To Perform Or Not To Perform? : How Delhi's New 'Performance' Licencing Regime Threatens The Fundamental Rights Of Artists

A never-ending socio-political and cultural evolution of art forms and expression can be witnessed at Delhi's Mandi House. The doyens of modern Indian Theatre - Ebrahim Alkazi and Habib Tanvir through their pathbreaking plays like Tughlaq (historical drama), Charandas Chor (social satire on a truthful thief), and Jis Lahore Ni Dekhya (communal theme of India's Partition) shaped thought-provoking dialogue with the audiences. In the present day scenario, the creation of continuous artistic communication on themes of equality, social injustice, and human rights is reflected in famous plays like Andha Yug (aftermath of Mahabharat); Court Martial(Justice & Humanism); Final Solutions, Ambedkar and Gandhi (Caste System and inequality); Aruna's Story (life and legal journey of the Aruna Shanbaug Case). For decades, Delhi, especially Mandi House has pushed the cause of social expression and dialogue on human rights.

In an interesting development, a recent word has been travelling across the theatre groups and performers since July 2024 regarding a mandatory 'Police Clearance Certificate' (PCC). This PCC is required by performers to get a licence or permission to perform in auditoriums or open spaces. This has posed the infamous question at the existential fate of Mandi House's Art Culture and Artists- 'To Be Or Not To Be?'

The artists or performers are required to submit relevant documents along with the PCC on the online 'Unified' Portal of the Delhi Municipal Corporation (MCD) in order to obtained a 'Performance Licence' It is crucial to point out that this new 'unified portal' was earlier maintained by DMC only for processing the online applications for licensing of eating/lodging & boarding establishments in Delhi. Prior to this, the Delhi Police would grant a simple licence without any such PCC on a formal fee of Rs.20/- only.

However, the Delhi Lieutenant Governor (LG) VK Saxena in his official launch visit of the New Unified Portal on July 8 clarified that the DMC portal for licensing of eating/lodging has been unified with the 'Public Amusement Portal' with the help of the National Informatics Centre and the licensing unit of Delhi Police. The said unification and the launch of 'Public Amusement Licensing' would allow performers at any public amusement and owners of any public amusement place like parks, auditoriums, video game parlours etc to submit their licence permission at once. It is within this application process that the PCC is also mandated for each performance done by a performer.

What has raised eyebrows is the sudden introduction of these licensing rules on the artists and performers without much clarity on the official date of implementation and the intent behind this new policy per se. Rather, the unified portal seeking to equate artists and performers with licensees of eateries and lodging has attracted much anxiety and criticism from the Theatre Stalwarts of Mandi House.

Does PCC Have A Regulatory Backing?

An elaborative mention of PCC for performers is found in Draft Regulations for Licensing Places of Public Amusement and Public Amusement Performances(other than Cinema), 2023. These Regulations were notified by the Ministry of Home Affairs on October 31, 2023, to be framed for licensing of (1) Places of Public Amusement; (2) Performances for Public Amusement. However, the notification did not specify any date for implementation of the regulations. Regulation 1.3 states “ These shall come into force from the date of their publication in the Gazette of India.”

Pertinently, the application form at the portal for performers terms the permission to perform as a 'Performance licence', citing it to be under the Regulations for Licensing Places of Public Amusement and Public Amusement Performances(other than Cinema), 2023 (2023 Regulations). But it must be highlighted that, neither the official website of the Ministry of Home Affairs nor the site of MCD releases any official gazetted notification specifying that the draft regulations have been formally enacted.

This raises significant questions that may have a lasting impact on the fate of Delhi's theatre and performance culture -

1. Does the new inclusion of the 'Performance licence' and PCC on the MCD portal mean that the Draft Regulations of 2023 have come into effect already?
2. If they have come into effect, why should it be a cause of worry for Delhi's artists?
3. If they have not been officially notified to come into effect, then would it be legally valid for the Police officials to issue to a PCC? Would it be reasonable for MCD to charge a fee for a 'Performance licence' which has not got any statutory backing yet?

For us to get a clear answer to these questions, its crucial to first understand to legal outline of the Draft Regulations of 2023.

1. Key Facets Of 2023 Regulations : Understanding The 'Script'

Under these draft regulations, the expression “ Place of Public Amusement' is described to mean a place as defined under S. 2(k) of the Delhi Police Act 1978. This includes a venue open to public enjoyment of activities such as music, singing, dancing, games, and other forms of amusement/recreation on a payment basis. The term 'Performance' is defined as “any activities of music, singing, dancing, or game or any other amusement, diversion or recreation other than cinema” under Regulation 2(15).

However, the Regulation does not specify the term 'Public Amusement' anywhere. Seeing the nature of the above two expressions, it is possible to imply that 'Public Amusement' refers to all the artistic and entertainment activities which are at the disposal of the public to enjoy and patronise in exchange of monetary payment.

Under Chapter III , Regulation 4 provides the procedure to obtain a 'performance licence'. Regulation 4(3)(a) specifies the mandatory documents required for obtaining a licence at 'Permanent Place of public amusement'. Such a permanent place of public amusement includes any building or permanent structure used for performance.

Within these documents, subclause (vi) states- In case the applicant is resident of Delhi, valid Police Clearance Certificate (PCC) issued by Delhi Police through PCC portal, in case applicant is a resident of outside Delhi, then Police Clearance Certificate (PCC) issued by concerned state/UT authority.

Apart from PCC, a booking slip of the place, identity proof, proof of address, authorisation by the Organiser of the performance and an undertaking under the 2023 Regulations have to be submitted for getting a final Performance licence.

The regulations derive their authority from its parent act- the Delhi Police Act 1978 (DP Act). The main provision is S.28 of the DP Act, which provides powers to the Delhi Police to make regulations for regulating 'traffic and for the preservation of order in public places'. The purposive declaration of the Regulations clearly state its creation in view of the powers of the Police under S.28(1)(x) and S. 28(1)(y) of the DP Act.

2. How PCC & Performance Licensing Play The Villain For Theatre Performers And Artists?

The PCC and provisions relating to it under the 2023 Regulations strike at the heart of artistic freedom of theatre performers and other diverse artists in Delhi. The application of the PCC is violative of Article 19 constitution. .

We argue that PCC and related provisions for obtaining the Performance licence violate the freedom of speech and expression of artists under Article 19(1)(a), right to practise a profession or carrying out occupation under Article 19(1)(g) and grants excess, vague and arbitrary powers to Police Authorities.

(A) Scope of Artistic Freedom under Article 19

The Freedom of Speech and Expression as founded under Article 19(1)(a) of the constitution forms the grundnorm for any artistic expression in the Country. Perhaps, the Supreme Court in the landmark case of Ranjit D. Udeshi v. State of Maharashtra observed the right to freedom of expression upon which the Indian democracy rests, was intended for “the expression of free opinions to change political or social conditions. Or for the advancement of human knowledge”

Former Supreme Court Judge, Justice SK Kaul in his Delhi High Court decision relating to the challenge to charges of obscenity by Painter MF Hussain for the renowned 'Bharat Mata' painting observed that the right to freedom of speech and expression “helps to cultivate the virtue of tolerance”. Dwelling further on the need and significance of tolerance in the society towards artistic work, Justice Kaul opined that the feeling of discomfort or an expression of an unpopular point of view cannot be the basis to restrict artistic freedom under the garb of 'obscenity'.

However, Article 19(1)(g) can also be seen as a crucial extension to artistic freedoms when it comes to financial security and the freedom to practise the profession of passion. Article 19(1)(g) gives the freedom of earning one's livelihood through carrying on any profession, occupation, trade or business. The Apex Court in Sodan Singh v. New Delhi Municipal Committee clarified that profession entails any “occupation carried on by a person by virtue of his personal and specialised qualifications, training or skill. The word 'occupation' has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged”.

However, these fundamental rights are not absolute in nature and come with a set of reasonable restrictions. Article 19(2) sets out the reasonable restrictions on the freedom of speech and expression. It curtails artistic freedom to express on grounds of 'reasonable restrictions which are in the interest of sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Article 19(6) provides the limitation to artists' right to carry out profession or occupation. The Statement can make laws on reasonable restrictions to the right if they are in public interest. The right can be restricted by existing laws or any new law made by the state. These limits can include setting qualifications for jobs or allowing the government to run businesses, even if it means citizens can't participate in those areas.

Notably the landmark decision of the Top Court in Chintaman Rao v. The State of Madhya Pradesh held that the reasonable restriction means a limitation imposed with 'intelligent care and deliberation' which includes the 'choice of a course which reason dictates'. In State of Madras v. V.G. Row the Court that that when evaluating the reasonability of a restriction, emphasis should be “not only factors such as the duration and the extent of the restrictions, but

also the circumstances under which and the manner in which their imposition has been authorised”. It further stressed that in testing such reasonableness, there cannot be room for an 'abstract standard' or a 'general pattern of reasonableness'.

(B) Provisions Of 2023 Regulations Do Not Fall Under 'Reasonable Restrictions'; Hit By The Doctrine Of 'Void For Vagueness'

A deeper analysis of the PCC and other provisions underlining the conditions for the grant of a performance licence, make out a case of fundamental violations. This is essentially due to the provisions of the regulations being vague to the extent of being void. Since the provisions are vague and not adequately certain in defining the procedure and limits of the powers of the police, they fail to lay down 'reasonable restrictions' to curb artistic freedoms.

Put simply, the doctrine of 'Void for Vagueness' means that any law or statute would be considered unlawful if it is unclear or uncertain in its phrasing.

(C) Indian & American Jurisprudence On The Doctrine Of 'Void For Vagueness'

Championing the right of expression as intrinsic to the democratic principles, the Supreme Courts of India and USA have shed much light on the issue of when can a law restricting the freedom to speech and expression be considered unlawful due to its vagueness. The Courts have also flagged the perils of allowing vague laws and how it affects the liberties of the individual.

The Doctrine of Vagueness was developed by the Supreme Court of USA in defining the basic principles of 'due process'. In Grayned v. City of Rockford[i] the anti-noise ordinance passed by the State of Illinois was under challenge. While upholding the ordinance, the Supreme Court of USA observed that 'vague laws offend several important values'. These were (1) they lack the opportunity to give an innocent man a fair warning; (2) unclear laws would delegate 'basic policy matters to policemen, judges, and juries for resolution on ad hoc and subjective basis' which invites dangers of arbitrary and discriminatory exercise of powers; (3) Uncertain meanings in a law may lead to citizens blurring the boundaries between lawful and unlawful zones of activities.

The American Supreme Court in Reno, Attorney General of the United States v. American Civil Liberties Union[ii] interestingly assessed the provisions of the 'Communications Decency Act 1996' which were brought into protect minors from harmful and objectionable material on the internet. Under S. 233 (d) of the Act any person who exposes a person below the age of 18 years , any content which is 'patently offensive' would be penalised.

The Supreme Court struck down the provision declaring it to be lacking precision as to what is meant by 'patently offensive'. Because of the lack of clarity of the term, the provision brings under its garb a blanket censor of large extent of content/non-pornographic material which is consumable by adults. Thus, in the attempt to protect the minors, it ended up violating the fundamental rights of the adults.

In the Indian Jurisprudence, the expansion and acceptance of the doctrine of vagueness could be seen through 4 phases -

(1) In State of Madhya Pradesh v. Baldeo Prasad, the Court for the first time (though not in express terms) applied the doctrine of vagueness to hold that an non-exhaustive definition of 'goonda' under S. 4A of the Central Provinces and Berar Goondas Act X of 1946 made the provision constitutionally invalid. S.4A empowered the District Magistrate to recommend to the State Government the removal of a 'Goonda' from the District in order to maintain peace and tranquillity of the area.

The Court observed that the definition of 'Goonda' under the act was 'all inclusive', S.2 of the Act stated that a Goonda is anyone who is a 'hooligan, rough, or a vagabond' and includes anyone dangerous to the public peace or tranquillity. Thus it was held that not only was the definition of Goonda unhelpful in understanding the scope of S.4A, the latter provision itself laid down no tests on the basis of which the District Magistrate could conclude who qualified as a Goonda. S.4A was struck down as violative of Article 19(1)(d) and (e)- Right to move freely throughout the Indian Territory or reside in any part of it.

“It is well known that the relevant provisions of the Act are initially put in motion against a person at a lower level than the District Magistrate, and so it is always necessary that sufficient safeguards should be provided by the Act to protect the fundamental rights of innocent citizens and to save them from unnecessary harassment. That is why we think the definition of the word " goonda " should have given necessary assistance to the District Magistrate in deciding whether a particular citizen falls under the category of goonda or not.”

(2) The Doctrine of Void for Vagueness found express and detailed mention in the Landmark case K.A. Abbas v. Union of India. The Supreme Court here was dealing with the constitutional validity of the censorship of the Petitioner's documentary film ' A Tale of Four Cities' under S. 5B the Cinematograph Act, 1952 and the Union's direction to grant a 'U' certificate upon the condition that certain red-light area scenes be cut from the film.

The petitioner's argued that the censorship by the Union was violative of his freedom of speech and expression. It was contended that Pre-censorship powers of the Union under S. 5B were vague and therefore unconstitutional.

The Court upheld the pre-censorship powers of the Union under S.5B noting that S.5B(1) gives power the certifying authority to not allow the exhibition of the film if it is hit by the reasonable restrictions set out in Article 19(2) of the Constitution. It was observed that Sub-clause 2 of S. 5B allowed the Union to issue general principles to the certifying authority to guide them on aspects of certification. Referring to the general principles which the Union had issued, the Court held that the General Principles gave ample clarity and direction to the certifying authority on what could be censored or not.

Expressions like 'Seduction', 'immoral traffic in women', 'soliciting prostitution', 'traffic and use of drugs' etc as listed in the General Principles were definite and precise for the understanding of the average man. Thus, S.5B was not considered to be hit by the doctrine of vagueness.

However, the Court also observed that where a law is framed in such a way that no certainty on the grant of freedoms and shows a probability of misuse at the hands of those applying the law, could not be considered as a law protected under the defence of reasonable restrictions. In doing so, the Court relied upon the decision in Baldeo Prasad.

“Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act.

This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases.”

(3) In Kartar Singh v. State of Punjab, the Supreme Court while upholding the constitutional validity of the Terrorist and Disruptive Activities (Prevention) Act (TADA), adopts the test of doctrine of vagueness as observed in the US decision of Grayned (supra).

(4) In the landmark case of Shreya Singhal v. Union of India the Apex Court again applied the doctrine of void for vagueness to strike down S.66A of the Information Technology Act 2000 as being violative of Article 19(1)(a) and not covered under Article 19(2).

S.66A penalised any message through computer resource/ communication device that is grossly offensive, menacing or false and communicated persistently for purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.

The Court held that the terms 'grossly offensive', 'menacing', 'criminal intimidation', 'annoyance', 'persistently' used under S.66A lacked a precise definition. The vagueness of the provision was three fold (a) while the provisions under IPC such as S.294, 510, 268 provided closely defined contours of offences, S.66A was completely open ended and did not state if the above mentioned terms were to be read as given under the IPC;

(b) when put in contrast with other provisions of the IT Act like S.66 (Computer related offences) and S. 66B- S.67B (various other offences), S.66A was absent of clear definitions to ascertain the mens rea of the offence; and (c) the prospective offender of S.66A and the enforcement authorities have 'absolutely no manageable standard' by which a person may be booked under the provision.

The bench observed how the vagueness and unclear terms of the provision made room for unending subjectivity in interpreting the law.

“75. Incidentally, none of the expressions used in Section 66A are defined. Even “criminal intimidation” is not defined – and the definition clause of the Information Technology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act.

76. Quite apart from this, as has been pointed out above, every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression “persistently” is completely imprecise – suppose a message is sent thrice, can it be said that it was sent “persistently”? Does a message have to be sent (say) at least eight times, before it can be said that such message is “persistently” sent? There is no demarcating line conveyed by any of these expressions – and that is what renders the Section unconstitutionally vague.”

(d) Applying The Doctrine To 2023 Regulations - The Anti-Climax!

The provision prescribing the need for PCC clearly lacks guidelines for the Police authorities as to on what factors or basis would the 'clearance' be given. It leaves room for ample ambiguity on whether the PCC mentioned in the Regulations is similar to police verifications done during passport and visa related procurements or does it have a different standard of assessment for the Police officials when evaluating a clearance for a specific performance.

Notably, Just as in the case of Shrey Singhal, here too, the definition clause under Regulation 2 remains silent on the determinants of a PCC.The Delhi Police Act, which is the parent Act of the 2023 regulations also fails to define PCC. Interestingly, the definition clause of the Regulations defines a 'Suitable Person' who may be granted a performance licence, as anyone who clears the PCC by the Delhi Police or Police of the State s/he belongs to; is competent to enter a contract and is ' otherwise not an unsuitable person' having the capacity to conduct performance of public amusement.

The Regulation 4(3)(a) which mentioned the requirement of a PCC for the grant of performance licence at a permanent place also does not mandate the police officials to give a reason in writing for the rejection of a PCC. Looking from a broader lens, the PCC has the potential of giving the police officials unbridled power to allow or restrict a performer from performing at auditoriums.

In terms of the general conditions for the grant of the performance licence under chapter IV (Fees, General Conditions and Exemptions), the regulations state that the licensing authority has the right to refuse/ renew/ cancel a licence as per S. 28(1)(x) and (y) of the Delhi Police Act. (Regulation 5(1))

It further states that any person holding a performance licence cannot “promote impropriety of language, indecency of dress, dance, movement or gesture, offensive personation or representation, likely to excite feeling of sedition or discontent, likely to cause riot or breach of peace, to promote or excite hostile feelings between different classes, religion or any individual, dangerous exhibition or display of a performance or game, with wild beasts, except in so far as it is an item of performance in a circus which shall be governed by regulations. Performance or game involving risk, damage or danger to the audience or public or any performance which does not cover under the Licence shall not be allowed.” (Regulation 5(3))

This has to be analysed at two levels : (1) the main test applied for refusal/ cancellation of a Performance Licence is as per the test laid down under S.28(1)(y) of the Delhi Police Act. The said provision uses the phrase “interest of public order, decency or morality or in the interest of the general public” as grounds for controlling or licensing the public performances by the Police.

Clearly, the test under S.28(1)(y) is the one employed under article 19(2) and (6) of reasonable restrictions.

However, the determinants of these reasonable restrictions can be found to be guided under Regulation 5(3). It is a determinant or guide of indicative factors to cancel/ refuse the licence because it expressly lays down the conditions which the licence holder shall adhere to while performing, which is subject to evaluation of the grant in the larger scheme of things.

Turning to these determinants/conditions for allowing a performance, one finds a series of triggered ripples of uncertainty, subjectivity and room for arbitrariness at the hands of police officials and licensing authority.

The phrase 'impropriety of language, the indecency of dress, dance, movement or gesture, offensive personation or representation, likely to excite feeling of sedition or discontent, likely to cause riot or breach of peace, to promote or excite hostile feelings between different classes, religion or any individual' leave much room for indirect censorship of performances under such subjective and vague grounds.

Which language, dress code, costume, dance, movement or gesture or personation/representation in an artistic performance would amount to being offensive or have the likelihood to cause adverse effects is a matter of pure subjective interpretation.

For instance, a cabaret dance during a theatrical act showcasing the art form may be found acceptable to some and non acceptable to some others based on an individual's social and cultural appreciation of the dress, expressions and movements involved.

Similarly, in a play showing opposing political ideologies of Gandhi and BR Ambedkar over caste based reservations, a democratic debate and deliberation is bound to be instilled in the audience. In such a scenario what factors would the police officials look at to evaluate the 'likeliness' of a scene or a dialogue or a personification to cause offence/ sedition/ discontent/ breach of peace/ hostility?

Additionally, terms like 'offensive', 'discontent','breach of peace', 'hostile feelings' themselves lack an objective definition in the regulations and the parent act. A joke/mimicry may be perceived as offensive for one but not for another. A climax in a play or sad ending may make some discontent and some part of the audience content.

A police official/ licensing authority in considering the above aspects is pushed into a grey area, giving way for them to apply a subjective yardstick of discretion. Thus the present Regulations of 2023 are hit by the principle laid down in Grayned Case and find no support of the decision in KA Abbas Case , where the censorship powers were upheld due to the clear 'General Principles' that eliminated the ingredient of vagueness. The PCC and conditions to hold a performance under the licence suffer from the identical evil of uncertainty and arbitrary exercise of powers as observed by the Court in Shreya Singhal Case.

The above discussed aspects indicate a clear violation of Article 19(1)(a) of the performers as the violating provisions cannot take umbrage under the test of 'reasonable restrictions'.

The financial and professional freedom of the artists is also under peril because of the vague regulation on licensing fees imposed by the authorities. Regulation 5(4) under the Chapter IV states that the fees for performance licence shall be 'as specified by the Commissioner of Police from time to time with prior approval of Administrator/ Lieutenant Governor, Delhi'.

The lack of clarity on the fees amount and absence of any minimum or maximum quantitative limit to prescribe the licensing fees may jeopardise the fate of artists' livelihood. An exorbitant increase in the licensing fees would have an immediate impact on the number of shows or performances each artist/ performer would do each year, especially keeping in mind the other key expenses that go into each performance- hefty auditorium rents in and around Mandi House, production expenditure - props, make-up, costume, lights, technical equipments etc. The unclear terms of licensing fees threaten the Performers' right to practise their profession under Article 19(1)(g).

3. The Implementation Of PCC By Delhi Police Without Notifying The Enforcement Of The 'Draft' Regulations of 2023 Is A Colourable Exercise Of Power

In the absence of any official notification that clarifies the enforcement of the Draft Regulations 2023, the imposition of a PCC by the Delhi Police on the Unified Portal would amount to arbitrary and colourable exercise of Power.

A colourable exercise of power occurs when the action of the administrator appears to be legitimate but in fact is done without any authority given under the law. In RS Joshi v. Ajit Mills, the Supreme Court explained that the concept of colourability is 'bound up with incompetency'. That means that an administrative action done without competence would be a colourable action.

Notably, the Unified Portal in its application procedure mandates a PCC “ under The Regulation For Licensing Places of Public Amusement And Public Amusement Performances (other than Cinema), 2023” with the omission of the word 'Draft' (Regulations) as can be found the regulations' original formal name. This would only imply that the Regulations of 2023 and the PCC within it are being enforced without any official notification of implementation being put in public knowledge. In the absence of such notification, the regulations should ideally remain in its draft version without legal enforcement. However, the contrary is seen in the present scenario.

The lack of clarity on the implementation of the 2023 Regulations and its vaguely canvassed provisions have a potential impact on the artists and the future of Mandi House.

In Delhi's Mandi House, one can still find the magic of the centuries-old legendary art form of theatre alive and running. The successful legacy of Mandi House today is a testament to how theatre and related art forms promote social discourse in the Capital's democratic mindset. The unreasonable restrictions on the artistic freedoms of performers would directly impact the active role of theatre and places like Mandi House in stirring positive dialogue for better understanding of the social issues and becoming a medium to voice potential social change. Mandi House's theatre and arts culture undoubtedly act like a mirror and reflection of contemporary society.

The preservation of Delhi's central hub of art can only be done by ensuring adequate protection of the legal rights of the artists and performers.

Author Arvind Gaur is a theatre director and founder of Asmita Theatre Group and can be reached out at asmitatheatre@gmail.com

Author Anmol Kaur Bawa is a Supreme Court Correspondent at Livelaw. She can be reached at anmol@livelaw.in

Views are personal.

[i] 33 L.Ed. 2d. 222

[ii] 521 U.S. 844 (1997)