The Delhi High Court today stayed the prohibition on cross-gender massage services in the city, saying there was no reasonable connection between the absolute ban and preventing prostitution at spas.
Justice Rekha Palli, who was hearing petitions challenging the ban, observed that a sudden prohibition would adversely affect those employed in the spa industry and opined that the “cure” has to be proportionate to the problem.
“I am of the prima facie view that this kind of an absolute ban on cross-gender massage cannot be said to have any reasonable connection with the aim of the policy, which is to regulate the functioning of the spas and ensure that no illegal trafficking or prostitution takes place in the city,” the judge stated.
“I must laud the state for taking up this issue. But the point is, ultimately the cure also has to match… there has to be a way of doing anything. Because there is a problem, because you found that spas are running like this..(as Delhi government counsel said) like prostitution rackets, it cannot mean that you would close them or put such a condition that would affect the livelihood of a lot of people and that too suddenly,” she added.
The court stated that the respondent authorities ought to have taken measures to regulate spa centres so that such illegal activities are dissuaded, and it prima facie appeared that the policy to ban cross-gender massages was framed without any consultation with professionals involved in spa services.
“… merely because the police and corporations have not been able to take effective steps to ensure that no illegal spas are permitted in the city and ones holding licences do not indulge in any illegal activity, it cannot be a ground (to impose a ban),” opined the court which stayed the operation of the ban till the next date of hearing in January.
“We are coming out of Covid… These are men and women who have trained for so many years. This is about their livelihood also,” it said.
The court, at the same time, also took into account a large number of unlicensed spas in the city and directed the three municipal corporations and the Delhi police to carry out an inspection of their respective area, and take appropriate steps for the closure of those functioning without a valid license. “I feel sad that this is happening under the nose of the corporations and the police. They forget that they have wives, daughters and sisters at home,” the court remarked.
“The fact as emerges from the record is that there are 5,000 spas in the city even though as per the three corporations, only about 400 spas have been issued licences. There is absolutely no justification on part of the police or the corporation in not taking appropriate action against the illegally running spas… (or) suspending licence of spas against whom FIRs have been registered or those which are openly indulging in illegal activities,” it added.
The court clarified that in case any illegality is found during the inspection, the police will register appropriate cases and immediately pass the information to the municipal bodies for action.
The court issued notice on the petitions by owners of certain spa centres and therapists challenging the Delhi government’s policy guideline prohibiting cross-gender massages and the consequent directions passed by the municipal corporations. It also granted time to the city government to file its response.
The Delhi government defended the policy on the ground that the prohibition was introduced after due deliberation and was meant to protect women and children from the menace of prostitution at the spa centres. Senior advocate Rahul Mehra, appearing for the city government, stated that the ban was in larger public interest and the same has to prevail over individual rights.
A recommendation was received from the Delhi Commission for Women (DCW) which, after extensive research, came to a conclusion that spa centres were being virtually run as prostitution centres, he said. The senior lawyer also highlighted that not only were there FIRs against some of the petitioners for indulging in illegal activities, but there were also advertisements in “obnoxious language” which indicated the presence of illegal sexual activities. Lawyers appearing for DCW and the municipal corporations also defended the ban.
Senior counsel Sachin Dutta, appearing for one of the petitioners, contended that the fundamental right of the spa owners cannot be taken by an executive order and that all spa centres “cannot be painted with the same brush”.
In September, one of the petitioners, Association of Wellness Ayurveda & Spa had told the court that the ban on cross-gender massages was unconstitutional for being in violation of Article 19(1)(g) of the Constitution and assuming prostitution to be only in the heterosexual domain is illogical.
The petitioner had claimed that every industry has “some bad apples, but that does not mean that every spa centre across the state is running a prostitution and human trafficking racket”.