhich  enables\tthe  Magistrate to direct  a  prostitute  to
\nremove herself from the place where she is living to a place
\nwithout\t the local limits of his  jurisdiction\tunreasonably
\nencroaches upon the fundamental right guaranteed under\tArt.
\n19(1)(d)  and  (e) of the Constitution\tand  is,  therefore,
\ninvalid.   For the aforesaid reasons, we cannot\t agree\twith
\nthis view.\n<\/p>\n
We, therefore, hold that the provisions of s. 20 of the\t Act
\nare  reasonable\t restrictions  imposed\tin  public  interest
\nwithin\tthe  meaning of s. 19(5) of  the  Constitution\tand,
\ntherefore,  do\tnot infringe the fundamental rights  of\t the
\nrespondents under Art. 19(1)(d) and (e) thereof.
\nIn  the result, the appeals are allowed.  The orders of\t the
\nHigh  Court  are  set  aside and  those\t of  the  Additional
\nSessions  judge are restored.  The City Magistrate will\t now
\nproceed with the enquiry on merits.\n<\/p>\n
Appeals allowed.\n<\/p>\n
(1) A.I.R. 1963 Bom. 17.\n<\/p>\n
India\/64-16-1 -65-2500
\n1<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The State Of Uttar Pradesh vs Kaushaliya And Others on 1 October, 1963 Equivalent citations: 1964 AIR 416, 1964 SCR (4)1002 Author: K Subbarao Bench: Gajendragadkar, P.B., Subbarao, K., Wanchoo, K.N., Shah, J.C., Dayal, Raghubar PETITIONER: THE STATE OF UTTAR PRADESH Vs. RESPONDENT: KAUSHALIYA AND OTHERS DATE OF JUDGMENT: 01\/10\/1963 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-166095","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe State Of Uttar Pradesh vs Kaushaliya And Others on 1 October, 1963 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-of-uttar-pradesh-vs-kaushaliya-and-others-on-1-october-1963\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Uttar Pradesh vs Kaushaliya And Others on 1 October, 1963 - 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