"Happening Under Nose Of Authorities, Paints A Very Unfortunate Picture": Delhi HC Calls For Inspection Of Illegally Run Spa Centres

The Delhi High Court on Thursday expressed its unhappiness over functioning of illegal spa centres in the national capital, remarking that it is unfortunate that such things are happening under the nose of the authorities.

Justice Rekha Palli thus directed the three municipal corporations in the city and the Delhi Police to carry out an inspection of their respective areas within one week and take appropriate steps to for closure of all spas being run without licenses.

"As lady I feel very depressed, I feel very sad. This is happening under the nose of the corporations and Delhi Police. They probably forget they have wives, daughters and sisters at home. It's very sad," the Court orally remarked.

The Court was hearing pleas challenging the guidelines issued by the Delhi Government banning cross-gender spa and massage services in the national capital.

The grievance of the petitioners was against the license policy issued by the three corporations based on the policy guidelines issued by the GNCTD dated 18 August 2021. It was the petitioners' case that while issuing the policy guidelines for regulating the functioning of spas being run in Delhi, the respondents imposed prohibitions which were violative of their fundamental rights, having no nexus with any public interest.

"I would be happy if the Delhi Police and the corporations would take active action and close all of this. There I am with you. There should be no reason why we should have illegal spas in the city," the Court told the Delhi Government.

During the course of hearing, Senior Advocate Sachin Dutta appearing the petitioners submitted that imposition of the said policy without giving any prior notice or consultation with any of the persons involved in the profession for the last many years was illegal and liable to be set aside.

While drawing the Court's attention to clause 2 b of the impugned guidelines which prohibited cross gender massage, he submitted that application of the said clause has been excluded from spas and massage centres in physiocentres operated in government or private hospitals or any other hospitals run by autonomous bodies or other state run therapeutic centres.

Appearing for other petitioners, Advocate Davesh Vashishtha argued for the cause of female therapists, specifically on their constitutional right guaranteed under Article 19(1)(g).

On the other hand, Senior Advocate Rahul Mehra appearing for the Delhi Government defended the impugned policy and argued that a recommendation was received from the Delhi Commission for Women which had, after extensive research and interaction with women in the city, come to a conclusion that these massage centres were being misused and are virtually being used as prostitution centres.

He handed over a chart to the Court in order to show that some of the members of one of the petitioner associations were blatantly publicising on their website that they provide not only massage services but also services which which will amount to providing sexual pleasure to the clients.

Therefore, he submitted that some of the members of petitioner associations were themselves guilty of indulging in illegal activities which clearly showed that spas in the city were openly indulging in sexual activities.

"Having given my thoughtful consideration to the submissions of the parties, even though I have no reasons to differ from the submissions of learned senior counsel for the GNCTD that the intention behind the impugned policy guidelines may have been bona fide and the attempt of the GNCTD and DCW was to ensure that spas are not run in a manner so as to be virtually become prostitution centres or lead to exploitation of women and young girls in the city, the fact however remains that there are about 5,000 spa centres running in the city even though as per 3 corporations only about 400 spas have been issued licenses," the Court recorded in the order.

The Court noted that there was absolutely no justification on the part of the Delhi police or the corporations for not taking appropriate actions against illegally running spas in the city.

During the course of hearing, Justice Palli expressed her surprise over the fact that about 5,000 spas centres were running when the MCDs had given permission to only about 400 spas.

"First you have to permit only the licensed spas so that you can regulate them. What is happening is all over the city, I don't want to say, because there are people very conveniently, every corner if you say people are operating, it is with the connivance of a number of people. Why is that happening? If you were permitting only licensed spas then regulate them, cancel their license immediately," she remarked orally.

"I am really sorry to say, if the corporations or whosoever is there who is not taking action, it needs to be condemned," she added.

"In fact, there is no justification even for the 3 corporations not having taken any action to suspend or cancel license of spas against whom FIRs already stand registered or in fact even those who are openly stated to be indulging in activities which are illegal as it is claimed that they are openly offering services for sexual pleasure," the Court said.

"I am however of the prima facie view that merely because the corporations and Delhi Police have not been able to take effective steps to ensure that no illegal spas are operated in Delhi and the ones holding licenses do not indulge in any illegal activity whatsoever, this kind of absolute ban on cross gender massage cannot be said to have any reasonable connection with the aim of the policy which purpose thereof seems to be regulation of the spas and ensure that no illegal trafficking of prostitution takes place in the city," it added.

The Court said that even though the Respondents claimed to have made wide consultations with all stake holders, it prima facie appeared that no consultation were made with professional therapists.

The Court therefore directed that till the next date, the operation of the clause 2b of the policy and consequential policies of the corporations shall be stayed.

"The Court is also conscious of the fact that the pandemic of Covid-19 which has affected the entire world for the last one or two years has also largely affected the livelihoods of these persons," the Court noted.

"However, the matter does not end here and the Court cannot ignore the gross fact which has been brought to the notice of this Court, the three corporations and Delhi Police are directed to carry out an inspection of their respective areas within one week from today and take appropriate steps to immediately ensure to pass appropriate orders directing closure of all spas being run without licenses," it directed.

The Court added that the details will be provided by the respective commissioners of the corporations as well as the Delhi police and that the police will also ensure that the information about cases where licensed spa holders are indulging in illegal activities are furnished to the corporations at the earliest.

"After Delhi police completes inspection of all spas which are being run without licenses, it will also commence inspection of all licensed spas and ensure that appropriate cases are registered in case any illegalities are found in the said spas under valid licenses from the corporations. Immediate information regarding registration of cases will then be forwarded to corporations so that appropriate steps to suspend or cancel their licenses can be made," the Court added.

The Court then listed the matter for further hearing on January 10 for consideration of affidavits of corporations and Delhi Police.

"It is however made clear that just because this Court has stayed operation of clause 2b of guidelines, none of the petitioners or the therapists will carry out any activity which is not expected," the Court said.

One of the petitions filed by five professional therapists, through Advocate Srilina Roy, states that the police has no legal right to prevent a health spa being operated by anyone, even if the therapy is done by persons of one sex to those belonging to the opposite sex.

Another petition moved by Association of Wellness Ayurveda & Spa states that the petitioner Association was aggrieved by the arbitrary, discriminatory, unlawful and discriminatory treatment of the concerned authorities towards spa centres across the national capital.

The plea also submits that cross gender treatment has been part of traditional massage practices along with other medical treatments like psychotherapy and substances abuse treatment where also cross gender proximity is prevalent.

Case Title: Association of Wellness Ayurveda & Spa v. GNCTD & Ors.

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