In a relief to elderly actors and entertainment crew, the Bombay High Court on August 7 observed that the state’s ban on cast and crew members above 65 years of age from attending film sets during the Covid-19 pandemic is discriminatory. The Bombay High Court quashed and set aside conditions imposed by the Maharashtra government through two Government Resolutions (GR), which barred any cast or crew members above 65 years at the shooting site of fiction or non-fiction programming during a pandemic.
The court also clarified that all advisories issued by the governments in view of the Covid-19 pandemic for persons above 65 years of age, will be applicable to elderly cast or crew members visiting shooting sets.
A division bench on Friday passed ruling on the pleas challenging the restrictions. Along with actor Pramod Pandey (69), Indian Motion Pictures Producers Association (IMPPA) through advocate Ashok Saraogi also approached the HC seeking to quash and set aside conditions imposed by the government on May 30.
In its 16-page set of guidelines for producers to follow as and when they begin the film and television production, the government had said that while actors above 65 will not be permitted on sets, no audience will be allowed for fiction or non-fiction programming.
The bench has also directed the state government to file an affidavit explaining the “data, statistics, or reports” for issuing the prohibitory orders.
Earlier the Court had also enquired from the state government whether these restrictions, as per GRs, dated May 30 and June 23, were prohibitory/mandatory or advisory/recommendatory.
On July 29, Purnima H Kantharia, the lawyer appearing for the state government submitted that the guidelines issued by the state government were not discriminatory, because there were similar guidelines issued by the Central and state governments which restrained elderly people from stepping out except under exceptional circumstances. The guidelines for artistes were based on directives issued by the Centre in view of the Covid-19 pandemic and though they read as prohibition, no coercive action will be taken against elderly artists. And had told the High Court that its decision to bar elderly cast and crew was not permanent and may change as per new unlock guidelines post-July 31.
The bench had appointed senior counsel Sharan Jagtiani as amicus curiae to assist Court with this case. Jagtiani submitted that the state had failed to provide any legal or logical reasoning behind imposing such restrictions only on artistes. He had said that the restriction on artistes was arbitrary. He further added that the Centre’s guidelines were advisory and not mandatory, however same relaxations were not contained in the state’s May 30 order.
After hearing submissions, the bench held in its judgment that the restriction imposed through the said GRs did not show any application of mind. The court found that the conditions failed to satisfy requirements of Article 14 (Right to Equality) of the Constitution and observed restrictions on elderly persons were uniform, regardless of sector or activity prior to May 30 GR.
Justice Kathawalla observed, “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.”
In view of this, the bench said, “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.”
The bench also maintained that barring such artistes from working was in breach of their fundamental right to earn a livelihood with dignity and to practice their trade as guaranteed by Article 19 of the Constitution.
"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," the bench said.
"However, having permitted the film industry to open and operate, subject to conditions, the introduction of the 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," it said.
The court quashed and set aside the restriction imposed through the said GRs on permitting artistes above 65 years of age to resume work. It clarified that all other advisories issued by governments for persons above 65 years will be applicable to the elderly cast and crew members from film, television and digital programming and disposed of the plea.