Manish Sisodia clarifies that there was no ban on playing recorded music in pubs and restaurants

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After a circular issued by the Excise Department on May 16, 2018 which reminded restaurants that only live music was allowed on their premises, Deputy Chief Minister Manish Sisodia on Tuesday told the Department to issue a clarification that there was no ban on recorded music.

On May 16, the Excise Department issued a circular to holders of the L-17 category of licence, which is given to restaurants that serve alcohol, saying that the rules permitted only live singing/ playing of instruments by professionals.

The circular stated that the Department has received complaints from the local residents, regarding nuisance created by the restaurants holding L-17 license, violating the provisions of the Excise Rules.

Rule 53(4) of the Delhi Excise Rules, 2010 which deals with conditions relating to conduct of business was cited in the circular which reads as under:

“(4) The licensee shall not permit any professional entertainment or dancing, or the playing of musical instruments or singing by professionals, to be carried on his premises in such a way as to attract the general attention of his customers:

Provided that this condition shall not apply to a hotel or a restaurant or a club licensed in forms L-15, L-16, L-17, L-28 and L-29, except in so far it is imposed by the Deputy Commissioner by general or special order. However, in the case of L17 licensee only live singing /playing of instruments by professionals shall be allowed.

As per reports, representatives of the National Restaurant Association of India (NRAI) met Mr. Sisodia. On May 21, he issued instructions to Excise Commissioner Amjad Tak asking for a clarification.

“Though the file was not shown to me before issuing the order. However, after perusal of the order, I have found that order is not posing any ban of such nature [sic],” he wrote.

He added that there was still some “confusion” and asked the department to give a report of compliance by Wednesday.

On May 22, Delhi Deputy Chief Minister Manish Sisodia directed the excise commissioner to issue a clarification that there was no ban on playing recorded music in pubs and restaurants.

Considering the confusion created by misinterpretation of the order, the excise department needs to issue a clarification order with respect to above [ban on playing recorded music],” Sisodia said. He also asked the excise commissioner to submit a compliance report on May 23.

It would be interesting to point out that neither the circular nor the Excise Rules expressly state that there is a ban on playing recorded music. However, the conditions of license of L-17 licensees itself permits only live singing /playing of instruments by professionals.  None of these press statements given by the Delhi Government state in the affirmative that recorded music can be played. It merely states that there is no ban on playing recorded music as per the circular. In my view, going by the extant Delhi Excise Rules, 2010, if these L-17 licensees play any music other than live singing/ playing of instruments by professionals, they would be violating the terms of their license.

As rightly pointed out by Advocate Ankit Relan (Partner, Mason & Associates), this circular which is based on the 2010 Rules creates an arbitrary classification between granting a license to play live and non-live music in resto-bars and pubs and ends up putting undue fetters on the right to carry on business. It therefore ought to be challenged as being unconstitutional under Article 14, 19(1)(g) and indeed Article 21. He further says that music companies, IPRS (perhaps ISRA as well) should challenge this circular as being unconstitutional.

I agree with Ankit’s views on this issue. In the first place, Rule 53(4) of the Delhi Excise Rules, 2010 itself ought to have been challenged by the affected parties. It’s surprising that no case has been filed in all these years. This circular therefore offers an opportunity to relook at this issue and challenge its constitutionality.

If recorded music is not permitted to be played in these restaurants, it impacts the royalty collections which would have been collected by IPRS, ISRA and music owners towards the exploitation of sound recordings. As per reports, almost 900 resto-bars/ pubs fall under the L-17 category.  That’s a huge chunk of royalties.

It would be interesting to see if any of the affected parties challenge this circular and take advantage of the opportunity.

Image source: here

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