The Bombay High Court on Friday quashed and set aside a condition in two government resolutions issued by the State of Maharashtra barring actors above the age of 65 years from remaining present on Film/TV sets calling it discriminatory. The GRs were issued after a nationwide lockdown was imposed to combat the threat of Covdi-19.
Division bench of Justice SJ Kathawalla and Justice RI Chagla were hearing writ petitions filed by actor Pramod Pandey who has been acting in TV and films for the last 40 years and Indian Motion Pictures' Producers' Association challenging the said condition in Government Resolution issued by the State on May 30, 2020 and the said condition continued in GR dated June 23, 2020.
Previously, Court had directed the State to reply to specific questions posed by the bench and submit an affidavit accordingly. Court had said-
"The learned Advocate for the State had to be reminded that the actors performing small roles are required to go to the studios and request for work to enable them to have their two meals, and no Producer/Director is going to shoot their role via Facetime, Zoom, Skype etc."
The GR dated May 30, 2020 as explained or clarified by the GR of June 23, 2020, has been issued to permit the reopening of the film and television industry pursuant to representations made to the Government of Maharashtra from various organizations in this field. The Impugned Condition is one of the several conditions contained in the said GRs, subject to which the Government of Maharashtra has permitted such shootings as well as pre-production and post-production works.
Advocate Ashok Saraogi appeared on behalf of the petitioners and argued that the GRs are discriminatory, arbitrary and violative of Article 14 of the Constitution of India, because at the time the GRs were issued, the Central Government as well as the Government of Maharashtra had relaxed the general prohibition on movement of persons above the age of 65 years, and made it advisory in nature and the prohibition under general restrictions was no longer in force.
As against this, a prohibition on the movement of persons above the age of 65 years continued to operate in the film and television industry.The Impugned Condition is an unreasonable restriction on the petitioners' right to carry on their trade and occupation, it also deprives the petitioner of his right to earn a livelihood with dignity., Saraogi contended.
Saraogi also submitted that the general prohibition on movement of persons above the age of 65 years is now relaxed and is only advisory in nature. There is no justification for the said prohibition by way of the impugned condition being applied only in respect of the petitioners (actors/film crew) persons whose occupation and trade is in relation to the film or television industry.
Government Pleader Poornima Kantharia submitted that the Government of Maharashtra's resolutions are based on Central Government orders passed under the Disaster Management Act. The impugned condition is reasonable and is subject to future relaxation. It was imposed in the interest of health and safety of vulnerable classes of persons. The restrictions are in the interest of persons with low or weak immunity as the disease is easily communicable, Kantharia said.
Moreover, the restriction on persons who are 65 years of age and above is consistent across various Central and State Government orders restricting businesses and movement during lockdown. The restriction is not absolute as persons above the age of 65 years may work from home, over video conferencing, email, video sharing etc, Kantharia told the Court.
Amicus Curiae and Senior Advocate Sharan Jagtiani stated that if the State of Maharashtra was to expressly clarify that the impugned condition is to be read as an advisory and not an obligatory requirement, it would undoubtedly resolve the challenge in these petitions.
However, if one is to go by the language of the Impugned Condition, it appears that the same is mandatory or obligatory and is not worded as an advisory. In fact, the reply filed by the State of Maharashtra proceeds on this basis as well, but states that if there is a relaxation in the generally applicable guidelines by the MHA or the State of Maharashtra, then a relaxation of the Impugned Condition would also be considered, Jagtiani said.
Importantly, Jagtiani clarified that while the order issued by the MHA and State of Maharashtra on May 30, 2020 and May 31, 2020 respectively, the general guideline pertaining to restriction/ prohibition on the movement of persons above 65 years of age that operated from about 4th May 2020 to 31st May 2020, was relaxed and made an advisory.
In contrast, the impugned condition issued on May 30, 2020 and clarified on June 23, 2020 reads as an obligatory requirement, prohibiting all persons above 65 years of age from working on a film set as cast or crew. In other words, in respect of the film industry, the stipulation restraining persons from working as cast or crew at a film set based on age above 65 years, is mandatory whereas persons above 65 years of age who are engaged or occupied or working in other essential and non-essential business activities and sectors that are allowed to operate, may attend their workplace, since the general guideline or Order applicable to them now reads only as an advisory, Jagtiani told the bench.
He relied on following decisions of the Supreme Court in support of his arguments:
(i) Sube Singh & Ors. vs. State of Haryana & Ors
(ii) Kailash Chand Sharma vs. State of Rajasthan & Ors
(iii) Om Kumar & Ors. vs. Union of India
(iv) Indian Express Newspapers vs. Union of India
Thus, after examining all submissions and phases of lockdown and conditions imposed therein, the bench observed-
"In our view, the Impugned Condition is not based on any intelligible differentia between the two identical classes of persons above the age of 65 years as set out above. Whilst there may be a nexus with the object sought to be achieved, i.e. to protect vulnerable people from the Covid-19 pandemic, there is no intelligible differentia between persons who are 65 years of age or above in the cast/crew of films and TV shootings on the one hand and persons who are 65 years of age or above in other sectors and services, permitted under prevailing lockdown orders."
Also, the bench noted-
"There is discrimination in the disparate treatment of persons who are 65 years of age or above in the film or television industry and in the other permitted sectors and permitted activities. The same is not based on any intelligible differentia and no explanation to this effect is to be found in the Reply of the State Government. The Impugned Condition therefore cannot be sustained in view of the well settled principles enunciated under Article 14 of the Constitution of India.
We are of the view that the Impugned Condition that seeks to apply to persons above the age of 65 who are engaged in only one occupation or trade but not to others of the same class, cannot be said to be a reasonable restriction."
Thus, the impugned condition in the two GRs were quashed and set aside. However, Court clarified that the advisory applicable to all persons above the age of 65 years, would also apply to persons associated with the film/television/OTT industry and the same must be taken note of by the persons to whom it applies.
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