The Supreme Court upheld the constitutionality of ‘The Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order 2005’ issued under the Karantaka Police Act, meant to regulate and license places of public entertainment like live band restaurants, discotheques, cabarets halls etc. This was done while dismissing the appeal made by Karnataka Live Band Restaurants Association.
In an earlier round of litigation, the Supreme Court had held that a similar order issued in 1989, i.e Licensing and Controlling of Places of Public Amusements (Bangalore City) Order, 1989", was not applicable to live band restaurants, discotheques etc. This was done accepting the contention of live band restaurants that they did not qualify as a place of public amusement, and were at best a place of public entertainment. In that backdrop, the 2005 Order was issued, covering places of public entertainment .
The Order was challenged by the Live Band Restaurants as arbitrary, unreasonable, harsh and unworkable, resulting in violation of fundamental right to freedom of trade and business under Article 19(1)(g) of the Constitution of India. It was also contended that the Order resulted in unreasonable classification and discrimination, resulting in infringement of right to equality under Article 14 of the Constitution of India.
The Bench consisting of Justice R.K Agrawal and Justice A.M Sapre did not accept their contention. It was observed that :-
It is the prime duty, rather statutory duty, of the Police personal/administration of every State to maintain and give precedence to the safety and the morality of the people and the State. Indeed, both are important and lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The Act and the Order 2005 are enacted keeping in view the safety and the morality of the people at large.
The Court said that the issue needs to be looked in the light of two doctrines :- “Salus Populi Supremo Lex” which means the safety of the people is the supreme law and the other "Salus republicae supremo lex" which means safety of the State is the supreme law. It was observed that reasonableness cannot be tested on the basis of any abstract notion, and had to be applied on a case to case basis. It was observed, ‘The test of reasonableness is required to be viewed in the context of the issues, which faced the impugned legislature. In construction of such laws and while judging their validity, the Court has to approach the issue from the point of furthering the social interest, moral and material progress of the community as a whole.’
The Court held that the conditions in the order were reasonable restrictions in the interests of public safety, welfare of society and morality. The Court took judicial notice of the recent incident in Mumbai where a restaurant-pub caught fire resulting in loss of lives due to breach of security compliances, and also the Uphaar Cinema fire tragedy, to emphasize the need for regulation and control of places of public entertainment.
The Court also rejected the appellant’s contention that there was discriminatory classification. The Order had exempted places which are conducting Yakshagana, Bayalata (field drama) or Bharat Natyam, folk Art, Music recital, vocal or instrumental like Veena or Mrudana etc. This exemption, according to the appellant, was discriminatory. The Court held that the classification was reasonable, observing as follows :-
There appears reasonable distinction between the two performances because as rightly urged by the respondent, the performances specified in the proviso, are not usually performed in restaurants but are performed in theaters or/and auditoriums as one time performance by the artists whereas the three performing items namely - Cabaret, Discotheque and Live Band Music are the activities which are regularly performed and attract more crowd and lastly the items specified in proviso even if performed in restaurants does not involve any kind of indecency or obscenity whereas other three performances may unless controlled.
The Court also noted that there were no provisions in the Order to regulate noise pollution, and directed the authorities to deal with the same. The authorities were also directed to ensure measures to check fire safety compliances.