S. Rangarajan
Etc Vs. P. Jagjivan Ram [1989] INSC 109 (30 March 1989)
Shetty,
K.J. (J) Shetty, K.J. (J) Singh, K.N. (J) Kuldip Singh (J)
CITATION:
1989 SCR (2) 204 1989 SCC (2) 574 JT 1989 (2) 70 1989 SCALE (1)812
ACT:
Cinematograph
Act, 1952 (Cinematograph (Certificate) Rules, 1983.
Sections
4, 5, 5A, B, C and 8/Guidelines (1)--(3) and notification dated January 21, 1987.
High
Court revoking 'U' certificate granted by Censor Board-Validity of High Court
order--Duty of Censor Board--Obligatory duty of state to protect freedom of ex-
pression.
Constitution
of India--Articles 19(1)(a) and 19(2)--Freedom of speech and
expression--Reasonable restric- tions must be justified on anvil of necessity
and not quicks--Sand of convenience and expediency--Obligatory duty of State to
protect freedom of expression.
HEAD NOTE:
The
appellant, S. Rangarajan is a film producer. He produced a Tamil film "Ore
Oru Gramathile" and applied for certificate for exhibition of the film.
The examination committee upon seeing the film refused to grant the Certifi- cate
but on a reference being made to the 2nd Revising Committee for review and
recommendation, the Committee by a majority of 5:4 recommended the grant of a
'U' certificate subject to deletion of certain scenes.
On 7.12.87
'U' certificate was granted which was chal- lenged in the High Court by means
of writ petitions. It was contended before the High Court that the film is
treated in an irresponsible manner, the reservation policy of the Govt.
has
been projected in a biased manner and the so-called appeal in the film that
"India is one" is a hollow appeal which touches caste sensitivity of
the Brahmin forward caste. It was also asserted that the film would create law
and order problem in Tamil Nadu. The Writ Petitions were dismissed by the
Single Judge but upon appeal they were allowed and the 'U' certificate issued
to the appellant- producer was revoked. These two appeals, one by the producer
of the film and the other by the Union of India have been filed by 205 special
leave of challenging the decision of the High Court.
The
principal contentions raised on behalf of the appellants were:
(i)
that the fundamental right of freedom of free expression guaranteed under the
Constitution covers even the medium of movies; that the opinion on the film
ought not to be rested on the isolated passages disregarding the main theme and
its message;
(ii)
That the Court should not concern itself with the correctness or legality of
the views expressed in the film and the Court cannot limit the expression on
any general issue even if it is controversial and that the writings of the film
must be considered in a free and liberal manner in the light of the freedom of
expression guaranteed under the Constitution. It was asserted that the theme of
the film is that reservation could be on the basis of economic backwardness
instead of caste.
Counsel
for the Respondents was critical about the manner in which the reservation
policy of the Govt. has been condemned and the events and the characters portrayed
in the film, as they are depicted in a biased manner and reaction to the film
in Tamil Nadu is bound to be volatile and likely to create law and order
problem. Allowing the appeals, this Court,
HELD:
The motion pictures were originally considered as a form of amusement to be
allowed to titillate but not to arouse. They were treated as mere entertainment
and not an art or a means of expression. Movie motivates thought and action and
assures a high degree of attention and retention.
It
makes its impact simultaneously arousing the visual and aural senses. The movie
had unique capacity to disturb and arouse feelings. It has as much potential
for evil as it was for good. It has an equal potential to instil or cultivate
violent or good behaviour. [211D-E; 212G; 213D] Censorship by prior restraint
is, therefore, not only desirable but also necessary. [213E] The Censors Board
should exercise considerable circum- spection on movies affecting the morality
or decency of our people and cultural heritage of the country. The moral values
in particular, should not be allowed to be sacrificed in the guise of social
change or cultural assimilation.
[216G-H]
The Censors should be responsive to social change and they must go with the
current climate. The Censors may display more sensitivity 206 to movies which
will have a markedly deleterious effect to lower the moral standards of those
who see it. [217C-D] If the film is unobjectionable and cannot constitution-
ally be restricted under Article 19(2), freedom of expres- sion cannot be
suppressed on account of threat of demonstra- tion and processions or threats
of violence. That would tantamount to negation of the rule of law and a
surrender to black mail and intimidation. It is the duty of the State to
protect the freedom of expression since it is a liberty guaranteed against the
State. The State cannot plead its inability to handle the hostile audience
problem. It is its obligatory duty to prevent it and protect the freedom of
expression. [230C-D] The Revising Committees have approved the film. The
members thereof come from different walks of life with variegated experiences.
They represent the cross section of the community. They have judged the film in
the light of the objectives of the Act and the guidelines provided for the
purpose. There is nothing wrong or contrary to the Constitu- tion in approving
the film for public exhibition. [230E-F] The framework of the Indian
Constitution differs from the First Amendment to the U.S. Constitution. Article
19(1)(a) guarantees to all citizens the right to freedom of speech and
expression. The freedom of the expression means the right to express one's
opinion by words of mouth, writ- ing, printing, picture or in any other manner,
it would thus include the freedom of communication and the right to propa- gate
or publish opinion. The communication of ideas could be made through any
medium, newspaper, magazine or movie. But this right is subject to reasonable
restrictions on grounds set out under Article 19(2). Reasonable limitations can
be put 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.
[212B-D]
In matters of certification of films, it is necessary to take prompt action by
the respective authorities. The pro- ducer who has invested a large capital
should not be made to wait needlessly. He has a statutory right to have the
valid- ity of the film determined in accordance with law. It would be,
therefore, proper and indeed appreciative if the film is reviewed as soon as it
is submitted. It is not proper to form an opinion by dwelling upon stray
sentences or isolated passages disregarding the main theme. [219E; 220B-C] 207
Freedom of expression is the rule and it is generally taken for granted. Every
one has a fundamental right to form his own opinion on any issue of general
concern. He can form and inform by any legitimate means. [223C] Democracy is Government
by the people via open discus- sion. The democratic form of government itself
demands its citizens an active and intelligent participation is a basic
features and a rational process of democracy which distin- guishes it from all
other forms of govt. Public discussion on issues relating to administration had
positive value.
[223D-E]
Our commitment to freedom of expression demands that it cannot be suppressed
unless the situations created by allow- ing the freedom are pressing and the
community interest is endangered. The anticipated danger should not be remote,
conjectural or far fetched. It should have proximate and direct nexus with the
expression. The expression of thought should be intrinsically dangerous to the
public interests.
In
other words, the expression should be inseparably locked up with the action
contemplated like the equivalent of a "spark in a power keg".
[226G-H] It is difficult to understand how the expression in the film with
criticism of reservation policy or praising the colonial rule will affect the
security of the State or sovereignty and integrity of India. There is no utterance in the film
threatening to overthrow the Govt. by unlawful or unconstitutional means. There
is no talk of secession either nor is there any suggestion for impairing the
integration of the country. The film seems to suggest that the existing method
of reservation on the basis of caste is bad and reservation on the basis of
economic backwardness is better.
The
film also deprecates exploitation of people on caste considerations. [222G-H;
223A] The fundamental freedom under Art. 19(1)(a) can be reasonably restricted
only for the purposes mentioned in Art. 19(2) and the restriction must be
justified on the anvil of necessity and not the quicks and of convenience and
expediency. Open criticism of Government policies and opera- tions is not a
ground for restricting expression. We must practice tolerance to the views of
others. Intolerance is as much dangerous to democracy as to the person himself.
[230H;
231A-B]
The Court allowed the appeals, set aside the judgment of the High Court and
dismissed the writ petitions. [231B-C] 208 Mutual Film Corporation v.
Industrial Commission, 235 U.S. 230 (1915) referred to, Burstyn v. Wilson, 343
U.S. 495 referred to, Schenek v. United States, 249 U.S. 47 (1919) referred to,
Santosh Singh v. Delhi Administration, [1973] 3 SCR 533 followed, K.A. Abbas v.
Union of India, [1971] 2 SCR 446 referred to, Ramesh v. Union of India, [1988]
1 SCC 668; Bhagwat Charan Shukla v. Provincial Government, AIR 1947 Nag 1 at
676, Rajkappoor v. Laxman, [1980] 2 SCR 512, Maneka Gandhi v. Union of India,
[1978] 2 SCR 621; Naraindas v. State of Madhya Pradesh, [1974] 3 SCR 624; Sakal
v. Union of India, [1962] 3 SCR 842, Whitney v. California, [274] U.S. 357,
375-378, 1927; Manohar v. Govt. of Bombay, AIR 1950 Bombay 210; Niharender Dutt
Majumdar v. Emperor, AIR 1942 FC 22 and Handyside v. United Kingdom, [1975I
EHRR/737 at p. 754 referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 1668 and 1669 of 1988.
From
the Judgment and Order dated 29.4.1988 of the Madras High Court in W.R. Nos.
469 and 488 of 1988.
Soli
J. Sorabjee, V.C. Mahajan, C.A. Sundaram, U.A. Rana, M. Mudgal, Ms. Indu Malhotra,
C.V. Subba Rao, A. Mariar Autham, Aruna Matbur, N.N. Sharma, Jose Varghese, Bhagwan
Das, R. Mohan, R.A. Perumal and A.V. Rangam for the appearing parties.
The
Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. These appeals
by leave are from the judgment of the Division Bench of the Madras High Court
revoking the 'U-Certificate' issued to a Tamil film called "Ore Oru Gramathile"
(In one Village) for public exhibition.
Civil
Appeal Nos. 1668 and 1669 of 1988 are by the producer of the film and the Civil
Appeal nos. 13667 and 133668 of 1988 are by the Union of India.
The
story of "Ore Oru Gramathile" can be summarised as follows:
"A
Brahmin widower, Shankara Sastry, has a talented daughter Gayathri. He
apprehends that she would not be able to get admission to college because she
belongs to a Brahmin community. He seeks advice from his close friend Devashayam,
a Tehsildar. The Tehsildar who otherwise belongs to a very poor family and
whose father was working in a local Church responds with gratitude. He divises
a 209 method to help Gayathri because it was through Sastry's father that he
got proper education and rose to become a Tahsildar. He prepares a false
certificate showing Gayathri as Karuppayee belonging to an Adi Dravida
Community and as an orphan. He issues the certificate under the reservation
policy of the Government for the benefit of 'backward commu- nities' identified
on caste consideration. On the basis of the false certificate, Karuppayee gets
admitted to college and enters I.A.S. witness to this arrangement is the broth-
er-in-law of Tahsildar called Anthony who later turns out to be a villain of
the piece. " "Years later, Karuppayee, who was working in Delhi is sent to a rural village called Annavayil
as a Special Offi- cer for flood relief operations. Her father, Shankara Sastry
happens to work in the same village as Block Development Officer. However, both
of them pretend not to recognise each other. Karuppayee takes her work
seriously and improves the living conditions of people to such an extent that
she is held by them in high esteem. By a coincidence, after the death of the Tahsildar,
Anthony comes to live in the same village and recognises Karuppayee. He starts
blackmailing her and threatens to reveal the fraudulent means by which she got
the caste certificate. His attempt is to extract money from her frequently. One
evening when he visits Karup- payee's house, he is confronted by Shankara Sastry
who puts a halt to his blackmailing. Later Anthony dies of sudden heart attack
but not before he informs the Government about the facts relating to Karuppayee.
Upon preliminary enquiry, the Government suspends both Karuppayee and her
father and eventually they are put on trial in the Court. The people of the
village resentful of the action taken against Karuppayee rise as one man and
demonstrate before the Court in a peace- ful manner for her release. They also
send petitions to the Government." "Karuppayee and her father admit
in the Court the fact of their having obtained the false caste certificate but they
attribute it to circumstances resulting by Government reservation policy on
caste basis. They say that they are prepared to undergo any punishment. They
contend hat some politicians are exploiting the caste consideration and that
would be detrimental to national integration. They also argue that the
reservation policy should not be based on caste, but could be on economic
backwardness. Just about the time when the judgment is to be pronounced the
Court re- ceives intimation from Government that in the light of petitions
received from the public, the case against Karup- payee and her father stands
withdrawn. Karuppayee goes back to her Government job with jubilent people all
round." 210 This is the theme of the picture presented. As usual, it
contains some songs, dance and side attractions to make the film more
delectable.
On
August 7, 1987, the producer applied for certificate for exhibition of the
film. The examining committee upon seeing the film unanimously refused to grant
certificate.
The
appellant then sought for review by a Revising Committee which consisted of
nine members. This Committee reviewed the film. Eight members were in favour of
grant of certificate and one was opposed to it. The Chairman of the Censor
Board however, referred the film to Second Revising Committee for review and
recommendation. This again consisted of nine members and by majority of 5:4
they recommended for issue of 'U' certificate subject to deletion of certain
scenes. The 'U' certificate means for unrestricted public exhibition as against
'A' certificate restricted to adults only. The minority expressed the view that
the film is treated in an irresponsible manner. The reservation policy of the
Govern- ment is projected in a highly biased and distorted fashion.
They
have also stated that the so called appeal in the film "India is One"
is a hollow-appeal, which in effect touches caste sensitivity of the Brahmin
forward caste. One of the members felt that the impact of the film will create
law and order problem. Another member said that the film will hurt the feelings
and sentiments of certain sections of the public. But the majority opined that
the theme of the film is on the reservation policy of the Government suggesting
that the reservation could be made on the basis of economic backwardness. Such
a view could be expressed in a free country like India, and it did not violate
any guideline.
On
December 7, 1987, 'U' certificate was granted for the exhibition of the film
which was challenged before the High Court by way of writ petitions. The writ petitions
were dismissed by the Single judge, but the Division Bench upon appeal allowed
the writ petitions and revoked the certifi- cate. The Division Bench largely
depended upon the minority view of the Second Revising Committee and also the
opinion of the Examining Committee. The producer of the film and the Government
of India by obtaining leave have appealed to this Court. The film has since
been given National Award by the Directorate of Film Festival of the Government
of India.
In
these appeals, the fundamental point made by Mr. Soli Sorabjee, learned counsel
for the producer is about the freedom of free expression guaranteed under our
Constitution even for the medium of 211 movies. The counsel argued that the
opinion on the effect of the film should not be rested on isolated passages disre-
garding the main theme and its message. The Film should be judged in its
entirety from the point of its overall impact on the public. The writings of
the film must be considered in a free, fair and liberal spirit in the light of
the freedom of expression guaranteed under our Constitution. The counsel said
that the Court is not concerned with the cor- rectness or legality of the views
expressed in the film and the Court cannot limit the expression on any general
issue even if it is controversial. Mr. Mahajan for the Union of India supported
these submissions. Mr. Varghese learned counsel for the contesting respondents
did not dispute most of the proposition advanced for the appellants. He was,
however, critical about the manner in which the reservation policy of the
Government has been condemned and the events and characters shown in the film.
He contended that they are depicted in a biased manner and reaction to the film
in Tamil Nadu is bound to be volatile.
Before
examining these rival contentions, a few general observations may be made as to
the utility of movies and the object of the film Censors Board. The motion
pictures were originally considered as a form of amusement to be allowed to
titillate but not to arouse. They were treated as mere entertainment and not an
art or a means of expression. This theory was based on the concept that motion
picture was a business "pure and simpe originated and conducted for prof- it,
like other spectacles." It was considered strictly as an "amusement
industry". It was so held in 1915 by the unani- mous decision of the
American Supreme Court in Mutual Film Corporation v. Industrial Commission, 236
U.S. 230 (1915).
It was
not without significance since there were no talking pictures then. The talking
pictures were first produced in 1926, eleven years after the Mutual decision
(Encyclopedia Britinnica) (1965 Vol. 15 p. 902). The later decisions of the
American Supreme Court have therefore declared that expression by means of
motion pictures is included within the free speech and free press guaranty of
the First Amend- ment. (See Burstyn v. Wilso, 343 U.S. 495). The First Amend- ment
to the U.S. Constitution provides: "Congress shall make no law ...
abridging the freedom of speech, or of the press." This Amendment is
absolute in terms and it contains no exception for the exercise of the fight.
Heavy burden lies on the State to justify the interference. The judicial
decisions, however, limited the scope of restriction which the State could
impose in any given circumstances. The danger rule was born in Schenek v.
United States, 249 U.S.
47
(1919). Justice Holmes for a unanimous court, evolved the test of "clear
and present danger". He used the danger test to 212 determine where
discussion ends and incitement or attempt begins. The core of his position was
that the First Amend- ment protects only utterances that seeks acceptance via
the democratic process of discussion and agreement. But "Words that may
have all the effect of force" calculated to achieve its goal by
circumventing the democratic process are howev- er, not so protected.
The
framework of our Constitution differs from the First Amendment to the U.S.
Constitution. Article 19(1)(a) of our Constitution guarantees to all citizens
the right to freedom of speech and expression. The freedom of expression means
the right to express one's opinion by words of mouth, writ- ing, printing, picture
or in any other manner. It would thus include the freedom of communication and
the right to propa- gate or publish opinion. The communication of ideas could
be made through any medium, newspaper, magazine or movie. But this right is
subject to reasonable restrictions on grounds set out under Article 13(2) of
the Constitution. The reason- able limitations can be put in the interest of
sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, deceny
or morality or in relation to contempt of court, defamation or incitement to an
offence. The Framers deemed it essential to permit imposition of reasonable
restrictions on the larger interests of the community and country. They
intended to strike a proper balance between the liberty guaranteed and the
social interest specified under Article 19(2). (See Santokh Singh v. Delhi
Administration, [1973] 3 SCR 533).
This
is the difference between the First Amendment to the U.S. Constitution and
Article 19(1)(a) of our Constitu- tion. The decisions bearing on the First
Amendment are, therefore, not useful to us except the broad principles and the
purpose of the guaranty.
Movie
doubtless enjoys the guaranty under Article 19(1)(a) but there is one
significant difference between the movie and other modes of communication. The
movie cannot function in a free market place like the newspaper, magazine or
advertisement. Movie motivates thought and action and assures a high degree of
attention and retention. It makes its impact simultaneously arousing the visual
and aural senses. The focusing of an intense light on a screen with the
dramatizing of facts and opinion makes the ideas more effective. The
combination of act and speech, sight and sound in semi-darkness of the theatre
with elimination of all distracting ideas will have an impact in the minds of
spectators. In some cases, it will have a complete and im- 213 mediate
influence on, and appeal for every one who sees it.
In
view of the scientific improvements in photography and production the present
movie is a powerful means of communi- cation. It is said: "as an
instrument of education it has unusual power to impart information, to
influence specific attitudes towards objects of social value, to affect emo- tions
either in gross or in microscopic proportions, to affect health in a minor
degree through sleep disturbance, and to affect profoundly the patterns of
conduct of chil- dren." (See Reader in Public Opinion and Communication
Second Edition by Bernard Betelson and Morris Janowitz p. 390). The authors of
this Book have demonstrated (at 391 to 401) by scientific tests the potential
of the motion pic- tures in formation of opinion by spectators and also on
their attitudes. These tests have also shown that the effect of motion pictures
is cumulative. It is proved that even though one movie relating to a social issue
may not signifi- cantly affect the attitude of an individual or group, con- tinual
exposure to films of a similar character will produce a change. It can,
therefore, be said that the movie has unique capacity to disturb and arouse
feelings. It has as much potential for evil as it has for good. It has an equal
potential to instil or cultivate violent or good behaviour.
With
these qualities and since it caters for mass audience who are generally not
selective about what they watch, the movie cannot be equated with other modes
of communication.
It
cannot be allowed to function in a free market place just as does the
newspapers or magazines. Censorship by prior restraint is, therefore, not only
desirable but also neces- sary.
Here
again we find the difference between the First Amendment to the U.S.
Constitution and Article 19(1)(a) of our Constitution. The First Amendment does
not permit any prior restraint, since the guaranty of free speech is in
unqualified terms. This essential difference was recognised by Douglas, J.,
with whom Black, J., concurred in Kingsley Corporation v. Regents of the
University of New York, 3 L.Ed. 1512 at 1522. In holding that censorship by
"prior restraint" on movies was unconstitutional, the learned Judge
said:
"If
we had a provision in our Consti- tution for "reasonable" regulation
of the press such India has included in hers, there would be room for argument
that censorship in the interests of morality would be permissi- ble. Judges
sometimes try to read the word "reasonable" into the First Amendment
or make the rights it grants subject to reasonable regulation ..... But its
language, in terms that are absolute is utterly at war with censorship.
214
Different questions may arise as to censorship of some news when the nation is
actually at war. But any possible exceptions are extremely limited." The
Cinematograph Act 1952 ("The Act") which permits censorship on movies
is a comprehensive enactment. Section 3 of the Act provides for constitution of
Board of Film Cen- sors. Section 4 speaks of examination of films. A film is
examined in the first instance by an Examining Committee. If it is not
approved, it is further reviewed by a Revising Committee under Section 5.
Section 5A states that if after examining a film or having it examined in the
prescribed manner, the Board considers that the film is suitable for
unrestricted public exhibition, such a certificate is given which is called 'U'
certificate.
Section
5(a) provides principles for guidance in certi- fying films. It is significant
to note that Article 19(2) has been practically read into Section 5(B)(1).
Section 5(C) confers right of appeal to Tribunal against refusal of
certificate. Under Section 6, the Central Government has revisional power to
call for the record of any proceeding in relation to any film at any stage,
where it is not made the subject matter of appeal to the Appellate Tribunal.
Under
Section 8 of the Act, the Rules called the Cine- matograph (Certification)
Rules 1983 have been framed. Under Section 5(B)(2) the Central Government has
prescribed cer- tain guidelines for the Censors Board. Guideline (1) relates to
the objectives of film censorship. The Board shall ensure that: (a) the medium
of film remains responsible and sensi- tive to the values and standards of
society; (b) artistic expression and creative freedom are not unduly curbed and
(c) censorship is responsive to social change.
Guideline
(2) requires the Board to ensure that:
(i) anti-social
activities such as violence not glorified or justified;
(ii) the
modus operandi of criminal or other visuals or words likely to incite the
commission of any offence are not depicted;
(iii) pointless
or avoidable scenes of violence, cruelty and horror are not shown;
(iv) human
sensibilities are not offended by vulgarity, obscenity and depravity;
(vi) the
sovereignty and integrity of India is not
called in question;
(vii) the
security of the State is not jeopardized or endangered;
(viii)
friendly relations with foreign states are not strained; and
(ix)
Public Order is not endangered.
Guideline
(3) also requires the Board to ensure that the film: (i) 215 is judged in its
entirety from the point of view of its overall impact and; (ii) is examined in
the light of contem- porary standards of the country and the people to whom the
film relates.
It
will be thus seen that censorship is permitted mainly on social interest
specified under Article 19(2) of the Constitution with emphasis on maintenance
of values and standards of society. Therefore, the censorship by prior
restraint must necessarily be reasonable that could be saved by the well
accepted principles of judicial review.
In
K.A. Abbas v. Union of India, [1971] 2 SCR 446 a Constitution Bench of this court
considered important questions relating to pre-censorship of cinematograph
films in relation to the fundamental right of freedom of speech and expression.
K.A. Abbas, a noted Indian journalist and film producer produced a short
documentary film called "A tale of Four Cities". In that film he
sought to contrast the self indulgent life of the rich in Metropolitan cities
with the squalor and destitution of labouring masses who helped to construct
the imposing buildings and complexes utilised by the rich. The film also goes
on to explore the theme of exploitation of women by men, dealing in particular
prostitution. Abbas applied to the Board of Film Censors for a 'U' certificate,
permitting unrestricted exhibition of the film.
He was
informed by the regional officer that the Examining Committee had provisionally
concluded that the film should be restricted to adults. The Revising Committee
concurred in this result, whereupon Abbas, after exchanging correspondence with
the Board, appealed to the Central Government. The Government decided to grant
'U' certificate provided that the scenes in the red light district were deleted
from the film. Abbas challenged the action of the Board mainly on four issues
out of which two did not survive when the Solicitor General stated before the
Court that the Government would set on foot legislation to effectuate the
policies at the earliest possible date. The two issues which survived thereupon
were: (a) that pre-censorship itself cannot be tolerated under the freedom of
speech and expression; (b) that even if it were a legitimate restraint on the
freedom, it must be exercised on very definite principles which leave no room
for arbitrary action.
With
regard to the power of pre-censorship, Hidayatul- lah, C.J., observed (at
473-74):
"The
task of the censor is extremely delicate ..... The standards that we set out
for our censors must make a 216 substantial allowance in favour of freedom thus
leaving a vast area for creative art to interpret life and society with some of
its foibles along with what is good. We must not look upon such human
relationships as banned in toto and for ever from human thought and must give
scope for talent to put them before society. The requirements of art and litera-
ture include within themselves a comprehen- sive, view of social life and not
only in its ideal form and the line is to be drawn where the average man moral
man begins to feel embarassed or disgusted at a naked portrayal of life without
the redeeming touch of art or genius of social value. If the depraved begins to
see in these things more than what an average person would, in much the same
way as it is wrongly said, a Frenchman sees a woman's legs in everything, it
cannot be helped. In our scheme of things ideas having redeeming social or
artistic value must also have impor- tance and protection for their
growth." Recently, Sabyasachi Mukharji, J., in Ramesh v. Union of India,
[1988] 1 SCC 868 which is popularly called "TAMAS" case laid down the
standard of judging the effect of the words or expression used in the movie.
The learned Judge quoting with approval of the observation of Vivian Bose, J.,
as he then was, in the Nagpur High Court in the case of Bhagwati Charun Shukla
v. Provincial Govern- ment, AIR 1947 Nag 1 (at 676):
"That
the effect of the words must be judged from the standards of reasonable, strong
minded, firm and courageous men, and not those of weak and vacillating. This in
our opinion is the correct approach in judging the effect of exhibition of a
film or of reading a Book. It is the standard of ordinary reasona- ble man or
as they say in English law, "the man on the top of a Clampham omnibus.
" We affirm and reiterate this principle. The standard to be applied by
the Board or courts for judging the film should be that of an ordinary man of
common sense and pru- dence and not .that of an out of the ordinary or hypersensi-
tive man. We, however, wish to add a word more. The Censors Board should
exercise considerable circumspection on movies affecting the morality or
decency of our people and cultural heritage of the country. The moral values in
particular, should not be allowed to be sacrificed in the guise of social
change or cultural assimi- 217 lation. Our country has had the distinction of
giving birth to a galaxy of great sages and thinkers. The great thinkers and
sages through their life and conduct provided principles for people to follow
the path of fight conduct. There have been continuous efforts at rediscovery
and reiteration of those principles. Adi-guru Shankaracharya, Ramanujacharya, Madhwacharya,
Chaitanya Maha Prabhu, Swami Ram Krishan Paramhansa, Guru Nanak Sant Kabir and
Mahatma Gandhi, have all enlightened our path. If one prefers to go yet further
back, he will find "TIRUKKURAL" the ethical code from Tiruvalluvar
teaching which is "a general human morality and wisdom." Besides, we
have the concept of "Dharam" (right- eousness in every respect) a
unique contribution of Indian civilization to humanity of the world. These are
the bedrock of our civilization and should not be allowed to be shaken by
unethical standards. We do not, however, mean that the Censors should have an
orthodox or conservative outlook. Far from it, they must be responsive to
social change and they must go with the current climate. All we wish to state
is that the Censors may display more sensitivity to movies which will have a
markedly deleterious effect to lower the moral standards of those who see it.
Krishna Iyer, J., in Rajkapoor v. Laxman, [1980] 2 SCR 512 in words meaningful
expressed similar thought. The learned Judge said (at 5 17):
"The
ultimate censorious power over the Censors belongs to the people and by
indifference, laxity or abetment, pictures which pollute public morals are
liberally certified, the legislation, meant by Parlia- ment to protect people's
good morals, may be sabotaged by statutory enemies within." With these prefactory
remarks, let us now turn to the reasons which weighed with the High Court to
revoke the 'U' certificate and rule out the film altogether. The High Court has
found fault with the Constitution of the First Revising Committee. It has held
that the Revising Committee was constituted hurriedly and its constitution by
"delegate Board Member" was illegal and without authority of law. The
Committee also showed unusual favour to the producer by reviewing the film with
hot haste. In the absence of a First Revising Committee having come into
existence as known to law; the High Court said that the constitution of the
Second Revising Committee was invalid and inoperative.
We do
not think that the High Court was justified in reaching this conclusion. Under
the rules, the Regional Officer shall appoint an 218 Examining Committee to
examine the film. The reports and records relating thereto shall be treated as
confidential.
The
Rule 22 inter alia, states that after screening the film, the Examining Officer
shall within three working days send the recommendations of all the members of
the Examining Committee to the Chairman. Rule 24(1) provides for constitu- tion
of a Revising Committee. It states that on receipt of the record referred to in
rule 22, the Chairman may, of his own motion or on the request of the
applicant, refer the movie to a Revising Committee. In the instant case, the
Chairman did not constitute the first Revising Committee but a member of the
Board did. The question is whether the member of the Board was competent to
constitute the Revising Committee. Our attention was drawn to the Government
order dated January 21,
1987 made under sec.
7(B) of the Cinemato- graph Act. The order reads;
"No.
803/1/86-F(C) Government of India Ministry of Human Resource Development
Department of Culture.
New
Delhi, the 21st January, 1987 ORDER In exercise of the powers conferred by Sec.
7B of the Cinamatograph Act, 1952 (37 of 1952) (hereinafter referred to as the
said Act), the Central Government hereby directs that any power, authority or
jurisdiction exercisable by the Board of film, Certifica- tion (hereinafter
referred to as the Board) in relation to matters specified in sec. 4, sub-
sees. (3) and (4) of sec. 5, sec. 5-A and sec.
7C of
the said Act shall also be exercisable subject to the condition given below by
the following members of the Board at the Regional Office indicated against
each, with immediate effect and until further orders:
1. Shri
Samik Banerjee Calcutta
2. Ms.
Maithreyi Ramadhurai Madras
3. Dr.
B.K. Chandrashekar Bangalore XXX XXXX XXX XXXX"
This
order clearly states that the power of the Board shall also be exercisable by
the specified members within their regional office. For 219 Madras region Ms. Maithrayi Ramadhurai has
been constituted to . exercise such powers.
It
cannot be contended that the Central Government has no power to delegate the
powers or to issue the said order.
Sec.
7(B) empowers the Central Government to issue general or special order
directing that any power, authority or jurisdiction exercisable by the Board
under the Act shall be exercisable also by the Chairman or any other member of
the Board. The section further provides that anything done or action taken by
the Chairman or other member specified in the order shall be deemed to be a
thing done or action taken by the Board. From the provisions of sec. 7B read
with the Government order dated January 21, 1987, it becomes clear that the constitution of the First
Revising Committee by the member at the Madras Regional Office is not
vulnerable to any attack. It is legally justified and unassailable. The
conclusion to the contrary reached by the High Court is apparently unwarranted.
We
also do not find any justification for the observa- tion of the High Court that
there was unusual favour shown to the producer by the First Revising Committee
in reviewing the film. It is true that the film was reviewed within 2-3 hours
of the presentation of the application. But there is no reason to attribute
motives either to members of the Committee or to the producer. In matters of
certification of films, it is necessary to take prompt action by the respec- tive
authorities. The producer who has invested a large capital should not be made
to wait needlessly. He has a statutory right to have the validity of ,the film
determined in accordance with law. It would be, therefore, proper and indeed
appreciative if the film is reviewed as soon as it is submitted.
There
are two other side issues which may be disposed of at this stage. The scene
with song No. 2 in reel No. 3 and the comments by the heroine of looking at the
photo of Dr. Ambedkar, have come under serious criticism. It is said that the
song has the effect of spreading 'Kulachar' which is 'Poisonous message' to the
depressed classes not to educate their children. The complaint, if true, is
serious. We, therefore, gave our anxious consideration to the grievance.
We, as
did the High Court, viewed the movie. The cobbler sings the song in question
with his grandson who is eager to go to school. The song contains references to
Kamaraj, Anna and MGR who without even college education became Chief
Ministers. The cobbler asks the grandson: "What are you going to achieve
by education? and don't forsake the profes- sion you know and you can educate
yourself as a cobbler." 220 While these and other exchanges are going on
between the cobbler and grandson, the heroine comes and insists that the boy
should go to school. She promises to contribute Rs.50 as an incentive to the
cobbler every month and also to make good his income deprived of by the boy's
earning. They agree to her suggestion with "Vanakkam, Vanakkam". The
song thus ends with a happy note and the cobbler agrees to send his grandson to
school. It is true as pointed out by counsel for the respondents that one or
two references in the song are not palatable, but we should not read too much
into that writing. It is not proper to form an opinion by dwelling upon stray
sentences or isolated passages disgregarding the main theme. What is
significant to note is that the cobbler ultimately does not insist that his
grandson should continue the family pursuits. He accepts the suggestion made by
the heroine. It is, therefore, wrong to conclude that the song was intended to
convey poisonous message against the inter- ests of depressed classes.
The
criticism on the alleged comments on Dr. Ambedkar is equally unsustainable. The
confusion perhaps is due to the pronounced accent of an English word in the
course of Tamil conversation. The matter arises in this way: Sastry shows the
photograph of Dr. Ambedkar to heroine and enquires whether she likes it. Then
she makes certain comments.
According
to the High Court, she states, "Dr. Ambedkar worked for the poor. Not for
'par'." It is said that 'par' in Tamil means equality and if she says 'not
for the par', it means that Dr. Ambedkar did not work for equality. If she
states like that, it is certainly objectionable since Dr.. Ambedkar did
everything to have an egalitarian society. But while viewing the film, we could
not hear any such word used by the heroine. On the other hand, we distinctly
noted her saying, "Dr. Ambedkar worked for the poor, Not for power.."
This being the remark there is no basis for the criticism of the High Court.
The
last complaint and really the nub of the case for the respondent is about the
reel No. 14 covering the court scene where Karuppayee and Sastry are prosecuted
for offence of obtaining a false caste certificate. The reel No. 14 contains almost
a dialogue between the prosecution lawyer and Karuppayee. She criticises the
reservation policy of the Government. She states that during the British
regime, the people enjoyed educational freedom, and job opportunities which
were based on merit criteria and not vote caste in a particular constituency.
Then the prosecution lawyer puts a question "why do you regret this Madam?
Was not 'Bharat Matha' under shackles then?" She replies: "You are
right.
Then
"Bharat Matha" was in chains 221 (Vilangu, is the Tamil word used for
shackles which also means animals). Now "Bharat Matha" is under
animals' hands." On a further question from the prosecutor she explains
that her reference to 'animals' hands is only to those who incite caste,
language and communal fanaticism, thus confusing people and making it their
profession. She also states that it is the Government and its laws that have
made her and her father to tell a lie. The presiding Judge interrupts with a
question: "What is wrong in the Government approach? Can you
elaborate?" She replies: "That it is wrong not to give credence to
her merit and evaluate the same on the basis of her caste and such evaluation
would put a bar on the progress." She goes on to explain "Your laws
are the barri- ers Sir. You have made propaganda in nook and corner stating
"Be an Indian, Be an Indian". And if I proudly say I am an Indian
then the Government divides saying 'no, no, no, ..... You are a Brahmin, you
are Christian, you are a Muslim. It is the Government that divides." Then
she puts a question to herself: "What is the meaning of "Be an
Indian?" She explains that it must be without caste, creed and communal
considerations, from Kashmir to Kanyakumari, the country must be
one. She then blames the Government with these words: "The Government in
dealing with all has no one face.
Take
any application form they want to know your caste and religion. When all are
Indians where is the necessity for this question. You have divided the people
according to caste. Then if you reel off on "National integration"
will not the public laugh." As to the reservation policy to those who are
backward she says: "On Gods name, I have no objection in providing all
concessions to those who are backward. The list of those belonging to forward
sections and backward sections could be prepared on the basis of economic
considerations. And those below a specified limit of income be included in the
back- ward list." How did the High Court look at it? On the remark of
heroine as to the situations that existed during British administration, the
High Court observed thus:
"It
is preposterous and offensive to claim that education was independent when India was under British rule and that,
after independ- ence it is not there." The High Court also said:
"That
any denigration of Rule of law would never 222 bring orderly society. To preach
that it is- only law that prompted them to utter falsehood and in its absence
they would not have done it is a wrong way presenting a view point." As to
the allegations that 'Bharat Matha' is now in the hands of politicians, who are
instigating the masses on the basis of caste and language, etc., the High Court
remarked:
"If
this sort of decrying India for being an independent nation is
to be projected in films repeatedly, then in course of time, citizens will
loose faith in the integrity and sovereignty of India. With this sort of glori- fication made, how could it be
claimed that the film stands for national integration. That was why one Member
rightly said that it is a hollow-claim. Hence Guideline 2(vi) and (vii) are
contravened." On the total impact of the film, the High Court observed:
"That
certain peculiar factors will have to be taken into account because of
guidelines 3(i) and 3(ii). This film is in Tamil. It deals with reservations
now extended to large sections of people on a particular basis, and who have
suffered for Centuries, and at a time when they have not attained equality and
when their valuable rights which are secured under the Constitution is attempt-
ed to be taken away, they get agitated. This film taken in Tamil for Tamil
population on being screened in Tamil Nadu, will certainly be viewed in the
background of what had hap- pened in Tamil Nadu during the preceding four
decades, and the reactions are bound to be volatile." We find it difficult
to appreciate the observations of the High Court. We fail to understand how the
expression in the film with criticism of reservation policy or praising the
colonial rule will affect the security of the State of sovereignty and
integrity of India. There is no utterance in the film threatening to overthrow
the Government by unlawful or unconstitutional means. There is no talk for
secession either. Nor there is any suggestion for impairing the integration of
the country. All that the film seems to suggest is that the existing method of
reservation on the basis of caste is bad and reservation on the basis of
economic back- wardness is better. The film also deprecates exploita- 223 tion
of people on caste considerations. This is the range and rigor of the film.
The
High Court, however, was of opinion that public reaction to the film, which
seeks to change the system of reservation is bound to be volatile. The HIgh
Court has also stated that people of Tamil Nadu who have suffered for centuries
will not allow themselves to be deprived of the benefits extended to them on a
particular basis. It seems to us that the reasoning of the High Court runs a
foul of the democratic principles to which we have pledged ourselves in the Constitution.
In democracy it is not necessary that every one should sing the same song.
Freedom of expression is the rule and it is generally taken for granted. Every
one has a fundamental right to form his own opinion on any issue of general
concern. He can form and inform by any legitimate means.
The
democracy is a Government by the people via open discussion. The democratic
form of government itself demands its citizens an active and intelligent
participation in the affairs of the community. The public discussion with
people participation is a basic feature and a rational process of democracy
which distinguishes it from all other forms of government. The democracy can
neither work nor prosper unless people go out to share their views. The truth
is that public discussion on issues relating to administration has positive
value. What Falter Lippmann said in another context is relevant here:
"When
men act on the principle of intelli- gence, they go out to find the facts .....
When
they ignore it, they go inside themselves and find out what is there. They
elaborate their prejudice instead of increasing their knowledge.
In Maneka
Gandhi v. Union of India, [1978] 2 SCR 621 Bhagwati J., observed at 696:
"Democracy
is based essentially on free debate and open discussion, for that is the only
corrective of Government action in a democratic set up. If democracy means
govern- ment of the people by the people. it is obvi- ous that every citizen
must be entitled to participate in the democratic process and in order to enable
him to intelligently exercise his right of making a choice, free and general
discussion of public matters is absolutely essential." 224 The learned
judge in Naraindas v. State of Madhya Pradesh,[1974] 3 SCR 624 while dealing
with the power of the State to select text books for obligatory use by students
said at 650:
"It
is our firm belief, nay, a con- viction which constitutes one of the basic
values of a free society to which we are wedded under our Constitution, that
there must be freedom not only for the thought that we cherish, but also for
the thought that we hate. As pointed out by Mr. Justice Holmes in Abramson v.
United States, 250 U.S. 616: "The ultimate good desired is better reached
by free trade in ideas--the best test of truth is the power of the thought to
get itself accept- ed in the competition of the market." There must be
freedom of thought and the mind must be ready to receive new ideas, to
critically analyse and examine them and to accept those which are found to
stand the test of scrutiny and to reject the rest." In Sakal v. Union of
India, [1962] 3 SCR 842 at 866, Mudholkar, J. said:
"This
Court must be ever vigilent in guarding perhaps the most precious of all the
freedoms guaranteed by our Constitution. The reason for this is obvious. The
freedom of speech and expression of opinion is of para- mount importance under
a democratic Constitu- tion which envisages changes in the composi- tion of
legislatures and governments and must be preserved." Movie is the
legitimate and the most important medium in which issues of general concern can
be treated. The producer may project his own messages which the others may not ap-
prove of. But he has a right to "think out" and put the counter
appeals to reason. It is a part of a democratic give-and-take to which no one
could complain. The State cannot prevent open discussion and open expression,
however, hateful to its policies. As Professor Fraund puts it: "The State
may not punish open talk, however, hateful, not for hypocritical reason that Hyde
Parks are a safety-valve, but because a bit of sense may be salvaged from the
odious by minds striving to be rational, and this precious bit will enter into
the amalgam which we forge." (Paul A. Freund-On Understanding the Supreme
Court 26 (1950).
"When
men differ in opinion, both sides ought equally to have 225 the advantage of
being heard by the public." (Benjamin Franklin). If one is allowed to say
that policy of the government is good, another is with equal freedom entitled
to say that it is bad. If one is allowed to support the governmental scheme,
the other could as well say, that he will not support it. The different views
are allowed to be expressed by proponents and opponents not because they are correct,
or valid but because there is freedom in this country for expressing even
differing views on any issue.
Alexander
Meiklejohn perhaps the foremost American philosopher of freedom of expression,
in his wise little study neatly explains:
"When
men govern themselves, it is they--and no one else--who must pass judgment upon
unwisdom and unfairness and danger. And that means that unwise ideas must have
a hearing as well as wise ones, unfair as well as fair, dangerous as well as
safe, an Ameri- can as well ...... American ..... If then, on any occasion in
the United States it is allowable, in that situation, to say that the
Constitution is a good document it is equally allowable, in that situation, to
say that the Constitution is a bad document. If a public building may be used
in which to say, in time of war, that the war is justified, then the same
building may be used in which to say that it is not justified. If it be
publicly argued that conscription for armed service is moral and necessary, it
may likewise be publicly argued that it is immoral and unnecessary. If it may
be said that American political insti- tutions are superior to those of England
or Russia or German, it may with equal freedom, be said that those of England
or Russia or Germany are superiors to ours. These conflict- ing views may be
expressed, must be expressed, not because they are valid, but because they are relevant
..... To be afraid of ideas, any idea, is to be unfit for self
government." (Political Freedom (1960) at 27). He argued, if we may say so
correctly, that the guaran- tees of freedom of speech and of the press are
measures adopted by the people as the ultimate rulers in order to retain
control over the Government, the people's legislative and executive agents.
Brandies,
J., in Whitney v. California, 274 US 357,375-8 (1927) propounded probably the
most attractive free speech theory:
226
" ..... that the greatest menace to freedom is an inert people; that
public dis- cussion is a political duty; .....It is hazardous to discourage
thought, hope and imagination; that the path of safety lies in the opportunity
to discuss freely supposed grievances and proposed remedies; and that the
fitting remedy for evil counsels is good ones." What Archibald Cox said in
his article though on "First Amendment" is equally rele- vant here:
"Some
propositions seem true or false beyond rational debate. Some false and harm- ful,
political and religious doctrine gain wide public acceptance. Adolf Hitler's
brutal theory of a 'master race' is sufficient exam- ple. We tolerate such
foolish and sometimes dangerous appeals not because they may prove true but
because freedom of speech is indivis- ible. The liberty cannot be denied to
some ideas and saved for others. The reason is plain enough: no man, no
committee, and surely no government, has the infinite wisdom and
disinterestedness accurately and unselfishly to separate what is true from what
is debata- ble, and both from what is false. To license one to impose his truth
upon dessenters is to give the same licence to all others who have, but fear to
lose, power. The judgment that the risks of suppression are greater than the
harm done by bad ideas rests upon faith in the ultimate good sense and decency
of free peo- ple." (Society Vol. 24 p. 8 No. 1 November/December 1986).
The
problem of defining the area of freedom of expres- sion when it appears to
conflict with the various social interests enumerated under Article 19(2) may
briefly be touched upon here. There does indeed have to be a compromise between
the interest of freedom of expression and social interests. But we cannot
simply balance the two interests as if they are of equal weight. Our commitment
to freedom of expression demands that it cannot be suppressed unless the
situations created by allowing the freedom are pressing and the community interest
is endangered. The anticipated danger should not be remote, conjectural or far
fetched. It should have proximate and direct nexus with the expression. The
expression of thought should be intrinsically dangerous to the public interest.
In other words, the expression should be inseparably locked up with the action
contemplated like the equivalent of a "spark in a powder keg".
227
Our remarkable faith in the freedom of speech and ex- pression could be seen
even from decisions earlier to our Constitution. In Kamal Krishna v. Emperor,
AIR 1935 Cal 636, the Calcutta High Court considered the effects of a speech
advocating a change of Government. There the accused was convicted under sec.
124(A) of Penal Code for making a speech recommending 'Bolshevik' form of
Government to re- place the then existing form of Government in Calcutta.
While
setting aside the conviction and acquitting the ac- cused, Lord Williams, J.,
who delivered the judgment ob- served (at 637):
"All
that the speakers did was to encourage the youngmen, whom he was address- ing,
to join the Bengal Youth League and to carry on a propaganda for the purpose of
inducing as large a number of people in India as possible to become supporters
of the idea of communism as represented by the present Bolshevik system in
Russia. It is really absurb to say that speeches of this kind amount to
sedition. If such were the case, then every argument against the present form
of Government and in favour of some other form of Government might be allowed
to lead to hatred of the Government, and it might be suggested that such ideas
brought the Govern- ment into contempt. To suggest some other form of
Government is not necessarily to bring the present Government into hatred or
contempt." To the same effect is the observation by the Bombay High Court
in Manohar v. Government of Bombay, AIR 1950 BOM 210. There the writer of an
article in a newspaper was convicted for an offence under the Press (Emergency
Powers) Act, 1931, for incitement to violence. The writer had suggested the
people to follow the example of China by rising against Anglo- American
Imperialism and their agents. He had also suggested his readers to pursue the
path of violence, as the Chinese people did, in order that Anglo-American
Imperialism should be driven out of this country. Chagla C.J., while quashing
the conviction said (at 2 13):
"It
is true that the article does state that the working class and the coiling
masses can get hold of power through the path of revolution alone. But the
expression 'rev- olution' is used here, as is clear from the context, in
contradistinction to reformism or gradual evolution. The revolution preached is
not necessarily a violent revolution.
228
XXX XXX XXX XXX As the writer has not stated in this article that the toiling
masses should take up arms and fight for their rights and thus achieve a
revolution we refuse to read this expression as inciting the masses to violent
methods." In Niharendu Dutt Majumdar v. Emperor, AIR 1942 FC 23, the
Federal Court examined the effects of a vulgar and abusive outburst against the
Government made by the accused for which he was convicted under Rule 34 of the Defence
of India Rules. Gwyer, C.J., while acquitting the person commented more boldly
(at 27):
"There
is an English saying that hard words break no bones; and the wisdom of the
common law has long refused to regard an actionable any words which, though
strictly and liberally defamatory, would be regarded by all reasonable men as
no more than mere vulgar abuse.
XXX XXX
XXX XXX XXX The speech now before us is full of them. But we cannot regard the
speech, taken as a whole as inciting those who heard it, even though they cried
"shame shame" at intervals, to attempt by violence or by public
disorder to subvert the Government for the time being established by law in
Bengal or elsewhere in India. That the appellant expressed his opin- ion about
that system of Government is true, but he was entitled to do so,; and his
reference to it were, we might almost say, both common place and in common
form, and un- likely to cause any Government in India a moments uneasyness. His
more violent outburst were directed against the then Ministry in Bengal and
against the Governor in Bengal in his political capacity but we do not feel
able to say that his speech whatever may be thought of the form in which it was
expressed, exceed- ed the legal limits of comment or criticism." Even the
European Court's approach in protecting the freedom of expression is not
different although they have the extensive list of circumstances for limiting
the free- dom. Article 10 of the European Convention of Human Rights and
Fundamental Freedom provides:
229
"(1) Every one has the right to freedom of expression.
(2)
The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, condi- tions,
restrictions or penalties as are pre- scribed by law and are necessary in a
demo- cratic society in the interests of national security, territorial
integrity or public safety, for the prevention of health or mor- als, for the
protection of the reputation or rights of others, for preventing the disclo-
sure of information received in confidence, or for maintaining the authority
and impartiality of the judiciary." It appears that the second paragraph
of Arti- cle 10 virtually removes the right purportedly guaranteed by the first
paragraph. However, the European Court in Handyside v. United Kingdom, [1976]
EHRR/737 observed at 754;
"The
court's supervisory functions oblige it to pay the utmost attention to the
principles characterising a 'democratic socie- ty'. Freedom of expression
constitutes one of the essential foundations of such a society, one of the
basic conditions for its progress and for the development of every man. Subject
to Article 10(2), it is applicable not only to 'information' or 'ideas' that
are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend shock or disturb the State or any
sector of the population. Such are the demands of that pluralism, tolerance and
broadminded- ness without which there is no 'democratic society'. This means,
amongst other things, that every 'formality', 'condition', 'restric- tion' or
'penalty' imposed in this sphere must be proportionate to the legitimate aim pur-
sued." This takes us to the validity of the plea put forward by the Tamil Nadu
Government. In the affidavit filed on behalf of the State Government, it is
alleged that some organisa- tions like the Tamil Nadu Scheduled Castes/Scheduled
Tribes People's Protection Committee, Dr. Ambedkar People's Move- ment, the
Republican Party of India have been agitating that the film should be banned as
it hurt the sentiments of people belonging to Scheduled Caste/Scheduled Tribes.
It is stated that the General Secretary of the Republican Party of India has
warned that his party would not hesitate to damage the cinema 230 theatres
which screen the film. Some demonstration made by people in front of "The
Hindu" office on March 16, 1988 and their arrest and release on bail are
also referred to. It is further alleged that there were some group meetings by
Republican .Party members and Dr. Ambedkar People's Movement with their demand
for banning the film. With these averments it was contended for the State that
the exhibition of the film. will create very serious law and order problem in
the State.
We are
amused yet troubled by the stand taken by the State Government with regard to
the film which has received the National Award. We want to put the anguished
question, what good is the protection of freedom of expression if the State
does not take care to protect it? If the film is unobjectionable and cannot
constitutionally be restricted under Article 19(2), freedom of expression
cannot be sup- pressed on account of threat of demonstration and proces- sions
or threats of violence. That would tentamount to negation of the rule of law
and a surrender to black mail and intimidation. It is the duty of the State to
protect the freedom of expression since it is a liberty guaranteed against the
State. The State cannot plead its inability to handle the hostile audience
problem. It is its obligatory duty to prevent it and protect the freedom of
expression.
In
this case, two Revesing Committees have approved the film. The members thereof
come from different walks of life with variegated experiences. They represent
the cross sec- tion of the community. They have judged the film in the light of
the objectives of the Act and the guidelines pro- vided for the purpose. We do
not think that there is any- thing wrong or contrary to the Constitution in
approving the film for public exhibition. The producer or as a matter of fact
any other person has a right to draw attention of the Government and people
that the existing method of reserva- tion in education institutions overlooks
merits. He has a right to state that reservation could be made on the basis of
economic backwardness to the benefit of all sections of community. Whether this
view is right or wrong is another matter altogether and at any rate we are not
concerned with its correctness or usefulness to the people. We are only
concerned whether such a view could be advocated in a film.
To say
that one should not be permitted to advocate that view goes against the first
principle of our democracy.
We end
here as we began on this topic. Freedom of ex- pression which is legitimate and
constitutionally protected, cannot be held to ransom, by an intolerant group of
people.
The
fundamental freedom 231 under Article 19(1)(a) can be reasonably restricted
only for the purposes mentioned in Articles 19(2) and the restriction must be
justified on the anvil of necessity and not the quicks and of convenience or
expediency. Open criticism of Government policies and operations is not a
ground for restricting expression. We must practice tolerance to the views of
others. Intolerance is as much dangerous to democracy as to the person himself.
In the
result, we allow these appeals, reverse the judgment of the High Court and dismiss
the writ petitions of the respondents. In the circumstances of the case,
however, we make no order as to costs.
Y.L.
Appeals allowed.
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