The Delhi High Court Tuesday asked the Delhi government and MCD to file replies in view of its previous order regarding details of spa centres in their jurisdictions.
The high court asked them to inform about the number of spa centres, how many of them have valid licences, and whether their business practices were legitimate. Justice Yashwant Varma passed the order while hearing pleas challenging the ban on cross-gender massage services in the city which was earlier stayed by the high court. “The Delhi government and MCD shall also file their responses bearing in mind the issues flagged in the April 5 order. List the matter on November 21,” the high court said. It said the interim order of December 16, 2021, staying the prohibition on cross-gender massage will continue. During the hearing, counsel for spa owners claimed before the court that they were being harassed by the police every day under the garb of inspecting their premises.
The counsel claimed under the garb of conducting the inspection, an extortion racket was being run by the police and the Municipal Corporation of Delhi (MCD). The advocates representing the Delhi government said they are adopting the counter affidavit filed by the State in one of the petitions.
The lawyer for the MCD submitted that now the three municipal corporations have been unified, he will be filing a consolidated reply to the petitions.
In its April 5 order, the high court had said though certain status reports have been filed by the three Municipal Corporations of Delhi-East, South, and North, there was no disclosure on the total number of spas operating in their respective areas and how many of them have valid licences.
“The status reports fall short of explaining further whether the spa centers were conducting businesses as per law and not indulging in illegal activities. These disclosures need to be made by responsible officers of the corporations,” it had said.
While staying the prohibition, the high court had earlier said there was no reasonable connection between the absolute ban and preventing prostitution at spas and had 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.
The court had said 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),” the court had opined.
The court had also taken into account a large number of unlicenced spa centres in the city and had directed the municipal corporation and the Delhi police to inspect their respective area and take appropriate steps for the closure of those functioning without a valid licence.
“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 the licence of spas against whom FIRs have been registered or those which are openly indulging in illegal activities,” it had added.
The court had 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.
The Delhi government had 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. Lawyers appearing for DCW and the municipal corporation had also defended the ban.
The counsel for one of the petitioners had contended that the fundamental right of the spa owners cannot be taken by executive order and that all spa centres “cannot be painted with the same brush”.
In September last year, one of the petitioners, the Association of Wellness Ayurveda & Spa 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”.
