Bombay HC quashes "unreasonable" bar on entry of persons over 65 years into film/TV sets amid COVID-19

The Bombay High Court on Friday quashed two Maharashtra Government Resolutions barring the presence of senior citizens on film/TV sets and at production sites amid the COVID-19 pandemic (Pramod Pandey v. State of Maharashtra)..“If there is no general prohibition on persons above the age of 65 years from working or practicing their trade in those sectors and businesses which are allowed to operate, an age based prohibition in only one industry, namely the film industry / television / OTT, without any material to support its differential classification, would constitute an unreasonable restriction.”Bombay High Court.A Bench of Justices SJ Kathawalla and RI Chagla passed the Order, disposing of two petitions..The first petition was moved by Pramod Pandey, a 70-year-old actor, and the Indian Motion Pictures Producers Association presented the second. .The petitions challenged a Government Resolution issued on May 30 and a clarificatory Resolution issued in June barring persons above the age of 65 years from being present at the shooting of films/television series / Over The Top Media in view of the COVID-19 pandemic..COVID-19 lockdown: How is a fit person above 65 years to lead a dignified life if not allowed to go out to earn a living? Bombay HC to State.The Resolutions had announced the reopening of the film and television industry for business, subject to conditions. The embargo on senior citizens from entering film/TV shooting venues was one of the conditions laid down, presumably in an effort to shield them from a possible coronavirus infection..Such a prohibition was not issued to persons aged above 65 years engaged in other trades, though advisories remained in place even after the lifting of the pandemic lockdown..The petitioners assailed the prohibition on elderly persons on film sets for:Its tendency to discriminate between the ordinary movement of senior citizens and their movement for the purpose of participating in activities relating to film and television. This was challenged under Article 14 of the ConstitutionIts restriction on the right to trade and occupation with dignity. This was grounded in the freedom and life and liberty guarantees of Article 19 and Article 21 of the Constitution..Agreeing with the petitioners the Court’s amicus curiae Senior Advocate Sharan H Jagtiani submitted that there was merit in a challenge under Article 14 both for discrimination and arbitrary non-application of mind. He posited that the Court could also consider the challenge under Article 19 and Article 21..Allowing the challenge, the Court found that the Government Resolutions had failed to satisfy the requirements of Article 14 of the Constitution and were not based on any intelligible differentia..The Court reasoned:."In our view, 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.".The Court further found the Resolutions as demonstrative of the State’s non-application of mind, given the MHA’s and the State Government’s own relaxations of the bar on the general movement of persons above 65 years of age..The Court also accepted the challenge preferred under Articles 19 and 21 of the Constitution..It adjudged the conditions in the Resolutions as denying the right of persons aged 65 and above to earn their livelihood from the film industry with dignity. .The restriction in relation to a specific sector, further, could not constitute a valid "procedure established by law" as required by Article 21 of the Constitution, the Court went on to state..Accepting the challenge to Article 19, the Court found that the Resolutions are unsupported by any material. It was also pointed out that when the State's action affects rights under Article 19(1)(g), the onus was on the State to prove that the same was reasonable. The Court observed,.“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. It would be a different matter if for policy and health considerations, the film industry would not be allowed to operate or open for filming and other related activities. However, having permitted the film industry to operate and open, subject to various conditions, the introduction of the Impugned Condition that places an absolute restriction on persons above the age of 65 years from carrying out their occupation and trade, whilst not similarly restricting persons of the same age who are engaged in other trades or occupations that are permitted to operate and open, would amount to an unreasonable restriction and hence a violation of their right under Article 19(1)(g) of the Constitution.”.In so holding , the Court quashed the bar on entry of persons above the age of 65 years to venues associated with the visual media industry..The advisories, however, would continue to apply, the Court noted by way of a clarification..Advocate Ashok Saraogi argued for the petitioner and Government Pleader Purnima H Kantharia represented the State..Senior Advocate Jagtiani was assisted by Advocates Shweta Sangtani and Priyank Kapadia..Read the Order here:

Bombay HC quashes "unreasonable" bar on entry of persons over 65 years into film/TV sets amid COVID-19

Lydia Suzanne Thomas

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