State of Uttar Pradesh vs Kaushaliya and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeals Nos. 21 to 26 of 1962

Decision Date: 01/10/1963

Coram: P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, Raghubar Dayal, Subba Rao

The judgment entitled State of Uttar Pradesh versus Kaushaliya and Others was delivered on 1 October 1963 by the Supreme Court of India. The Bench was composed of Justice P B Gajendragadkar, Justice K N Wanchoo, Justice J C Shah and Justice Raghubar Dayal. The case is reported as 1964 AIR 416 and 1964 SCR (4) 1002, with a citator reference of F 1978 SC 771 (22). The dispute concerned the operation of section 20 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act 104 of 1956) and raised the questions whether the expression “on receiving information” permitted information from any source, whether the provision gave a magistrate an uncandlised power, and whether the provision constituted an unreasonable restriction under article 19 of the Constitution.

According to the headnote, the respondents in the six appeals were alleged to be prostitutes who were carrying on their trade in Kanpur. The City Magistrate, acting under section 20(1) of the Act, issued notices to the respondents after receiving information from a Sub‑Inspector of Police who was not a Special Police Officer, directing them to show cause why they should not be required to vacate the place where they were residing. The respondents objected, contending that the proceedings were not legally maintainable. The magistrate rejected the objections, and the respondents’ revision petitions were dismissed by the Additional Sessions Judge. The High Court, however, set aside the dismissal on the ground that section 20 offended articles 14 and 19(1)(d)(e) of the Constitution. The State appealed to the Supreme Court on the certificates granted by the High Court.

Before the Supreme Court, it was argued that “information” under the statute must be limited to that received from a Special Police Officer designated under section 13 of the Act. It was further contended that, because the magistrate acted in an executive capacity under section 20, his powers were uncandlised, allowing him to discriminate between one prostitute and another and to interfere on flimsy grounds in the lives of respectable women, thereby offending article 14. The petitioners also maintained that section 20 imposed an unreasonable restriction on women and girls living a life of prostitution, violating articles 19(1)(d) and ( c ).

The Court held that if the Legislature had intended to confine the term “information” to that supplied only by a Special Police Officer, it would have expressly stated so in the provision. The omission therefore indicated that the source of information was not material to the operation of the section. Giving a rational meaning to “on receiving information,” the Court declared that information may emanate from any source. The Court further observed that the Act delineates a clear policy that guides the magistrate in deciding the two questions he is required to adjudicate under section 20. Consequently, the magistrate’s role is that of a court, not an uncandlised executive authority, and his decision remains subject to revision by the Sessions Court or the High Court.

In this matter the magistrate performed the function of a court by deciding the two questions prescribed under section 20 after providing the alleged prostitute with a full opportunity to present her case and to have her evidence examined. The magistrate’s decision was not final, because it could be reviewed by either the Sessions Court or the High Court, depending on the circumstances of the case. Consequently, the power exercised by the magistrate could not be described as an un‑canalised executive power that allowed an arbitrary determination of the fate of an alleged prostitute.

The Court observed that Article 14 does not forbid reasonable classifications made for legislative purposes, and a law does not violate Article 14 when the classification rests on an intelligible differentia that bears a rational relationship to the law’s purpose. The Court noted clear and material distinctions between a woman who is a prostitute and one who is not, as well as between a prostitute whose conduct does not merit any public restriction and a prostitute whose activities in public places justify imposing movement restrictions or even deportation. These distinctions are logically linked to the objective of the Act, which is to prevent moral decay in crowded localities by restricting the movements of the second category of prostitutes or by deporting those whose method of operation necessitates such action. Accordingly, section 20 does not contravene Article 14, as affirmed in Begum State, A.I.R. 1963 Bom. 17 and Shama Bat v. State of U.P., A.I.R. 1959 All 57. The Court further explained that the reasonableness of any restriction depends on societal values, the specific circumstances prevailing at the time the restriction is imposed, the urgency of addressing the evil sought to be controlled, and similar considerations. Controlling and regulating prostitution, especially its vice in public places, serves the public interest, and because the restriction is imposed through a judicial process based on a clearly disclosed policy, it is deemed reasonable, as supported by Chintaman Rao v. State of Madhya Pradesh, [1950] S.C.R. 759 and State of Madras v. V.G. Row, [1952] S.C.R. 597. Moreover, when the activities of a prostitute in a particular area are found to be subversive to public morals and detrimental to public health, the public interest may demand her deportation, and there is no basis to hold such a restriction unreasonable. The Court therefore held that the decision of the Bombay High Court in Begum v. State, to the extent that it declared the restriction under section 20 to encroach upon the fundamental right, was not correct.

In this matter the Court observed that the restrictions imposed under section 20 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 are reasonable limitations enacted in the public interest and therefore do not violate the fundamental freedoms guaranteed by Articles 19(1)(d) and 19(1)(e) of the Constitution. The judgment concerned criminal appeals numbered 21 to 26 of 1962, which were filed against the order dated 17 November 1961 of the Allahabad High Court in criminal revisions numbered 322, 323, 324, 611, 612 and 613 of 1961. Counsel for the appellant appeared on behalf of the State in all the appeals, while counsel for the respondents represented them in appeals numbered 21‑24 and 26. The judgment was pronounced on 1 October 1963 and delivered by Justice Subba Rao.

The six appeals, which were granted leave by certificates from the Allahabad High Court, raised the constitutional validity of section 20 of the Act. The respondents were alleged to be prostitutes operating in the city of Kanpur. After the Sub‑Inspector of Police, who was not a Special Police Officer, supplied information to the City Magistrate of Kanpur, the magistrate recorded the substance of that information and issued notices under section 20(1) requiring each woman or girl to appear before him and to show cause why she should not be ordered to leave the place where she was residing and be prohibited from re‑entering it. The respondents objected to the notices, arguing that the proceedings were not legally maintainable. The City Magistrate dismissed the objections, and the respondents sought revision before the Additional Sessions Judge, Kanpur, whose revision was also dismissed. They then filed revisions before the Allahabad High Court, which set aside the magistrate’s orders and stayed the proceedings, holding that section 20 of the Act infringed the respondents’ rights under Article 14 and the sub‑clauses (d) and (e) of Article 19(1). After obtaining certificates of leave to appeal, the State filed the present appeals. For convenience, the Court reproduced the relevant provision of section 20, which provides that a magistrate, upon receiving information that any woman or girl residing in or frequenting any place within his jurisdiction is a prostitute, may record the information, issue a notice requiring the woman or girl to appear and show cause why she should not be ordered to remove herself from that place and be barred from returning. The notice must be accompanied by a copy of the record and served on the woman or girl.

Under subsection three of Section 20, the magistrate was required, after serving the notice described in subsection two, to investigate the truth of the information that had been received. The magistrate had to give the woman or girl an opportunity to present evidence, to gather any additional evidence he considered appropriate, and, if after such inquiry he was satisfied that the person was a prostitute and that it was necessary for the public interest to remove her from the place, to issue a written order. That order had to specify a date not earlier than seven days from the date of the order, directing the woman or girl to leave the place—whether within or outside the magistrate’s jurisdiction—by the routes and within the time specified, and also to prohibit her from re‑entering the place without a written permission from the magistrate having jurisdiction over that place.

The first issue that arose was whether the information enabling a magistrate to commence the inquiry under Section 20 had to come solely from a special police officer appointed under Section 13 of the Act. Section 13 provided that a special police officer could be appointed by the State Government for dealing with offences under the Act in a specified area. The judgment noted that the position of special police officer was created for the purpose of dealing with offences, whereas Section 20 dealt with a procedural inquiry and not with an offence. Moreover, the language of Section 20—“on receiving information”—was not limited, either expressly or by necessary implication, to information supplied by a special police officer. The judgment observed that if the legislature had intended to restrict “information” to that provided by a special police officer, it would have stated so explicitly. The omission of such a restriction indicated that the source of information was not a material factor for the operation of the provision. The judgment further distinguished between an investigation for an offence, which could have serious consequences for women and therefore was entrusted to specific officers, and the mere provision of information to a magistrate, which merely triggered a judicial inquiry and did not itself carry the same risks. Consequently, the court held that, giving its natural meaning, “information” under Section 20 could originate from any source.

The second question concerned whether Section 20 violated Article 14 of the Constitution. It was argued that the power given to the magistrate by Section 20 was unregulated and exercised in an executive capacity, that it allowed the magistrate to differentiate between prostitutes and non‑prostitutes in restricting their movement and deporting them outside his jurisdiction, and that it permitted the magistrate, on the basis of flimsy and untested evidence, to interfere with the lives of respectable women by deeming them prostitutes, thereby infringing Article 14. The judgment acknowledged that this argument appeared plausible at first glance. However, it also indicated that a closer examination of Section 20 and the related provisions revealed a clear policy framework and effective safeguards designed to prevent arbitrariness, suggesting that the provision did not operate in a wholly unchecked manner.

In this case, the argument advanced was that section 20 of the Act is an unchanneled and uncontrolled power, that the magistrate acts under it in an executive capacity, that the provision permits discrimination between prostitutes in restricting their movements and deporting them outside his jurisdiction, and that it also permits the magistrate, on the basis of weak and untested evidence, to interfere with the lives of respectable women by labeling them as prostitutes, thereby violating Article 14 of the Constitution. While that contention appears plausible at first glance, a thorough examination of section 20 together with the related sections reveals not only a clear policy but also the presence of effective safeguards against arbitrariness. Let us begin by examining the provisions of the Act. The preamble states that the Act was enacted to give effect to the International Convention signed at New York on 9 May 1950 for the suppression of immoral traffic in women and girls. The short title of the legislation designates it as “The Suppression of Immoral Traffic in Women and Girls Act, 1956.” Although the preamble and short title indicate that the primary purpose of the Act is to prevent immoral traffic in women and girls, the remaining sections demonstrate that the legislation pursues additional objectives. Section 2(b) defines “girl” as a female who has not attained the age of twenty‑one years; section 2(1) defines “woman” as a female who has attained the age of twenty‑one years; section 2(e) defines “prostitute” as a female who offers her body for promiscuous sexual intercourse for lure, whether for money or any other consideration; and section 2(f) defines “prostitution” as the act of a female offering her body for promiscuous sexual intercourse for hire, whether for money or any other consideration. The Act contains provisions for punishing men who operate 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 rescued women and girls in protective detention homes, for closing brothels and evicting offenders from premises, for restricting the movements of prostitutes, and even for deporting them to locations outside the jurisdiction of the magistrate. Section 7(1) provides for the punishment of a prostitute who carries on prostitution in any premises located within two hundred yards of a public place of worship, an educational institution, a hostel, a hospital, a nursing home, or any other public place notified for that purpose by the Commissioner of Police or the District Magistrate, as the case may be. Section 8 makes it an offense to seduce or solicit for the purpose of prostitution in any public place, or within sight of any public place, in a manner that can be seen or heard from a public place, whether the conduct originates from within a building or not.

In this case the Court explained that Section 18 of the Act authorises the closure of brothels and the eviction of offenders when the premises are situated within two hundred yards of any public place specified in Section 7(1) and are being used or operated as a brothel by any person or are being used by prostitutes to carry on their trade. The Court observed that the Act was enacted to serve a public social purpose, namely to suppress immoral traffic in women and girls, to rescue fallen women and girls, and to prevent the deterioration of public morals. The Act gives a clear definition of the term “prostitute” and provides specific indications of the places from which prostitutes should be removed or where their movements may be restricted. With this policy in mind the Court examined the provisions of Section 20(1) of the Act. The procedural steps laid down in Section 20 are as follows: first, an inquiry is initiated by a Magistrate upon receipt of the requisite information that a woman or girl is a prostitute; second, the Magistrate records the substance of that information; third, the Magistrate sends a notice together with a copy of the recorded information; fourth, the Magistrate gives the woman or girl an opportunity to adduce evidence on two points, namely whether she is a prostitute and whether, in the interest of the general public, she should be required to remove herself from the place where she resides or frequents; fifth, the Magistrate makes findings on those two questions and, based on those findings, issues the appropriate order; and sixth, non‑compliance with the order attracts a penalty of fine. The Court noted the argument that because the inquiry is not in respect of an “offence”, the order might be considered administrative in nature and the disobedience punishable by fine would support that view. However, the Court clarified that the term “Magistrate” under the Act is defined to include a District Magistrate, a Sub‑Divisional Magistrate, a Presidency Magistrate or a first‑class Magistrate specially empowered by the State Government through notification in the Official Gazette to exercise jurisdiction under the Act. This definition shows that special jurisdiction is vested in a Magistrate of comparatively high status who can be relied upon to discharge the onerous and delicate duties inherent in such jurisdiction. The Court emphasized that the jurisdiction conferred by Section 20 is not exercised by the Magistrate as a designated individual (persona designata) but in his capacity as a Magistrate functioning within the limits of his territorial jurisdiction. Moreover, the procedure prescribed under the section approximates, as closely as possible, a judicial inquiry. The inquiry begins with the receipt of information; a notice together with the copy of the record is served on the alleged prostitute; the woman is afforded an opportunity to adduce evidence, which necessarily entails a right to a public enquiry, the right to engage counsel, the right to request examination of the informant or informants and the right to cross‑examine them.

The magistrate was required to receive both oral and documentary evidence from the alleged prostitute and to consider that evidence in deciding the two questions prescribed by the statute, after which he was to issue an order in accordance with the provision. The Court emphasized that the right whose scope the magistrate’s jurisdiction touched was a significant right, namely a fundamental right to personal liberty. It observed that no right was more important to an individual than the freedom to choose one’s residence and to move about as one wishes, and that even a woman deemed immoral could not be stripped of that freedom except for a valid reason. When the legislature empowered a magistrate to determine whether restrictions on that liberty should be imposed by means of a judicial procedure, the Court held that the magistrate was thereby acting as a court, unless the statute expressly indicated a contrary intention. The earlier analysis of the section, the Court noted, negated any intention to treat the magistrate merely as an executive officer. The fact that the enquiry did not concern an “offence” was not decisive; the Court pointed out that many provisions of the Code of Criminal Procedure, such as sections 133, 144, 145 and 488, also relate to non‑offence matters, yet magistrates exercising those provisions are still regarded as functioning as courts. Accordingly, the Court concluded that, in the present circumstances, the magistrate must be regarded as acting in a judicial capacity. Because the magistrate was functioning as a court, his decisions were subject to the revisional jurisdiction conferred by sections 435 and 439 of the Code of Criminal Procedure, which authorize higher courts to correct any improper orders. The discussion led the Court to determine that the Act clearly provided a policy guide for the magistrate to decide the two questions under section 20, after giving the alleged prostitute a full opportunity to present her case and examine her evidence. The magistrate’s determinations were thus subject to revision by the Sessions Court or the High Court, as appropriate, and it was not possible to say that the statute gave the magistrate an un‑channelled executive power to decide the fate of an alleged prostitute arbitrarily. The Court then turned to the question of whether the policy disclosed by the Act violated Article 14 of the Constitution. It reiterated the settled principle that Article 14 does not forbid reasonable classification in legislation, and that a law does not infringe Article 14 if the classification is based on an intelligible differentia and the differentia has a rational relation to the

In discussing the constitutionality of the provision, the Court observed that the distinction drawn between a woman who is a prostitute and a woman who is not a prostitute is a clear basis for classification, and that such classification is justified by the differences that exist between the two groups. The Court further explained that even within the class of prostitutes, there are evident differences between those who constitute a public nuisance and those who do not. A prostitute who works covertly, operates in a sparsely populated area, or conducts her trade in a remote part of a town is unlikely to pose the same health or moral danger as a prostitute who conducts her business in a bustling locality, an overcrowded town, or in close proximity to public institutions such as religious or educational establishments. Although both categories involve the sale of a woman’s body, the Court emphasized that the latter category is far more hazardous to the public, especially to younger members of society who are in an emotionally vulnerable stage of life. Their unrestricted movement in crowded areas or near public institutions not only tends to erode public morality but also increases the risk of transmission of diseases that affect not only the current generation but also future generations. Moreover, the Court noted that the public practice of prostitution can give rise to scandals and disorderly disturbances.

The Court therefore concluded that there are pronounced and real differences between a woman who is a prostitute and a woman who is not a prostitute, and also between a prostitute whose activities do not call for any public‑interest restrictions on her movement and a prostitute whose conduct in public places warrants the imposition of such restrictions, including the possible order of deportation. The object of the Act, as previously identified, is not merely to suppress immoral traffic in women and girls but also to improve public morals by removing prostitutes from busy public places situated near religious and educational institutions. Consequently, the Court held that the differentiation between the two classes of prostitutes bears a rational relationship to the objective sought to be achieved by the Act. Section 20, in order to prevent moral decay in a crowded locality, seeks to restrict the movements of the second category of prostitutes and to order deportation of those whose method of operation in the area justifies such action.

The Court then turned to judicial decisions arising under the Act and analogous statutes that had been cited. It observed that whether a particular provision offends Article 14 of the Constitution depends upon the statute in which that provision appears, and that decisions concerning other Acts do not provide guidance for assessing the validity of Section 20 of the present Act. Accordingly, the Court briefly noted the decisions that directly bear upon Section 20. It referred to a Division Bench of the Bombay High Court in Begum v. State, which had examined the same question before and held that the provisions of Section 20 would not be struck down as violative of Article 14, although that decision also examined a related power of a Magistrate to direct a prostitute to move from her residence to a place outside his jurisdiction. The Court recorded this precedent as relevant to its present consideration.

The Court observed that directing a prostitute to move from her residence to a location beyond the magistrate’s local jurisdiction constituted an unreasonable restriction on the fundamental rights guaranteed by Articles 19(1)(d) and (e) of the Constitution. While agreeing with the Bombay High Court that Section 20 of the Act does not offend Article 14, the Court could not accept the High Court’s view that the provision also complied with Articles 19(1)(d) and (e). The Court therefore reserved consideration of that aspect for later discussion. In Shama Bai v. State of U.P. (2), Justice Sabai dismissed the writ petition without giving notice to the opposite side, yet he remarked that the provision prima facie violated Article 14. The Court, however, rejected that observation for the reasons already explained, and consequently held that Section 20 of the Act does not infringe Article 14. Turning then to Articles 19(1)(d) and (e), the Court posed the question whether Section 20 imposes an unreasonable restriction on women engaged in prostitution. In other words, does Section 20 constitute a reasonable limitation on the prostitutes’ fundamental right to move freely throughout India under Article 19(1)(d) and to reside and settle anywhere in India under Article 19(1)(e)? The provision empowers a magistrate to order a prostitute to vacate the place where she lives or frequents, and to relocate either within or outside his jurisdiction along routes and within a time frame specified in the order, additionally prohibiting her re‑entry without written permission. Clearly, this curtails the citizen’s rights under Articles 19(1)(d) and (e). Whether such a restriction is reasonable in the public interest cannot be decided a priori; it must be examined in the context of the specific circumstances of each case.

To assess reasonableness, the Court referred to the definition offered by Mahajan J., then speaking for the Court in Chintaman Rao v. State of Madhya Pradesh (1), wherein “reasonable restriction” means a limitation that is neither arbitrary nor excessive, and is no more than what is required for the public interest, reflecting intelligent care and deliberation dictated by reason. The Court further noted the exhaustive test articulated by Chief Justice Patanjali Sastri in The State of Madras v. V. G. Row (2). The learned Chief Justice emphasized that the test of reasonableness must be applied to each statute separately, without an abstract or universal standard. The evaluation must consider the nature of the right claimed to be infringed, the purpose of the restriction, the urgency and extent of the evil the restriction seeks to remedy, the proportionality of the measure, and the prevailing conditions at the time. The Court concluded that the reasonableness of a restriction depends on societal values, the specific circumstances prevailing when the restriction is imposed, and the degree and urgency of the evil that the restriction aims to control. Consequently, in any locality where prostitution is endemic and degrades those involved while demoralising others, the assessment of reasonableness must be grounded in these contextual factors.

In this case, the Court observed that the test of reasonableness must be applied to each individual statute that is challenged, and that no single abstract standard or general pattern of reasonableness could be prescribed for all situations. The Court explained that several factors must be examined, including the nature of the right claimed to be infringed, the purpose underlying the restriction, the extent and urgency of the evil that the restriction seeks to remedy, the disproportionality of the measure, and the conditions prevailing at the time the restriction is imposed. The Court noted that this passage, which summarized the law on the subject, captured the principle accurately and completely.

The Court further clarified that the reasonableness of a restriction depended upon the values of life in society, the specific circumstances at the moment the restriction was enacted, and the degree and urgency of the evil that the restriction aimed to control. The Court gave the example of a locality where the vice of prostitution was widespread, degrading those who earned a livelihood through prostitution and demoralising others who came into contact with them. In such a circumstance, the Legislature might deem it necessary to impose severe restrictions on the prostitute’s right to move about and to reside in a house of her own choosing. If the vice was particularly entrenched, the Court said, the Legislature might also consider measures such as deporting the most problematic individuals from the area of their operation, because the magnitude of the evil and the urgency of reform could justify drastic remedies.

The Court recognized that prostitution was a pervasive problem in various parts of the country and that there could be no two views on the need for its control and regulation. One of the objects of the Act under consideration was to curb the growing evil of prostitution in public places. Under section twenty of the Act, the freedom of movement and residence of prostitutes was regulated, but the Court stressed that an effective and safe judicial machinery had been provided to achieve the objectives of the Act. The Court held that the restrictions imposed were clearly in the interests of the general public and, because they were enacted through a judicial process based on a clearly disclosed policy, they were reasonable.

The Court rejected the argument that the restrictions on prostitutes, though necessary, were excessive and beyond what was required for eradicating the evil. The contention that the provision allowing a magistrate to deport a prostitute outside his jurisdiction was overly broad was dismissed as unfounded. The Court also rejected the suggestion that successive orders by various magistrates could ultimately lead to a prostitute being deported out of the country, describing that notion as fanciful. The Court explained that if the presence of a prostitute in a magistrate’s jurisdiction had a demoralising influence on the local public, considering factors such as population density, the presence of schools, colleges, and other public institutions, an order of deportation could be justified to curb the evil and improve public morals. Once it was established that a prostitute’s activities in a particular area were so subversive of public morals and detrimental to public health that deportation was necessary in the public interest, the Court saw no reason to deem the restriction unreasonable. The Court added that whether deportation beyond the magistrate’s jurisdiction was required depended on the facts of each case and the degree of demoralising influence exercised. If a magistrate issued an order that was clearly disproportionate to the evil presented, the Court noted that the affected person had a remedy by way of revision to an appropriate court.

The Court observed that when the local population density is high, when schools, colleges and other public institutions are situated in the area, and when similar circumstances exist, it is difficult to imagine a situation where an order of deportation would not be necessary to curb vice and to protect public morals. Once it is established that the conduct of a prostitute in a specific locality, considering the prevailing conditions, is so subversive of public morals and so detrimental to public health that removing her from that place serves the public interest, the Court found no reason to deem the statutory restrictions unreasonable. The necessity of deporting a person beyond the Magistrate’s jurisdiction, the Court held, must be decided on the facts of each case and on the extent of the demoralising influence that the individual prostitute exerts in that particular locality. If, in any case, a Magistrate were to issue an order that is clearly disproportionate to the harmful influence inflicted by the prostitute, the affected person would have a remedy through a revision petition to an appropriate higher court.

The Court noted that the Division Bench of the Bombay High Court in Begum v. State (A.I.R. 1963 Bom. 17) had held that the portion of section 20 of the Act which permits a Magistrate to direct a prostitute to remove herself from her place of residence to a location outside the local limits of his jurisdiction unreasonably encroached upon the fundamental rights guaranteed under Articles 19(1)(d) and (e) of the Constitution, and was therefore invalid. The Court could not agree with that view. It held that the provisions of section 20 of the Act constitute reasonable restrictions imposed in the public interest within the meaning of Article 19(5) of the Constitution, and consequently do not infringe the respondents’ fundamental rights under Articles 19(1)(d) and (e). Accordingly, the Court allowed the appeals, set aside the orders of the High Court, and restored the orders of the Additional Sessions Judge. The City Magistrate was directed to proceed with the enquiry on its merits, and the appeals were allowed.