J.Sahai, J. - (1.) The points involved in this writ petition are similar to those in Civil Misc. Writ No. 1371 of 1958 which I have disposed of today. Both these writ petitions were heard together and no separate arguments were addressed in either of them. In my order in writ petition No. 1371 of 1958 I have dealt with the questions raised in these two petitions in some detail, and for the reasons given in that order I reject this petition. Civil Miscellaneous Writ No. 1371 of 1958. 1-a. The petitioner has come to this Court on the allegation that she is a prostitute aged 24 years and is also a singer. She resides in premises No. 54-A, Mohamad Ali Park, Allahabad, of which the respondent No. 5 is the landlord and the respondent No. 4 the chief tenant. Her allegation is that prostitution is her hereditary trade and the only means of her livelihood as also that of her cousin sister and two younger brothers who are her dependants and who wholly live on her earnings made by prostitution. She complains that the Suppression of Immoral Traffic in Women and Girls Act, 1956, (hereinafter referred to as the Act) is ultra vires of the Constitution of India, as it illegally prohibits the petitioner from carrying on her trade and in any case imposes unreasonable and illegal restriction on the same. She alleges that the result of the enforcement of the Act would be that she would be left to starve as she has no other source of livelihood and the chances of her being rehabilitated as a good housewife in society are nil. There is an averment in the petition as also in the affidavit filed in support of it that she knows no other trade or profession and consequently cannot carry on any other profession or trade. On these facts she has prayed for the issue of a writ of mandamus or any other writ, order or direction commanding the respondents Nos. 1 to 3 to restrain from interfering with the petitioner's carrying on her trade of prostitution or from interfering with the visit of her customers to her place. It is also prayed that the respondents Nos. 4 and 5 be restrained from taking any action against the petitioner or her customers under the said Act. It is also prayed that the respondents Nos. 4 and 5, be restrained from taking any action for forcible eviction of the petitioner from the premises in which she is at present living pending the disposal of the petition. There is also another interim prayer that during the pendency of the present writ petition the respondents Nos. 1 to 3 be restrained from taking any action against the petitioner under the Act and respondents Nos. 4 and 5 from taking steps to evict the petitioner from the premises in which she is living and carrying on the profession of a prostitute.
(2.) It is true that the profession or trade of a prostitute has existed in all civilised countries from the earliest times though it has always been subject to regulation by law or custom. It is also true that the number of prostitutes in this country Ss very large and in most cases it would be impossible for them to get themselves rehabilitated in society if under the law they are stopped from carrying on their profession or the conditions for their existence are made so difficult that they have to leave it. It cannot also be denied that there are several external causes which induce women to turn to prostitution for livelihood over which they have no control. The most important ones are :-- "(1) difficulty of finding employment; (2) excessively laborious and ill-paid work; (3) hard treatment of girls at home. . (4) promiscuous and indecent mode of living among the overcrowded poor; (5) the aggregation of people together in large communities and factories, whereby the young are brought into constant contact with demoralised companions; (6) the example of luxury, self-indulgence and loose manner set by the wealthier classes; (7) demoralising literature and amusements; (8) the arts of profligate men and their agents." It is also true that the society and the Government owe a duty to rehabilitate the prostitutes if they are by law being forced to give up their profession. But considerations of difficulty in rehabilitating the prostitutes in society or the fact that several causes lead to prostitution over which the girls carrying on prostitution have no control can be no grounds on which the Act can be invalidated if it has been constitutionally passed and is also not otherwise ultra vires. Hardship is no consideration while dealing with the constitutionality of an Act. The Act has been passed "to provide in pursuance of the International Convention signed at New York on the 9th day of May, 1950, for the suppression of immoral traffic in women and girls," which has been ratified by the Government of India. The first ground of attack is that the petitioner's right to carry on her profession of a prostitute is absolute under Article 19 of the Constitution of India and is subject only to such restrictions, which may be considered to be reasonable in the interests of the general public. Article 19 (1) (g) of the Constitution of India runs as follows :-- "All citizens have the right-- (g) to practise any profession, or to carry on any occupation, trade or business." Clause (6) of the said Article runs as follows :-- "Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to-- (i) The professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise." The position therefore is that every person has normally got a right to practise any profession or carry on any occupation, trade or business of his choice but such right is subject to the right of the State to make laws imposing, in the interests of the general public, reasonable restrictions on the exercise of the right to practise that profession or to carry on that occupation, trade or business. I have used the word 'normally' in the preceding sentence because this rule has some exceptions and I would at the appropriate place in this judgment consider those of the exceptions which are relevant for the purposes of the present case, It cannot be denied that the work of a prostitute is a profession, occupation or trade within me meaning of Article 19(1)(g) of the Constitution of India, In fact it would be seen that in the Act itself on several occasions the word "trade" has been used with reference to prostitution, (see Section 7 (2)(a)). The use of the word "any" in Article 19 of the Constitution before the words "profession, or to carry on any occupation, trade or business" clearly indicates that normally a citizen is free to carry on any profession, trade or occupation whatsoever. Therefore the first question that has to be examined is whether the Act prohibits the carrying on of the profession or occupation or trade or a prostitute or only imposes restrictions on it which are reasonable. It may be said at once that where the effect of a restrictive legislation is to totally prevent a citizen from carrying on a trade, business or a profession such a restriction is unreasonable and void Chintaman Rao v. State of M.P., AIR 1951 SC 118 (A); Rashid Ahmed v. Municipal Board Kairana, AIR 1950 SC 163 (B); and T. B. Ibrahim v. R.T.A. Tanjore, AIR 1953 SC 79 (C). It is also settled law that restrictions imposed in an Act are subject to judicial scrutiny and it will be open to courts to say whether a particular restriction is reasonable or not (see Chintaman Rao v. State of M. P.) (A) (refer-ed to above), It is not necessary to multiply cases on this point because it is now settled beyond controversy that the question whether a restriction is reasonable or not is justiciable. It may also be remembered in this connection that under the provisions of the Penal Code Prostitution is not an offence. Section 372 of the Penal Code only prohibits the sale, letting to hire, or otherwise disposing of any person under the age of 18 years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose. After having read the Act carefully I am of the opinion that it is not quite correct to say that the Act prohibits the carrying on of the profession or trade of a prostitute though it cannot also be denied that it has imposed restrictions on the same. This Act has got twentyfive sections in all. Of these some are penal. Section 3 of the Act provides for punishment for keeping a brothel or allowing premises to be used as a brothel. Section 4 of the Act makes it punishable for any person over the age of 18 years who knowingly lives, wholly or in part, on the earnings of prostitution of a woman or girl. Section 5 prohibits the procuring, inducing or taking of a woman or girl for the sake of prostitution, and makes the same punishable. Section 6 makes a person liable for punishment if he or she detains a woman or girl in premises where prostitution is carried on. Section 7 renders any person liable to punishment who carries on prostitution, or with whom prostitution is being carried on, in any premises which is within a distance of 200 yards of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other place of any kind as may be notified in this behalf by the Commissioner of Police (where there is such -a Commissioner) or by the District Magistrate. This section also provides for punishing the keeper of any public place who knowingly permits prostitutes for purposes of their trade to resort to or remain in such place, or being the tenant, lessee, occupier or person in charge of any premises knowingly permits the same or any part thereof to be used for prostitution, or being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use. Section 8 provides, for punishing a person who 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 (a) by words, gestures, wilful exposure of her person (whether by sitting by a window or on the balcony of a building or a house or in any other way), or otherwise tempts or endeavours to tempt or attracts or endeavours to attract the attention of any person for the purpose of prostitution, or (b) solicits or molests any person or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by public place or to offend against public decency, for the purpose of prostitution. Section 9 makes the seduction by any person having the custody or care of a woman or girl or who causes or aids or abets the seduction of a woman or girl for prostitution, punishable. Section 10(1) (a) authorises a court to release under certain specified circumstances a person convicted of an offence punishable under the Act on probation of good conduct. Section 10 (1) (b) permits a court to let off certain offenders under the Act after admonishing them in the manner provided for in Sub-section (IA) of Section 562, Cr. P. C. Section 10 (2) however authorizes a court to detain a person convicted of an offence punishable under Section 7 of the Act in the protective home for a period of not less than two years and not more than five years in lieu of sentence of fine or imprisonment. Sub-section 3 of Section 10 lays down that in no case a person convicted Under Section 3 or Section 6 or Section 9 shall be released on probation or with admonition. Section 12 authorises a court to bind down persons who have been habitually committing, or attempting to commit, or abetting the commission of offences punishable under the Act, and who have been convicted under any of the provisions of the Act. Section. 18 authorises a Magistrate on receipt of information from the police or otherwise that any house, room, place or any portion thereof within a distance of two hundred yards of any public place referred to in Sub-section (1) of Section 7 is being run or used as a brothel by any person, or is being used by prostitutes for carrying on their trade, to issue notice to the owner, lessor or landlord of such house, room, place or portion or the agent of the owner, lessor or landlord or the tenant, lessee, occupier of, or any other person in charge of such house, room, place or portion, to show cause within seven days of the receipt of the notice why the same should not be attached for improper user thereof, and if after hearing the person concerned the Magistrate is satisfied that the house, room, place or portion is being used as a brothel or for carrying on prostitution then the Magistrate may pass orders directing the eviction of the occupier within seven days of the passing of the order from the house, room, place, or portion, or directing that before letting it out during the period of one year immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or landlord shall obtain the previous approval of the Magistrate. Section 20 authorises the removal by a Magistrate of any woman or girl who is carrying on the trade of a prostitute if it appears to him that such woman or girl is a prostitute and that it is necessary in the interest of the general public that such woman or girl be removed from the local limits of his jurisdiction and be prohibited from entering the same. At this stage, I am not referring to the other sections of the Act because the impugned sections are only these and it is with regard to these sections that it is complained that they have the effect of completely stopping the profession or trade of a prostitute.
(3.) None of the sections mentioned above have the effect of stopping the profession or trade of a prostitute altogether. The only question therefore is whether the restrictions which are imposed upon the trade or profession of a prostitute by means of the provisions of the Act are reasonable restrictions. "In order to determine the reasonableness of the restrictions regard must be had to the nature of the business and the conditions prevailing in the trade. It is obvious that these factors must differ from trade to trade and no hard and fast rules concerning all trades can be laid down." (See the case of Cooverjee v. Excise Commissioner, Ajmer, AIR 1954 SC 220 (D) ). It cannot be denied that "prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community." It must also be noticed that with respect to the suppression of the traffic in women and children, several International instruments are in force. They are enumerated below : 1. International Agreement of 18th May, 1904 for the suppression of the White Slave Traffic, as amended by the Protocol approved by the General Assembly of the United Nations on 3rd December, 1948; 2. International Convention of 4th May, 1910 for the suppression of the White Slaves Traffic, as amended by the above mentioned Protocol; 3. International Convention of 30th September, 1921 for the Suppression of the Traffic in Women and Children, as amended by the Protocol approved by the General Assembly of the United Nations on 20th October, 1947; 4. International Convention of 11th October, 1933 for the Suppression of the Traffic in Women of Full Age, as amended by the aforesaid Protocol.;