2018 (1) TMI 1521 - SC - Indian Laws

Requirement of licence for displaying the Live Band Music in their restaurants - Clause 3 of the Order 2005 - Discrimination or not - principles of equality - Salus Populi Supremo Lex which means the safety of the people is the supreme law - Salus republicae supremo lex which means safety of the State is the supreme law. HELD 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 - whenever the impugned action is challenged on the touchstone of Articles 14 and 19(1)(g) of the Constitution we have to keep in mind the well-settled principle of law laid down by this Court wherein this Court has examined lucidly and succinctly the scope and ambit of Articles 14 and 19(1)(g) - Similarly so far as Article 19(1)(g) of the Constitution is concerned this Article accords fundamental rights to carry on any profession occupation trade or business. However the right guaranteed under Clause (g) is made subject to imposition of appropriate reasonable restrictions by the State in the interest of general public under Clause (6). As and when the question arises as to whether a particular restriction imposed by law under Clause (6) is reasonable or not such question is left for the Court to decide. 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. Likewise while examining such question the Court cannot proceed on a general notion of what is reasonable in its abstract form nor the Court can proceed to decide such question from the point of view of the person on whom such restriction is imposed. What is therefore required to be decided in such case is whether the restrictions imposed are reasonable in the interest of general public or not. If the Commissioner finds that the performances specified in proviso may also be brought within the ambit of the Order 2005 then he is always at liberty to include any such performance in Clause 3. The Order 2005 does not suffer from any arbitrariness or unreasonableness and nor it infringes the fundamental right of the Appellant guaranteed Under Article 19 (1)(g) of the Constitution of India.

Summary

Issues Involved:
1. Legality and validity of the Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005.
2. Whether the Order 2005 violates Article 14 of the Constitution.
3. Whether the Order 2005 infringes the fundamental right guaranteed under Article 19(1)(g) of the Constitution.

Issue-Wise Detailed Analysis:

1. Legality and Validity of the Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005
The Supreme Court examined the legality and validity of the Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005 (Order 2005) issued by the Commissioner of Police under Section 31 of the Karnataka Police Act, 1963. The Court noted that the Commissioner of Police has the statutory power to issue such orders under Clauses (w) and (x) of Section 31, which deal with licensing or controlling places of public amusement or entertainment and regulating performances for public amusement. The Court held that the Order 2005 was issued to regulate, control, and supervise activities such as Live Band Music, cabaret dance, and discotheque in restaurants, which fall under the definition of "Public Entertainment" as per Section 2(15) of the Act. The Court found no fault with the source of power of the Commissioner of Police to issue the Order 2005.

2. Whether the Order 2005 Violates Article 14 of the Constitution
The Appellant-Association contended that the Order 2005 violates Article 14 of the Constitution by creating discrimination between similar restaurants. The Court referred to the principles laid down in Budhan Choudhary v. State of Bihar and Ram Krishna Dalmia v. S.R. Tendulkar, which state that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. The Court found that the Order 2005 does not create any discrimination between two alike entities. The restaurants displaying Live Band Music, cabaret, or discotheque are required to obtain a license under Clause 3 of the Order 2005. The Court also addressed the proviso to Clause 3, which excludes certain performances like Yakshagana, Bharat Natyam, and folk art from the licensing requirement. The Court held that there is a reasonable distinction between these performances and the activities regulated by the Order 2005, as the former are usually performed in theaters or auditoriums and do not involve indecency or obscenity. Therefore, the Court concluded that the Order 2005 does not violate Article 14.

3. Whether the Order 2005 Infringes the Fundamental Right Guaranteed Under Article 19(1)(g) of the Constitution
The Appellant-Association argued that the Order 2005 infringes the fundamental right guaranteed under Article 19(1)(g) of the Constitution, which allows citizens to practice any profession or carry on any occupation, trade, or business. The Court noted that this right is subject to reasonable restrictions in the interest of the general public under Clause (6) of Article 19. The Court examined whether the conditions specified in the Order 2005 are reasonable and found that they are well-conceived in public interest. The conditions ensure the safety, welfare, and morality of the general public who visit such restaurants. The Court held that making it obligatory to obtain a license to display Live Band Music, cabaret, or discotheque is a reasonable restriction on the fundamental right to carry on the business of running restaurants. The Court emphasized that public interest and safety override individual rights, and those unable to comply with the conditions may choose not to display such performances. Therefore, the Court concluded that the Order 2005 does not infringe the fundamental right under Article 19(1)(g).

Conclusion
The Supreme Court upheld the constitutionality and legality of the Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005. The Court directed the Commissioner of Police to ensure strict compliance with the license conditions and take necessary measures to control noise pollution and ensure fire safety in the licensed premises. The appeal was dismissed.