The State of Uttar Pradesh Vs.
Kaushaliya & Ors  INSC 196 (1 October 1963)
01/10/1963 SUBBARAO, K.
CITATION: 1964 AIR 416 1964 SCR (4)1002
CITATOR INFO :
F 1978 SC 771 (22)
Suppression of Immoral Traffic in Women and
Girls Act, 1956 (104 of 1956), s. 20-"On receiving information",
meaning ofWhether information could be from any source.
Constitution of India, Art. 14-Whether
Suppression of Immoral Traffic in Women Act, 1956, s. 20 gives Magistrate
uncandlised power-Article 19-Whether s. 20 a reasonable restriction.
The respondents in the above 6 appeals are
alleged to be prostitutes carrying on their trade in Kanpur. On receiving
information from the Sub-Inspector of Police who is not a Special Police
Officer, the City Magistrate issued notices to the respondents under s. 20(1)
of the Suppression of Immoral Traffic in Women and Girls Act, 1956 to show
cause why they should not be required to remove themselves from the place where
they were residing. The respondents filed their objections claiming that the
proceedings were not legally maintainable. The Magistrate repelled the
objections. Their revision petitions were dismissed by the Additional Sessions
Judge. The High Court allowed their revision on the ground that s. 20 of the
Act offended Arts. 14 and 19(1)(d)(e) of the Constitution of India. The State
appealed to this Court on certificates granted by the High Court.
Before this Court it was contended that the
information received by the Magistrate must be information received from a
special police officer designated under s. 13 of the Act.
The next Contention was that in as much under
s. 20 the Magistrate acted in his executive capacity, his powers were
uncanalized, he is conferred with power capable of discriminating between
prostitute and prostitute and he could interfere on flimsy grounds in the lives
of respectable woman and that the section offended against Art. 14.
It was further contended that s. 20 imposed
an unreasonable restriction on girls and women leading a life of prostitution
and hence it violated Art. 19(1)(d) and (c).
Held : (i) If the Legislature intended to
confine the expression "information" only to that given by a special
police officer, it would have specifically stated so in the section. The
omission is a clear indication that a particular source of information is not
material for the application of the section. Giving the rational meaning to the
expression "on receiving information" it is dear that information may
be from any source.
(ii)The Act discloses a clear policy
affording a real guidance for the Magistrate to decide the two questions which
he is called upon to adjudicate under s. 20 of the Act. He functions as a court
and decides the said two questions after giving full opportunity to the alleged
prostitute to represent her case and examine her evidence. His decision is
subject to revision by the Sessions Court or the High Court as the case may be.
In the circumstances it is not possible to
say that uncanalized power is conferred on the Magistrate as an executive
authority to decide the fate. of an alleged prostitute in an arbitrary manner.
(iii) It is well settled that Art. 14 does
not prohibit reasonable classifications for the purpose of legislation and a
law will not infringe Art. 14 if the classification is founded on an
intelligible differentia and the said differentia has rational relation to the
object to be achieved by the said law. There are pronounced and real difference
between a woman who is a prostitute and one who is not and between a prostitute
who does not demand in public interest any restriction on her movements and a
prostitute whose action in public places call for the imposition of restriction
on her movement and even deportation. The difference between these classes of
prostitutes has a rational relation to the object sought to be achieved by the
Act. Section 20 in order to prevent moral decadence in a busy locality, seeks
to restrict the movements of the second category of prostitutes or to deport
such of them as the peculiar methods of their operation in an area may demand.
Section 20 therefore does not offend Art. 14.
Begum State, A.I.R. 1963 Bom. 17 and Shama
Bat v. State of U. P. A.I.R. 1959 All 57.
(iv) The reasonableness of a restriction
depends upon the value of life in a society, the circumstances obtaining at a
particular point of time when the restriction is imposed, the degree land
urgency of the evil sought to be controlled and similar others. 'The vice of
prostitution has to be controlled and regulated and one of the objects of the
Act is to control the' growing evil of prostitution in public places. The
restrictions placed by s. 20 are certainly in the interest of the general
public and as the imposition of the restriction is done through a judicial
process on the basis of a clearly disclosed policy the said restrictions are
Chintaman Rao v. State of Madhya Pradesh,
 S.C.R. 759 and State of Madras v. V. G. Row,  S.C.R. 597.
(v) Once it is held that the activities of a
prostitute in a particular area having regard to the conditions obtaining
therein, are so subversive of public morals and so destructive of public health
that it is necessary in public interest to deport her from that place, them is
no reason why the restriction should be held to be unrea sonable. The decision
of the Bombay High Court in Begum v. State, is not correct to the extent it
holds that the restriction under s. 20 encroach upon the fundamental right
guaranteed under Art 19(1)(d) and (e). Those are reasonable restrictions
imposed in 'public. interest and do not infringe the fundamental rights under
Art. 19(1)(d) & (e) of the Constitution.
CRIMINAL APPELLATE JURISDICTION Criminal
Appeals Nos. 21 to 26 of 1962.
1004 Appeals from the judgment and order
dated November 17, 1961, of the Allahabad High Court in Criminal Revision nos.
322, 323, 324, 611, 612 and 613 of 1961.
C. B. Agarwala and C. P. Lal, for the
appellant (in all the appeals).
J. P. Goyal, for the respondents (in Cr. A.
Nos. 21-24 and 26 of 1962)October 1, 1963. The Judgment of the Court was
delivered by SUBBA RAO J.-These six appeals filed by certificates granted by
the High Court of judicature at Allahabad raise the question of the vires of s.
20 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (104 of
1956), hereinafter called the Act.
The relevant facts may be briefly stated. The
respondents are alleged to be prostitutes carrying on their trade in the City
of Kanpur. On receiving information from the Sub Inspector of Police, who is
not a Special Police Officer, the City Magistrate, Kanpur, issued notices to
the respondents under s. 20(1) of the Act to show cause why they should not be
required to remove themselves from the places where they were residing and be
prohibited from re-entering them. The respondents received the notices and
filed objections claiming that the proceedings were not legally maintainable.
The learned City Magistrate repelled the said objections. Against the orders of
the Magistrate the respondents went up in revision to the Additional Sessions
Judge Kanpur but the same were dismissed. Thereafter the respondents preferred
revisions to the High Court of judicature at Allahabad and the said High Court
allowed the revision petitions and set aside the proceedings pending against
the respondents in the Court of the City Magistrate, Kanpur. The High Court
held that s. 20 of the Act abridged the fundamental rights of the respondents
under Art. 14 and sub-cls. (d) and (e) of Art. 19(1) of the Constitution.
After obtaining certificates for leave to
appeal from the High Court, the present appeals have been preferred by the
As the argument turns upon the provisions of
s. 20 of the Act, it will be convenient at the outset to read it :
Section 20. (1) A Magistrate on receiving
information that any woman or girt 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
(2) Every notice issued under subsection (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
(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 there from 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 Ms 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.
The first question raised is whether the
information received enabling a Magistrate under s. 20 of the Act to make the
enquiry provided there under should be only from a special police officer
designated under s. 13 of the Act.
Section 13 of the Act says that there shall
be for each area to be specified by the State Government in this behalf a
special police officer appointed by or on behalf of that Government for dealing
with offences under this Act in that area. The post of special 1006 police officer
is created under the Act for dealing with offences under the Act, whereas s. 20
does not deal with offences. That apart, the expression used in s. 20, namely,
on receiving information" is not expressly or by necessary implication
limited to information received from a special police officer. If the
Legislature intended to confine the expression "information" only to
that given by a special police officer, it would have specifically stated so in
the section. The omission is a clear indication that a particular source of
information is not material for the application of the section. There is an
essential distinction between an investigation and arrest in the matter of
offences and information to the Magistrate : the former, when dealing with
women, has potentialities for grave mischief and, therefore, entrusted only to
specific officers, while mere giving of information 'Would. not have such
consequences particularly when" as we would indicate later, the
information received by the Magistrate would only start the machinery of a
judicial enquiry. We therefore, hold, giving the natural meaning to the
expression "on receiving information", that' "information"
may be from any source.
The next question is whether s.20 of the Act
offends Art. 14 of the Constitution. It is stated that the power conferred on
the Magistrate under s. 20 of the Act is an uncanalized and uncontrolled one,
that he acts there under in his executive capacity, that the said section
enables him to discriminate between prostitute and prostitute in the matter of
restricting their movements and deporting them to places outside his
jurisdiction, and that it also enables him on flimsy and untested evidence to
interfere with the lives of respectable women by holding them to be prostitutes
and, therefore, it violates Art.14 of the Constitution. So stated, the argument
appears to be plausible, but a closer scrutiny of the section and the connected
sections not only, reveals a clear cut policy but also the existence of,
effective checks against, arbitrariness. ; Let us At the outset scrutinize the.
provisions of the Act. The preamble of the Act shows that the Act was made to
provide in pursuance of the Intentional Convention signed, at) New York on May
9, 1950, for suppression of immoral traffic in women and girls. The short title
of the Act 1007 says that the Act may be called "The Suppression of
Immoral Traffic in Women and Girls Act, 1956". Though the preamble as well
as the short title shows that the Act was intended to prevent immoral traffic
in women and girls, the other sections of the Act indicate that it was not the
only purpose of the Act. Section 2(b) defines "girl" to mean a female
who has not completed the age of twenty-one, s. 2(1), "woman" to mean
a female who has completed the age of 21 years, s. 2 (e),
"prostitute" to mean a female who offers her body for promiscuous
sexual intercourse for lure, whether in money or in kind, and s. 2(f),
"prostitution" to mean the act of a female offering her body for
promiscuous sexual intercourse for hire, whether in money or in kind.
There are provisions in the Act for punishing
men who run brothels and who procure girls and women for prostitution, for
punishing women and girls who seduce or solicit for the purpose of Prostitution
in public places, for placing the rescued women and girls in detention in
protections in protection home for closure of brothels and eviction of
offenders from premises, for restricting the movements of prostitutes and even
for deporting them to places outside the Jurisdiction of the Magistrate,
Section 7(1) provides for the punishment of a prostitute, if she carries on
prostitution in any premises Which are within a distance of two hundred yards
or any place of public religious worship, educational institution, hostels,
hospitals, nursing home or such other public place or any kind notified in that
behalf by the Commissioner of Police or the District Magistrate, as the cases
it may be. Section 8 prohibits seducing or soliciting for purpose of
prostitution in any public place or within sight of, and in such manner as to
be seen or heard from, any public place, whether from within any building or
house or not, and makes such soliciting or seducing an offence under the Act.
Section 18 provides for the closure of brothels and eviction of offenders from
the premises, if such premises are within a distance of two hundred yards from
a public place mentioned in s. 7(1) and are used or run as a brothel by any
person or used by prostitutes for carrying on their trade. The Act was
conceived to serve a public social purpose, viz., to suppress immoral traffic
in women and girls, to rescue fallen women and girls and to prevent
deterioration in 1008 public morals. The Act clearly defines a
"prostitute", and gives definite indications from which places
prostitutes should be' removed or in respect whereof their movements should be
With this policy in mind, let us now give
close look to the provisions of s. 20(1) of the Act. The following procedural
steps are laid down in s. 20 of the Act: (1) the enquiry is initiated by a
Magistrate on his receiving the requisite information that a woman a girl is a
prostitute; (2) he records the substance of the information; (4) he sends,
along with the notice, a copy of the record; (5) he shall give the woman or
girl an opportunity to adduce evidence on two points, namely, (i) whether she
is a prostitute, and (ii) whether in the interests of the general public she
should be required to remove herself from the place where she is residing or
which she is frequenting; (6) the Magistrate shall give his findings on the
said questions, and on the basis thereof, he makes the appropriate order;
and (7) the disobedience of the order entails
punishment of fine.
It is argued that the enquiry is not in
respect of "offences", though disobedience of an order made there under
may entail punishment of fine, and, therefore, the order is one made in an
administrative capacity. The expression "Magistrate" has been defined
to mean a District Magistrate, a Sub-Divisional Magistrate, a Presidency
Magistrate or a Magistrate of the first class specially empowered by the State
Government, by notification in the Official Gazette, to exercise jurisdiction
under this Act. The definition shows that special jurisdiction is conferred upon
a Magistrate of comparatively high status who can safely be relied upon to
discharge the onerous and delicate duties inherent in such jurisdiction. The
jurisdiction under s. 20 is not conferred on such a Magistrate as a persona
designata but is to be exercised by him in his capacity as a Magistrate
functioning within the limits of his territorial jurisdiction. The procedure
prescribed there under, which we have analysed earlier, approximates, as nearly
as possible, to that of a judicial enquiry. The enquiry starts on information;
notice, along with a copy of the record, is given to the alleged prostitute;
she is given an opportunity to 1009 adduce evidence which necessarily implies a
right to have a public enquiry, to engage an Advocate, to ask for the
examination of the informant or informants and to cross examine them and to
adduce her evidence, both oral and documentary. The Magistrate, on the basis of
the evidence, decides the aforesaid two questions, and makes a suitable order
indicated in the section. The right with respect whereof the jurisdiction is
exercised is an important one.
It is a fundamental right of personal
liberty. No right can be more important to a person than the right to select
his or her home and to move about in the manner he or she likes.
Even depraved woman cannot be deprived of
such a right except for good reasons. When the Legislature conferred
Jurisdiction on a Magistrate to decide the question of imposing restrictions on
such a right by following judicial procedure, it is reasonable to hold that it
conferred jurisdiction on him as a court, unless the clear provisions of the
Act compel us to hold otherwise. Indeed the analysis of the section earlier
made negatives any intention to the contrary. The fact that the enquiry does
not relate to an "offence " is not decisive of the question whether
the Magistrate is functioning as a court. There are many proceedings under the
Code of Criminal Procedure, such as those under ss. 133, 144, 145 and 488,
which do not deal with offences but still it is never suggested that a
Magistrate in making an enquiry in respect of matters there under is not
functioning as a court. We therefore, hold that in the circumstances the
Magistrate must be held to be acting as a court. If the Magistrate is acting as
a court, as we have held he is, it is obvious that be is subject to the
revisional jurisdiction conferred under ss. 435 and 439 of the Code of Criminal
Procedure. The said sections confer ample authority on the courts mentioned
therein to set right improper orders passed by a Magistrate in appropriate
cases. The result of the discussion is that the Act discloses a clear policy
affording a real guide for the Magistrate to decide the two questions which he
is called upon to adjudicate under s. 20 of the Act. He functions as a court
and decides the said two questions after giving full opportunity to the alleged
prostitute to represent her case and examine her evidence. His decision is
subject to revision by the Sessions Court or the High 1010 Court, as the case
may be. In the circumstances it is riot possible to say that uncanalised power
is conferred on the Magistrate as an executive authority to decide the fate of
an alleged prostitute in an arbitrary manner.
The next question is whether the policy so
disclosed offends Art. 14 of the Constitution. It has been well settled that
Art. 14 does not prohibit reasonable classification for the purpose of
legislation and that a law would not be held to infringe Art. 14 of the
Constitution if the. classification is founded on an intelligible differentia
and the said differentia has a rational relation to the object sought to be
achieved by the said law. The differences between a woman who is a prostitute
and one who is not certainly justify their being placed in different classes.
So too, there are obvious differences between a prostitute who is a public
nuisance and one who is not. A prostitute who carries on her trade on the sly
or in the unfrequented part of the town or in a town with a sparse population
may not be so dangerous to public health or morals as a prostitute who lives in
a busy locality or in an overcrowded town or in a place within the easy reach
of public institutions like religious an educational institutions. Though both
sell their bodies, the latter is far more: dangerous to the public,
particularly to the younger generation during the emotional stage of their
life. Their freedom of uncontrolled movement in a crowded -locality or in the
vicinity of public institutions not only helps to demoralise the public morals,
but, what is worse, to spread diseases not only affecting the present
generation, but also the future ones. Such trade in public may also lead to
scandals and unseemly broils. There are, therefore, pronounced and real differences
between a woman who is a prostitute and one who is not, and between a
prostitute, who does not demand in public interests any restrictions on her
movements and a prostitute, whose actions in public places call for the
imposition of restrictions on her movements and even deportation. The object of
the Act, as has already been noticed is not only to suppress immoral traffic in
women and girls, but also to improve public morals by removing.
prostitutes from busy public places in the
vicinity of religious and educational., tutions. The differences between these
two classes of institutes have a rational relation to the object sought to be
achieved by the Act. Section 20, in order to prevent moral decadence in a busy
locality, seeks to restrict the movements of the second category of prostitutes
and to deport such of them as the peculiar methods of their operation in area
judicial decisions arising under the Act and
under analogous Acts were cited at the Bar. The question whether a particular provisions
offends Art. 14 of the Constitution or not depends upon the provisions of the
Act wherein that section appears. The decisions oil other Acts do not afford
any guidance to decide the Vires of s. 20 of the Act. We shall, therefore,
briefly notice the decisions which have a direct bearing on s. 20 of the Act.
A Division Bench of the Bombay High Court, in
Begum v. State(1) bad to consider the same question now before us.
It held that the provisions of s. 20 of the
Act would not be bit by Art. 14 of the Constitution, though it held that the
provisions of s. 20 of the Act which enable a Magistrate to direct a prostitute
to remove herself from the place where she is residing to a place without the
local limits of his jurisdiction was an un-resonable restriction upon the
fundamental right guaranteed under Art. 19(1)(d) and (e) of the Constitution.
We agree with the High Court in so far as it held that the section does not
offend Art. 14 of the Constitution, but we cannot accept the view expressed by
it in respect of Art. 19(1)(d) and (e) thereof. We shall consider this aspect
at a later stage.
In Shama Bai v. State of U. P. (2), Sabai J.,
though he dismissed the writ petition without giving notice to the other party,
made some observations indicating his view that the said provision prima facie
offends Art. 14 of the Constitution. For the reasons already stated by us, we
do not agree with this view. We, therefore, hold that s. 20 of the Act does not
infringe Art. 14 of the Constitution.
Now coming to Art. 19(1)(d) and (e) of the
Constitution, the question that arises is whether s. 20 of the Act imposes an
unreasonable restriction on girls and women leading a life of prostitution. To
state it differently, (1) A.I.R. 1963 Bom. 17.
(2) A.I.R. 1959 All. 57 1012 does s. 20 of
the Act impose reasonable restrictions on the exercise of the fundamental right
of the prostitutes under Art. 19(1)(d) and (e) of the Constitution in the
interests of the general public. Under Art. 19(1)(d) the prostitute has a
fundamental right to move freely throughout the territory of India; and under
sub-cl.(e) thereof to reside and settle in any part of the territory of India.
Under s. 20 of the Act the Magistrate can compel her to remove herself from
place where she is residing or which she is frequenting to places 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 prohibit her from reentering the
place without his permission in writing. This is certainly a restriction on a
citizen's fundamental right under Art. 19(1)(d) and (e) of the Constitution.
Whether a restriction is reasonable in the interests or the general public
cannot be answered on a priori reasoning; it depends upon the peculiar circumstances
of each case. Mahajan J., as he then was, speaking for the Court in Chintaman
Rao v. The State of Madhya Pradesh(1) succinctly defined the expression
"reasonable restrictions" thus :
restriction" connotes the limitation imposed on a person in enjoyment of
the right should not be arbitrary or of an excessive nature, beyond what is
required in the interests of the public. The word "reasonable"
implies intelligent care and deliberation, that is, the choice of a course
which reason dictates." A fairly exhaustive test to ascertain the
reasonableness of a provision is given by Patanjali Sastri C.J. in The State of
Madras v. V. G. Row(2). Therein the learned Chief justice observed thus :
"It is important in this context to bear
in mind that the test of reasonableness, wherever prescribed) should be applied
to each individual statute impugned, and no abstract standard, or general
pattern, of reasonableness can be laid down as applicable to all cases. The
nature of the right alleged to have been infringed, the underlying purpose of
the restrictions (1)  S.C.R. 759, 763.
(2) _ S.C.R. 597, 607.
1013 imposed, the extent and urgency of the
evil sought to be remedied thereby, the disproportion of the imposition, the
prevailing conditions at the time, should all enter into the judicial
verdict." If we may say so, with respect, this passage summarized the law
on the subject fully and precisely. The reasonableness of a restriction depends
upon the values of life in a society, the circumstances obtaining at a
particular point of time when the restriction is imposed, the degree and the
urgency of the evil sought to be controlled and similar others. If in a
particular locality the vice of prostitution is endemic degrading those who live
by prostitution and demoralising others who come into contact with them, the
Legislature may have to impose severe restrictions on the right of the
prostitute to move about and to live in a house 'of her choice. If the evil is
rampant, it may also be necessary to provide for deporting the worst of them
from the area of their operation. The magnitude of the evil and the urgency of
the reform may require such drastic remedies. It cannot be gainsaid that the
vice of prostitution is rampant in various parts of the country. There cannot
be two views on the question of its control and regulation. One of the objects
of the Act is to control the growing evil of prostitution in public places.
Under s. 20 of the Act the freedom of
movement and residence are regulated, but, as we have stated earlier, an
effective and safe Judicial machinery is provided to carry out the objects of
the Act. The said restrictions placed upon them are certainly in the interests
of the general public and, as the imposition of the restrictions is done
through a judicial process on the basis of a clearly disclosed policy, the said
restrictions are clearly reasonable.
It is said that the restrictions on
prostitutes, though they may be necessary, are excessive and beyond the
requirements the eradication of the evil demands. The movements of prostitutes,
the argument proceeds, maybe controlled, but that part of the section which
enables the Magistrate to deport them outside his jurisdiction is far in excess
of the requirements. It is suggested that by consecutive orders made by various
Magistrates, the point may be reached when a prostitute may be deported out of
1014 The second argument borders on fantasy.
The first argument also has no force. If the presence of a prostitute in a locality
within the Jurisdiction of a Magistrate has a demoralising influence on the
public of that locality, having regard to the density of population, the
existence of schools, colleges and other public institutions in that locality
and other similar causes, we (lo not see how an order of deportation may not be
necessary to curb the evil and to improve the public morals. Once it is held
that the activities of a prostitute in a particular area, having regard to the
conditions obtaining therein, are so subversive of public morals anti so
destructive of Public health that it is necessary in public interest to deport
her from that place, we do not see any reason why the restrictions should be
held to be unreasonable. Whether deportation out of the jurisdiction of the
Magistrate is necessary or not depends upon the facts of each case and the
degree of the demoralizing influence a particular prostitute is exercising in a
particular locality. If in a particular case a Magistrate goes out of the way
and makes an order which is clearly disproportionate to the evil influence
exercised by a particular prostitute, she has a remedy by way of revision to an
The Division Bench of the Bombay High Court
in Begum v. State(1) no doubt held that the portion of s. 20 of the Act which
enables the Magistrate to direct a prostitute to remove herself from the place
where she is living to a place without the local limits of his jurisdiction
unreasonably encroaches upon the fundamental right guaranteed under Art.
19(1)(d) and (e) of the Constitution and is,
therefore, invalid. For the aforesaid reasons, we cannot agree with this view.
We, therefore, hold that the provisions of s.
20 of the Act are reasonable restrictions imposed in public interest within the
meaning of s. 19(5) of the Constitution and, therefore, do not infringe the
fundamental rights of the respondents under Art. 19(1)(d) and (e) thereof.
In the result, the appeals are allowed. The
orders of the High Court are set aside and those of the Additional Sessions
judge are restored. The City Magistrate will now proceed with the enquiry on
(1) A.I.R. 1963 Bom. 17.