Life
Insurance Corpn. of India & Ors Vs. Prof. Manubhai D. Shah [1992] INSC 177
(22 July 1992)
Ahmadi,
A.M. (J) Ahmadi, A.M. (J) Punchhi, M.M.
CITATION:
1993 AIR 171 1992 SCR (3) 595 1992 SCC (3) 637 JT 1992 (4) 181 1992 SCALE (2)60
ACT:
Constitution
of India: Part III-Fundamental Rights-
Article 19(1)(a) & 19(2).
Freedom
of Speech and Expression-Scope of-Includes freedom to circulate and propagate
views through electronics media subject to reasonable restrictions-Right
extends to use the media to answer the criticism levelled against the
propagated view.
Publication
of a research paper by Executive Trustee of Consumer Education and Research
Centre-Paper criticising premium policy adopted by Life Insurance
Corporation-Counter prepared by a member of LIC as well as rejoinder prepared
by Executive Trustee Published in a newspaper-LIC also publishing its counter
in its own magazine-Refusal to publish Executive Trustee's rejoinder in its mazazine
on the ground that it was In - House magazine-Held refusal by LIC to publish
rejoinder in its magazine was arbitrary and violative of Article 14 and
19(1)(a).
Freedom
of expression through movies-Film-Right to telecast on television-Guidelines
for film certification- Documentary film on Bhopal Gas Disaster-Film awarded
national award and granted `U' Certificate-Refusal by Doordarshan to telecast
the film-Held film maker has a right to take cast the bilm-Refusal to telecast
should be justified by law under Article 19(2)-Onus lies on the party who
refuses to telecast to show that the film does not conform to requirements of
law-Grounds of refusal held not justified-Doordarshan being State controlled
agency cannot refuse telecast of film except on valid grounds.
Article
12-State-Life Insurance Corporation in State.
Constitution-Interpretation
of-Provisions should be construed broadly unless the context otherwise
requires- Scope of provisions, particularly Fundamental Rights should not be
cut down by restricted approach.
596
Doctrine of Fairness.
Doctrine
of Prior Restraint.
Cinematograph
Act, 1952: Sections 5A-5B.
HEAD NOTE:
The
respondent, the executive trustee of the Consumer Education & Research
Centre Ahmedabad, after undertaking research into the working of the Life
Insurance Corporation (LIC) published and circulated a study paper titled
"A fraud on policy holders-a shocking story" portraying the
discriminatory practice adopted by the LIC which adversely affected the
interest of a large number holders. The underlying idea was to point out that
unduly high premiums were charged by the LIC from those taking out life
insurance policies thereby denying access to insurance coverage to a vast
majority of people who cannot afford to pay the high premiums. A member of the
LIC prepared a counter to the respondent's study paper and published the same
as an article titled `LIC and its policy holders' in the "Hindu", a
daily newspaper, challenging the conclusions reached by the respondent in his
study paper. The respondent prepared a rejoinder `Raw deal for policy Holders' which
too was published in the same newspaper.
Thereafter,
the LIC published its member's article which was in the nature of a counter to
the respondent's study paper in its magazine `Yogakshema'. On the respondent
learning about the same, he requested that in fairness his rejoinder which was
already published in the Hindu should also be published in the said magazine to
present a complete picture to the reader. The LIC refused his request on the
ground that their magazine was an in-house magazine circulated amongst
subscribers who were policy holders, officers, employees and agents of the
Corporation and it is not put up in the market for sale to the general public.
The
respondent filed a writ petition in the Gujarat High Court which came to the
conclusion that the LIC's stand that the magazine was an in-house magazine was
untenable because it was available to anyone on payment of subscription; and it
invited articles for publication therein from members of the public. Assuming
that the magazine was an in-house magazine the corporation, which was a State
within the meaning of Article 12, cannot under the guise of publication of an
in-house magazine violate the fundamental right of the respondent. Accordingly,
the High Court held 597 the refusal by LIC to publish respondent's rejoinder
was arbitrary and violative of Article 14 and 19(1)(a). Against the decision of
the High Court this appeal is filed.
In the
connected appeal the respondent produced a documentary film on the Bhopal Gas
Disaster titled "Beyond Genocide" which was awarded the Golden Lotus,
being the best non-feature film of 1987. At the time of the presentation of
awards the Central Minister for Information
short
films would be telecast on Doordarshan. The respondent submitted his film to Doordarshan
for telecast but Doordarshan refused to telecast the same on the grounds that (i)
the film was out dated (ii) it had lost its relevance (iii) it lacked
moderation and restraint (iv) it was not fair and balanced (v) political
parties have raised various issues concerning the tragedy and (vi) claims for
compensation by victims were sub-judice.
The
respondent filed a writ petition challenging the refusal to telecast his film
on the ground of violation of his fundamental right under Article 19(1)(a) of the
Constitution and for a mandamus to Doordarshan to telecast the same. The Union
of India contested the petition by stating that although a decision was taken
to arrange a fixed fortnigtly telecast of award winning documentaries, no
decision was taken to telecast all national award winning documentaries; that
the parameters applied for selection of a film for national award were not the
same as applied by the Film Selection Committee of Doordarshan for selection of
a film for telecast; and the respondent's film which was previewed by a duly
constituted Screening Committee was not found to meet the requirements for
telecast on Doordarshan.
The
High Court held that no restriction could be placed on the fundamental right
guaranteed by Article 19(1)(a) of the Constitution save and except by law
permitted by Article 19(2); that the respondent's right under Article 19(1)(a)
of the Constitution obligated Doordarshan to telecast the film since the
guidelines or norms on which the refusal was based executive in character and
not law within the meaning of Article 19(2) of the Constitution. Accordingly,
it directed Doordarshan to telecast the film, "Beyond Genocide" at a
time and date convenient to it keeping in view the public interest and on such
terms and conditions as it would like to impose in accordance with law.
In
appeal to this Court it was contended for Doordarshan, (i) that 598 sub-section
(2) of Section 5B of the Cinematograph Act, 1952 empowers the Central
Government to issue directions setting out the principles which shall guide the
authority competent to grant certificates under the Act in sanctioning films
for public exhibition and since the exemption granted to Doordarshan under
Section 9 of the Act from the provisions relating to certification of films in
Part II of the Act and Rules made thereunder by notification dated 16th
October, 1984 is subject to the condition that while clearing programmes for
telecast Doordarshan shall keep in view the film certification guidelines
issued by the Central Government under Section 5B of the Act, the guidelines
clearly have statutory favour and would, therefore, fall within the protective
umbrella of Article 19(2);(ii) the High Court completely misdirected itself in
not appreciating that these norms were fixed keeping in mind the requirement of
Section 5B of the Act which section was consistent with Article 19(2),
therefore the High Court was wrong in brushing them aside as mere departmental
executive directions.
Dismissing
the appeals, this Court
HELD:
1. A constitutional Provision is never static, it is ever evolving and ever
changing and, therefore, does not admit of a narrow, pedantic or syllogistic
approach. The Constitution makers employed a broad pharaseology while drafting
the fundamental rights so that they may be able to cater to the needs of a
changing society. Therefore, constitutional provisions in general and
fundamental rights in particular must be broadly construed unless the context
otherwise requires. The scope and ambit of such provisions, in particular the
fundamental rights, should not be cut down by too astute or too restricted an
approach. [606E, 607E-F] Sakal Paper (P) (Ltd. v. Union of India [1962] 3
S.C.R. 842 A.I.R. 1962 S.C. 305, referred to.
Dennis
v. United States, 341 U.S. 494; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 and Mutual Film Corporation v. Industrial
Commission of Ohio, 236 U.S. 230; referred to.
2. The
words `freedom of speech and expression ' must be broadly construed to include
the freedom to circulate one's views by words of mouth or in writing or through
audio-visual instrumentalities. therefore, includes it the right propagati
one's the views through the print media or 599 through any other communication
channel e.g. the radio and the television. The print media, the radio and the
tiny screen play the role of public educators, so vital to the growth of a
healthy democracy. Every citizen of this free country, therefore, has the right
to air his or her views through the printing and/or the electronic media
subject of course to permissible restrictions imposed under Article 19(2) of
the Constitution. The right extends to the citizen being permitted to use the
media to answer the criticism levelled against the view propagated by him. [607
G-H, 608 A,E] Romesh Tappar v. The State of Madras, [1950] S.C.R. 495; Sakal Papers (P) Ltd. v. Union of India, [1962]
3 S.C.R. 842-A.I.R. 1962 S.C. 305; Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. etc. etc. v. Union of India & Ors. etc. etc., [1985] 2 S.C.R. 287;
Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana & Ors., [1988] 3
S.C.C. 410 and S. Rangarajan v. P. Jagjivan Ram, [1989] 2 S.C.C. 574, referred
to.
3. No
serious exception can be taken to the approach which commended to the High
Court. The LIC is a State within the meaning of Article 12 of the Constitution.
It is created under an Act, namely, the Life Insurance Corporation Act, 1956,
which requires that it should function in the best interest of the community.
The community is, therefore, entitled to know whether or not this requirement
of the Statute is being satisfied in the functioning of the LIC. The
respondent's effort in preparing the study paper was to bring to the notice of
the community that the LIC had strayed from its path by pointing out that its
premium rates were unduly high when they could be low if the LIC avoided
wasteful indulgences. The endeavor was to enlighten the community of the
drawbacks and shortcomings of the corporation and to pin-point the areas where
improvement was needed and was possible. By denying information to the
consumers as well as other subscribers that LIC cannot be said to be acting in
the best interest of the community. [612A, E-H, 613 A,D] Sukhdev Singh &
Ors. v. Bhagatram Sardar Singh, [1975] 1 S.C.C. 421, relied on.
4. By
refusing to print and publish the rejoinder the LIC had violated the
respondent's fundamental right. The rejoinder to their acticle is not in any
manner prejudicial to the members of the community nor it is based on imaginery
or concocted material. It does not contain any material which can be branded as
offensive, in the sense that it would fall within anyone 600 of the restrictive
clauses of Article 19(2). That being so on the fairness doctrine the LIC was
under an obligation to publish the rejoinder since it had published its counter
to the study paper. [614-C, 613-D, 612A, 613-E]
5. The
LIC' s refusal to publish the rejoinder in its magazine financed from public
funds is an attitude which can be described as both unfair and unreasonable;
unfair because fairness demanded that both view points were placed before the
readers, however, limited be their number, to enable them to draw their own
conclusions and unreasonable because there was no logic or proper justification
for refusing publication. A monopolistic state instrumentality which survives
on public funds cannot act in an arbitrary manner on the specious plea that the
magazine is an in- house one and it is a matter of its exclusive privilege to
print or refuse to print the rejoinder. [613 B-D]
6. A wrong
doer cannot be heard to say that its persistent refusal to print and publish
the article must yield the desired result, namely to frustrate the respondent.
The Court must be careful to see that it does not, even unwittingly, aid the
effort to defeat a party's right. However, in order that the reader knows and
appreciates why the rejoinder has appeared after such long years it is directed
that the LIC will, while publishing the rejoinder print an explanation and an
apology for the delay. [614 C-D]
7. Speech
is God's gift to mankind. Through Speech a human being conveys his thoughts,
sentiments and feeling to others. Freedom of speech and expression is thus a
natural right which a human being acquires on birth. It is, therefore, a basic
human right. Thus freedom to air one's views is the life line of any democratic
institution and any attempt to stifle, suffocate or gag this right would sound
a death-knell to democracy and would help usher in autocracy or dictatorship.
Efforts by intolerant authorities to curb or suffocate this freedom have always
been firmly repelled.
More
so when public authorities have betrayed autocratic tendencies. [605G, 608-B,
611E] Universal Declaration of Human Rights (1948), referred to.
8. The
feedom conferred on a citizen by Article 19(1)(a) includes the freedom to
communicate one's ideas or thoughts through a newspaper, a magazine or a movie.
Although
movie enjoys that freedom it must be remembered that movie is a powerful mode
of communication and has the 601 capacity to make a profound impact on the
minds of the viewers and it is, therefore, essential to ensure that the meassage
it conveys is not harmful to the society or even a section of the society.
Censorship by prior restraint, therefore, seems justified for the protection of
the society from the ill-effects that a motion picture may produce if
unrestricted exhibition is allowed. Censorship is thus permitted to protect
social interests enumerated in Article 19(2) and section 5B of the
cinematograph Act. But such censorship must be reasonable and must answer the
test of Article 14 of the Constitution. [623 E-G]
9.
Once it is recognised that a film-maker has a fundamental right under Article
19(1)(a) to exhibit his film, the party which claims that it was entitled to
refuse enforcement of this right by virtue of law made under Article 19(2), the
onus lies on that party to show that the film did not conform to the
requirements of that law, in the present case the guidelines relied upon. [620
D-E]
10.
The respondent had a right to convey his perception of the gas disaster in
Bhopal through the documentary film prepared by him. The film not only won the
Golden Lotus award but was also granted the 'U' Certificate by the censor. It
is an appraisal of what exactly transpired in Bhopal on the date the gas leak
occurred. Therefore, the respondent cannot be accused of having distorted the
events subsequent to the disaster. [624 E-F] Merely because it is critical of
the State Government is no reason to deny selection and exhibition of the film.
So
also pendency of claims for compensation does not render the matter sub-judice
so as to shut out the entire film form the community. In fact the community was
keen to know what actually had happened, what is happening, what remedial
measures the State authorities are taking an what are the likely consequences
of the gas leak. To bring out the inadequacy of the State effort or the
indifference of the officer, etc,. cannot amount to an attack on any political
party its the criticism is genuine and objective and made in good faith. If the
norm for appraisal was the same as applied by the censors while granting the
'U' Certificate, it is difficult to understand how Doordarshan could refuse to
exhibit it. It is not that it was not sent for being telecast soon after the
disaster that one could say that it is outdated or has lost relevance. [624
G-H, 625 A-B] 602 In the circumstances it cannot be said that the film was not
consistent with the accepted norms. Doordarshan being a State controlled agency
funded by public funds could not have denied access to the screen to the
respondent except on valid grounds. [625-C] K.A. Abbas v. The Union of India,
[1971] 2 S.C.R. 446;
Ramesh
v. The Union of India, [1988] 1 S.C.C. 668 and S. Rangarajan v. P. Jagivan Ram,
[1989] 2 S.C.C. 574, relied on.
New
York Times Company v. The Union States, 403 U.S.
713, referred to. & CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1254 of
1990.
From
the Judgment and Order dated 17.6.80 of the Gujarat High Court in Special Civil
Application No. 2711 of 1979.
WITH Civil
Appeal No. 2643 of 1992.
From
the Judgment and Order dated 27.9.90 of the Delhi High Court in Civil Writ
Petition No. 212 of 1989.
K.T.S.
Tulsi, Additional Solicitor General, P.P. Rao, Kailash Vasdev, Ms. Alpana Kirpal,
A. Subba Rao, Hemant Sharma and C.V.S. Rao for the Appellants.
P.H. Parekh,
B.K. Brar, Ashok Aggarwal and P.D. Sharma for the Respondent.
The
Judgment of the Court was delivered by AHMADI, J. Special leave granted in
SLP(C) No. 339 of 1991.
These
two appeals though arising out of different circumstances and concerning
different parties, relate to the scope of our constitutional policy of freedom
if speech and expression guaranteed by Article 19(1)(a) of the Constitution.
The importance of the constitutional question prompted this Court to grant
special leave to appeal under Article 136 of the Constitution. We may properly
begin the discussion of this judgment by stating the 603 factual background of
the two cases in the light of which we are required to examine the scope of the
constitutional liberty of speech and expression.
Civil
Appeal No.1254/80 arises out of the decision of the Gujarat High Court in
Special Civil Application No. 2711 of 1979 decided by a Division Bench on 17th
June, 1980. The respondent, the executive trustee of the Consumer Education
& Research Centre (CERC), Ahmedabad, after undertaking research into the
working of the Life Insurance Corporation (LIC) published on 10th July, 1978 a
study paper titled "A fraud on policy holder - a shocking story".
This study paper portrayed the discriminatory practice adopted by the LIC which
adversely affected the interest of a large number of policy holder. This study
paper was widely circulated by the respondent. Mr. N.C. Krishnan, a member of
the LIC prepared a counter of the respondent's study paper and published the
same as an article in the "Hindu", a daily newspaper, challenging the
conclusions reached by the respondent in his study paper. The respondent
prepared a rejoinder which was published in the same newspaper. The LIC
publishes a magazine called the 'Yogakshema' for informing its members, staff
and agents about its activities. It is contention of the LIC that this magazine
is an in-house magazine and is not put in the market for sale to the general
public. Mr. Krishnan's article which was in the nature of a counter to the
respondent's study paper was published in this magazine. The respondent
thereupon requested the LIC to publish his rejoinder to the said article in the
said magazine but his request was spurned. The respondent thereafter met the
Chairman of the LIC and requested him to revise the decision and to publish the
article in the magazine but to no avail. Thereupon he filed the petition
contending that the refusal to publish his rejoinder in the magazine violated
his fundamental right under Article 14 and 19(1)(a) of the Constitution. The
High Court came to the conclusion that the LIC's stand that the magazine was an
in-house magazine was untenable for two reasons, namely (1) it was available to
anyone on payment of subscription; and (2) in invited articles for publication
therein from members of the public. The High Court took the view that merely
because the magazine finds it circulation among officers, employees and agents
of the Corporation, it does not acquire the character of an in-house magazine
since the same can be purchased by any member of the public on payment of
subscription and members of the public are invited to contribute articles for
publication in the said magazine. It further held that assuming that the
magazine was an in-house magazine as contended by the 604 LIC, the Corporation
cannot under the guise to publication of an in-house magazine violate the
fundamental right of the respondent. Taking note of the fact that the LIC was a
State within the meaning of Article 12 of the Constitution and the in-house
magazine was published with the aid of public funds and public money, the High
Court held that in the interest of democracy and free society the magazine
should be available to both, an admirer and a critic, for dissemination of
information. In this view of the matter the High Court concluded that the LIC
had violated the respondent's fundamental right under Article 19(1)(a) of the
Constitution by refusing to publish his rejoinder to Mr. Krishnan's counter to
his study paper. It also concluded that the refusal of the LIC was arbitrary
and violative of Article 14 of the Constitution as well. The High Court,
therefore, directed the LIC to publish in the immediate next issue of Yogakshema
the respondents' rejoinder to Mr. krishnan's reply to his study paper of 10th July, 1978. This view of the Gujarat High
Court is assailed by the LIC in the first appeal.
In the
order appeal the facts reveal that Shri Tapan Bose, Managing Trustee of the
respondent trust, had produced a documentary film on the Bhopal Gas Disaster
title "Beyond Genocide". This film was awarded the Golden Lotus,
being the best non-feature film of 1987. The respondent contended that at the
time of the presentation of awards the Central Minister for Information &
Broadcasting had made a declaration that the award winning short films will be
telecast on Doordarshan. The respondent submitted for telecast his film to Doordarshan
but Doordarshan refused to telecast the same on the ground : "the contents
being updated do not have relevance now for the telecast". The respondent
represented to the Minister for Information & broadcasting, but to no
avail. He, therefore, filed the writ petition, being Civil Writ No. 212 of
1989, challenging the refusal on the ground of violation of his fundamental
right under Article 19(1)(a) of the Constitution and for a mandamus to Doordarshan
to telecast the same. In the counter filed to the writ petition it was contended
that although a decision was taken to arrange a fixed fortnightly telecast of
award winning documentaries. It was emphasied that the parameters applied for
selection of a film for national award winning documentaries. It was emphasised
that the parameters applied for selection of a film for national award were not
the same as applied by the Film Selection Committee of Doordarshan for
selection of a film for telecast. Emphasis was laid by Doordarshan on socially
relevant films which were fair and balanced and the respondent's film which was
605 previewed by a duly constituted Screening Committee was not found to meet
that requirement for telecast on Doordarshan.
The
Ministry of Information & Broadcasting had reconsidered the matter in the
light of the respondent's representation but did not see any reason to depart
from the view taken by the Screening Committee. The Screening Committee had
founded its decision on the accepted norms for display of the documentary films
on Doordarshan and since the respondent's film did not satisfy the norms for
the reason that it lacked moderation and restraint in judging things and
expressing opinions, it was found not suitable for telecast. It also took into
consideration the fact that while most of the claims for compensation for the
victims of Bhopal Disaster were sub-judice and political parties were raising
certain issue, it was inexpedient and unwise to telecast the film. It was also
feared that it would only end in further vitiating the atmosphere and will
serve no social purpose. The High Court came to the conclusion that the repondent's
right under Article 19(1)(a) of the Constitution obligated Doordarshan to
telecast the film since the guidelines or norms on which the refusal was based
were purely executive in character and not law within the meaning of Article
19(2) of the Constitution. It, therefore, came to the conclusion that no
restriction could be placed on the fundamental right guaranteed by Article
19(1)(a) of the Constitution save and except by law permitted by Article 19(2)
and not by executive or non- statutory guidelines on the basis of which Doordarshan
had refused to telecast the film. It took the view that these norms were for
internal guidance and cannot interfere with the fundamental right guaranteed by
Article 19(1)(a) of the constitution. It, therefore, directed Doordarshan to
telecast the film "Beyond Genocide" at a time and date convenient to
it keeping in view the public interest and on such terms and conditions as it
would like to impose in accordance with law. It is against this direction of
the High Court that the second the second appeal is preferred.
Speech
is God's gift to mankind. Through speech a human being conveys his thoughts,
sentiments and feelings to others. Freedom of speech and expression is thus a
natural right which a human being acquires on birth. It is, therefore, a basic
human right. "Everyone has the right to freedom of opinion and expression;
the right includes freedom to hold opinions without interference and to seek and
receive and impart information and ideas through any media and regardless of
frontiers" proclaims the Universal Declaration of Human Rights (1948). The
People of India declared in the Preamble of the Constitution which they gave
into them- 606 selves their resolve to secure to all citizens liberty of
thought and expression. This resolve is reflected in Article 19(1)(a) which is
one of the articles found in Part III of the Constitution which enumerates the
Fundamental Rights. That article reads as under :
"19(1).
All citizens shall have the right- (a) to freedom of speech and
expression;" Article 19(2) which has relevance may also be reproduced:
"19(2).
Nothing sub-clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, insofar as such law impose
reasonable restrictions on the exercise of the right conferred by the said sub-
clause in the interests of [the 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." A constitutional provision is never static, it
is over evolving and ever changing and, therefore, does not admit of a narrow,
pedantic or syllogistic approach. If such ;an approach had been adopted by the
American Courts, the First Amendment-(1791)- "Congress shall make no law
abridging the freedom of speech, or of the press" - would have been
restricted in its application to the situation then obtaining and would not
have catered to the changed situation arising on account of the transformation
of the print media. It was the broad approach adopted by the court which
enabled them to chart out the contours of ever expanding notions of press freedom.
In Dennis v. United States, 341 U.S. 494, Justice Frankfurtur observed :
"...The
language of the First Amendment is to be read not as barren words found in a
dictionary but as symbols of historic experience illuminated by the
presuppositions of those who employed them." Adopting this approach in
Joseph Burstyn. Inc. v. Wilson 343 U.S. 495 the Court rejected its earlier
determination to the contrary in Mutual Film Corporation v. Industrial
Commission of Ohio, 236 U.S. 230 and concluded that expression through motion
pictures is included within the protection of the First Amendment. The Court
thus expanded the reach of the First 607 Amendment by placing a liberal
construction on the language of that provision. It will thus be seen that the
American Supreme Court has always placed a broad interpretation on the
constitutional provisions for the obvious reason that the constitution has to
serve the needs of an ever changing society.
The
same trend is discernible from the decisions of the Indian Courts also. It must
be appreciated that the Indian Constitution has separately enshrined the
fundamental rights in Part III of the Constitution since they represent the
basic values which the People of India cherished when they gave unto themselves
the constitution for free India. That was with a view to ensuring that their honour,
dignity and self respect will be protected in free India. They had learnt a
bitter lesson from the behaviour of those in authority during the colonial
rule. They were, therefore, not prepared to leave anything to chance. They,
therefore, considered it of importance to protect specific basic human rights
by incorporating a Bill of Rights in the Constitution in the form of
Fundamental Rights. These fundamental rights were intended to serve generation
after generation. They had to be stated in broad terms leaving scope for
expansion by courts. Such an intention must be ascribed to the Constitution
makers since they had themselves made provisions in the Constitution to bring
about a socio- economic transformation. That being so, it is reasonable to
infer that the Constitution makers employed a broad phraseology while drafting
the fundamental rights so that they may be able to cater to the needs of a
changing society. It, therefore, does not need any elaborate argument to uphold
the contention that constitutional provisions in general and fundamental rights
in particular must be broadly construed unless the context otherwise requires.
It seems well settled from the decisions referred to at the Bar that
constitutional provisions must receive a broad interpretation and the scope and
ambit of such provisions in particular the fundamental rights, should not be
cut down by too astute or too restricted an approach.
See Sakal
Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842 = AIR 1962 SC 305.
The
words 'freedom of speech and expression' must, therefore, be broadly construed
to include the freedom to circulate one's views by words of mouth or in writing
or through audio-visual instrumentalities. It, therefore, includes the right to
propagate one's views through the print media or through any other
communication channel e.g. the radio and the television. Every citizen of this
free country, therefore, has the right to air 608 his or her views through the
printing and/or the electronic media subject of course to permissible
restrictions imposed under Article 19(2) of the Constitution. The print media,
the radio and the tiny screen play the role of public educators, so vital to
the growth of a healthy democracy.
Freedom
to air one's view is the life line of any democratic institution and any
attempt to stifle, suffocate or gag this right would sound a death-knell to
democracy and would help usher in autocracy or dictatorship. It cannot be
gainsaid that modern communication mediums advance public interest by informing
the public of the events and developments that have taken place and thereby
educating the voters, a role considered significant for the vibrant functioning
of a democracy. Therefore, in any set up, more so in a democratic set up like
ours, dissemination of news and views for popular consumption is a must and any
attempt to deny the same must be frowned upon unless it falls within the
mischief of Article 19(2) of the Constitution. It follows that a citizen for
propagation of his or her ideas has a right to publish for circulation his
views in periodicals, magazines and journals or through the electronic media
since it is well known that these communication channels are great purveyors of
news and views and make considerable impact on the minds of the readers and
viewers and are known to mould public opinion on vital issues of national
importance. Once it is conceded, and it cannot indeed be disputed, that freedom
of speech and expression includes freedom of circulation and propagations of
ideas, there can be no doubt that the right extends to the citizen being
permitted to use the media to answer the criticism levelled against the view
propagated by him. Every free citizen has an undoubted right to lay what
sentiments he pleases before the public; to forbit this, except to the extent
permitted by Article 19(2), would be an inroad on his freedom. This freedom
must, however, be exercised with circumspection and care must be taken not to
trench on the rights of other citizens or to jeopardise public interest. It is
manifest from Article 19(2) that the right conferred by Article 19(1)(a) is
subject to imposition of reasonable restrictions in the interest of, amongst
others, public order, decency or morality or in relation to defamation or
incitement to an offence. It is, therefore, obvious that subject to reasonable
restrictions placed under Article 19(2) a citizen has a right a publish,
circulate and disseminate his views and any attempt to thwart or deny the same
would offend Article 19(1)(a).
We may
now refer to the case law on the subject. In Romesh Tappar v. The State of
Madras, [1950] SCR 495 this Court held that the freedom 609 of speech and
expression includes freedom of propagation of ideas and this freedom is ensured
by the freedom of circulation. It pointed out that freedom of speech and
expression are the foundation of all democratic organisations and are essential
for the proper functioning of the processes of democracy. This view was
reiterated in Sakal Papers Pvt. Ltd. (supra) wherein this Court observed that
the freedom of speech and expression guaranteed by Article 19(1)(a) includes
the freedom of the Press. For propagating his ideas a citizen had the right to
publish them, to disseminate them and to circulate them, either by word of
mouth or by writing. In Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors.
etc. etc. v. Union of India & Ors. etc. etc., [1985] 2 SCR 287 this Court
after pointing out that communication needs in a democratic society should be
met be the extention of specific rights e.g., the right to be informed, the
right to inform, the right to privacy, the right to participate in public
communications, the right to communicate, etc., proceeded to observe at page
316 as follow :
"In
today's free world freedom of Press is the heart of social and political
intercourse. The press has now assumed the role of the public educator making
formal and non formal education possible in large scale particularly in the
developing world where television and other kinds of modern communication are
not still available for all sections of society. The purpose of the press is to
advance the public interest by publishing facts and opinions without which a
democratic electorate cannot make responsible judgments.
Newspaper
being surveyors of news and views having a bearing on public administration
very often carry material which would not be palatable to Governments and other
authorities. The authors of the article which are published in the newspapers
have to be critical of the action of the Government in order to expose its
weaknesses. Such articles tend to become an irritant or even a threat to
power." This Court pointed out that the constitutions guarantee of the
freedom of speech and expression is not so much for the benefit of the press as
it is for the benefit of the public. The people have a right to be informed of
the developments that take place in a democratic process and the press plays a
vital role in disseminating this information.
Neither
the Government nor any instrumentality of the Government or any public sector
undertaking run with the help of public funds can shy away from 610 articles
which expose weaknesses in its functioning and which is given cases pose a
threat to their power by attempting to create obstacles in the information
percolating to the members of the community. In Odyssey Communications Pvt.
Ltd. v. Lokvidayan Sanghtana & Ors., [1988] 3 SCC 410 a public interest
litigation was commenced under Article 226 of the constitution to restrain the
authorities from telecasting the serial 'Honi Anhony' on the plea that it was
likely to spread false and blind beliefs and superstition amongst the members
of the public. The high Court by an interim injunction restrained the authorities
from telecasting the serial which led the producer thereof to approach this
Court under Article 136 of the Constitution. This Court while allowing the
appeal held that the right of a citizen to exhibit films on the Doordarshan
subject to the conditions imposed by the Doordarshan being a part of the
fundamental right of freedom of expression could be curtailed only under
circumstances set out in Article 19(2) and in no other manner. The right to
exhibit the film was similar to the right of a citizen to publish his views
through any other media such as newspapers, magazines, advertisement hoardings,
etc. More recently in S. Rangarajan v. P. Jagjivan Ram, [1989] 2 SCC 574 this
Court was required to consider if the Madras High Court was justified in
revoking the 'U' certificate issued to a Tamil Film "Ore Oru Gramathile"
for public exhibition.
The
fundamental point urged before this Court was based on the freedom enshrined in
Article 19(1)(a). This court after pointing out the difference in language
between the U.S.
First
Amendment clause and Article 19(1)(a), proceeded to observe in paragraph 10 as
under :
"Movie
doubtless enjoys the guarantee 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 aerial
senses. The focussing 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 immediate influence on, and appeal for
everyone who sees it. In view of the scientific improvements in photography and
611 production the present movie is a powerful means of communication."
This Court emphasised that the freedom of expression means the right to express
one's opinion by words of mouth, writing, printing, picture or in any other
manner. It would thus include the freedom of communication and the right to
propagate or publish opinion. Concluding the discussion this Court observed in
paragraph 53 as under :
"We
end here as we began on this topic. Freedom of expression which is legitimate
and constitutionally protected, cannot be held to ransom by an intolerant group
of people. The fundamental freedom under Article 19(1)(a) can be reasonably
restricted only for the purposes mentioned in Article 19(2) and the restriction
must be justified on the anvil of necessity and not the quicksand 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." From the above resume of the case law it is evident that this
Court has always placed a broad interpretation on the value and content of
Article 19(1)(a), making it subject only to the restrictions permissible under
Article 19(2).
Efforts
by intolerant authorities to curb or suffocate this freedom have always been
firmly repelled. More so when public authorities have betrayed autocratic
tendencies.
The
question then is whether the respondent of the first appeal could as a matter
of right insist that the LIC print his rejoinder in their magazine. The LIC
denied this right on the ground that their magazine was an in-house magazine
circulated amongst subscribers who were policy holders, officer, employees and
agents of the corporation.
The
High Court rejected this contention on two grounds in the main, viz., (i) it is
available to anyone on payment of subscription and (ii) members of the public
are invited to contribute articles for publication. Even on the assumption that
it is an in-housing magazine the High Court observed 'under the pretext and
guise of publishing a house magazine, the Corporation cannot violate the
fundamental rights of the petitioner if he has any'. According to the High
Court a house magazine cannot claim any privilege against the fundamental 612
rights of a citizen. No serious exception can be taken to this approach which
commended to the High Court. In the first place it must be remembered that it
is not the case of the LIC that the respondent's study paper contains any
material which can be branded as offensive, in the sense that it would fall
within anyone of the restrictive clauses of Article 19(2). The study paper is a
research document containing statistical information to support the conclusions
reached by the author. The underlying idea is to point out that unduly high
premiums are charged by the LIC from those taking out life insurance policies
thereby denying access to insurance coverage to a vast majority of people who
cannot afford to pay the high premiums. The forwarding letter of 10th July,
1978 would show that copies of the study paper were circulated to a few
informed citizens with a request to disseminate the contents thereof through
articles, speeches, etc, Mr. N.C. Krishnan wrote a counter 'LIC and its policy
holders' which appeared in the Hindu of 6th November, 1978. This article begins
by adverting to the study paper circulated by the respondent.
The
respondent prepared a rejoinder 'Raw deal for Policy holders' which too was
published in the Hindu of 4th December, 1978. The LIC then printed and published the article of Mr. Krishnan in its
magazine Yogakshema (December 1978 issue). On the respondent learning about the
same, he requested that in fairness his rejoinder which was already published
in the Hindu should also be published in the said magazine to present a
complete picture to the reader. The LIC refused to accede to this request and
hence this litigation.
There
is no dispute that the LIC is a State within the meaning of Article 12 of the
Constitution, vide Sukhdev Singh & others v. Bhagatram Sardar Singh, [1975]
1 SCC 421.
It is
created under an Act, namely, the Life Insurance Corporation Act, 1956, and is
charged with the duty 'to carry on Life Insurance business, whether in or
outside India'. It is further charged with the
duty to so exercise its powers under the Act as 'to secure that life insurance
business is developed to the best advantage of the community' [Section 6(1)].
It is, therefore, obvious that the LIC must function in the best interest of
the community.
The
community is, therefore, entitled to know whether or not this requirement of
the statute is being satisfied in the functioning of the LIC. The respondent's
effort in preparing the study paper was to bring to the notice of the community
that the LIC had strayed from its path by pointing out that premium rates were
unduly high when they could be low if the LIC avoided wasteful indulgences. The
endeavour was to enlighten the community of the drawbacks and shortcomings 613
of the corporation and to pin-point the areas where improvement was needed and
was possible. With a view to stimulating a debate a study paper was prepared
and circulated to which Mr. Krishnan, a member of LIC, countered. Since Mr.
Krishnan had tried to demolish some of the points raised by the respondent in
his study paper, the respondent had publish a rejoinder in the Hindu. However,
the LIC refused to publish it in their magazine financed from public funds.
Such an attitude on the part of the LIC can be described as both unfair and
unreasonable; unfair because fairness demanded that both view points were
placed before the readers, however limited be their number, to enable them to
draw their own conclusions and unreasonable because there was no logic or
proper justification for refusing publication. A monopolistic state
instrumentality which survives on public funds cannot act in an arbitrary
manner on the specious plea that the magazine is an in-house one and it is a
matter of its exclusive privilege to print or refuse to print the rejoinder. It
is difficult to understand why the LIC should feel shy of printing the
rejoinder if it has nothing to fear. By denying information to the consumers as
well as other subscribers the LIC cannot be said to be acting in the best
interest of the community.
It is
not the case of LIC that the rejoinder to Mr. Krishnan's article is in any
manner prejudicial to the members of the community or that it is based on imaginery
or concocted material. That being so on the fairness doctrine the LIC was under
an obligation to publish the rejoinder since it had published Mr. Krishnan's
counter to the study paper. The respondent's fundamental right of speech and
expression clearly entitled him to insist that his views on the subject should
reach those who read the magazine so that they have a complete picture before
them and not a one sided or distorted one.
For
the above reasons we do not find any infirmity in the view taken by the High
Court on the LIC's obligation to print the rejoinder in its magazine. We must
clarify that we should not be understood as laying down an absolute proposition
that merely because the LIC is a State and is running a magazine with public
funds it is under an obligation to print any matter that any informed citizen
may forward for publication. The view that we are taking is in the peculiar
facts of the case.
It was
contended by the learned counsel for the LIC that since the rejoinder of the
respondent is to Mr.
Krishnan's
article printed in December 1978, the same has become stale by passage of time
and has lost its 614 relevance and hence this Court should annul the High
Court's directive to the LIC to print and publish the same in its magazine.
Counsel for the respondent submitted that the issued raised by the respondent
regarding high premium rates is still live as the situation has not improved
from what it was in 1978. It may be that the statistical information in the
rejoinder may be outdated but, contends the learned counsel, the issue that the
LIC is charging unduly high premium rates by refusing to prune its avoidable
expenses, is still relevant. He submits that if the court acedes to the
submission of the learned counsel for the LIC it would result in placing a
premium on the recalcitrant attitude of the LIC. We see force in this
submission. By refusing to print and publish the rejoinder the LIC had violated
the respondent's fundamental right. A wrong doer cannot be heard to say that
its persistent refusal to print and publish the article must yield the desired
result, namely to frustrate the respondent. The Court must be careful to see
that it does not, even unwittingly, aid the effort to defeat a party's right
Besides, if the respondent thinks that the issued is live and relevant and
desires its publication, we thing we must accept his assessment. However, in
order that the reader known and appreciates why the rejoinder has appeared
after such long years we direct that the LIC will, while publishing the
rejoinder as directed by the High Court, print an explanation and an apology
for the delay.
With
this modification, the LIC's appeal must fail.
That
takes us to the appeal involving Doordarshan's refusal to telecast the
documentary "Beyond Genocide" based on the Bhopal Gas Disaster. There
is no dispute that this film own the Golden Lotus award as the best non-feature
film of 1987. Yet, as the judgment of the High Court reveals, Doordarshan
refused to telecast it on the ground that "the contents being outdated do
not have relevance now for the telecast". It was emphasised that since the
parameters applied for selection of a film for national award were different
from those applied by the Film Selection Committee of Doordarshan when it comes
to selecting a film for telecast, the mere fact that a film has won a national
award is not sufficient for all national award winning films are not ipso facto
fit for telecast on television. It was said that unless a film is socially
relevant and fair and balanced it is not cleared for telecast. The film in
question did not satisfy this broad norm since it was found lacking in
moderation and restraint and hence it was not cleared for telecast. Lastly it
was said that since claims for compensation of the victims of the tragedy were
pending and political parties were raising 615 various issues, it was though
inexpedient to screen the film. It is, however, admitted in paragraph 2 of the
Special Leave Petition: "The documentary is an appraisal of what exactly
transpired in Bhopal on the date the gas leak
occurred". Admittedly the said film was granted a 'U' certificate by the
Central Board of Film Certification under section 5A of the Cinematograph Act,
1952 (hereinafter called 'the Act') In the High Court Doordarshan had by way of
an additional affidavit contended that before refusing to telecast the film,
its selection committee had examined the film with a view to finding out if it
conformed to the norms laid down for selection of a documentary film for
telecast.
These
norms on which reliance was placed have been extracted in the judgment of the
High Court and read as under:
"(i)
Criticism of friendly countries;
(ii)
Attack on religions and communities;
(iii)
Anything obscene and defamatory;
(iv)Incitement
of violence of anything against maintenance of law and order;
(v)
Anything amounting to contempt of court;
(vi)
Attack on a political party by name;
(vii) Hostial
criticism of any State or Centre."
The
High Court observes that these guidelines were purely departmental/executive
instructions or notings on the file for internal guidance which cannot curtail
the freedom conferred by Article 19(1)(a) and not being 'law' could not claim
the protection of Article 19(2) of the Constitution.
The
learned Additional Solicitor General submitted that the High Court had
completely misdirected itself in not apprediating that these norms were fixed
keeping in mind the requirement of Section 5B of the Act which section was was
consistent with Article 19(2) extracted earlier. We may now examine the scheme
of the Act.
The
Act was enacted to provide for the certification of cinematograph films for
exhibition and for regulating their exhibition. Section 3 of 616 the Act
empowers the Central Government to constitute a Board consisting of a Chairman,
five whole time members and six honorary members, three of whom must be persons
engaged or employed in the film industry, for the purpose of sanctioning films
for public exhibition. Section 3B empowers the Board so constituted to
constitute by special or general order an Examining Committee for the
examination of any film or class of films and a Revising Committee for
reconsidering, if necessary, the recommendations of the Examining Committee.
Any person desiring to exhibit any film has to make an application as provided
by Section 4 to the Board in the prescribed manner for a certificate and the Board
may after examination of the film section the film for unrestricted public
exhibition or sanction the film for public exhibition restricted to adults or
to direct the applicant to carry out such excisions and modifications in the
film as it thinks necessary before sanctioning it for unrestricted public
exhibition or for public exhibition restricted to adults or refuse to sanction
the film for public exhibition. Section 4A provides for the examination of
films by the Examining Committee and in the case of difference of opinions
amongst the member of the Examining Committee for further examination by the
Revising Committee.
Section
5A provides for certification of films. If after examination the Board consider
that the film is suitable for unrestricted public examination the Board
consider that the film is suitable for unrestricted public exhibition or that
although not suitable for such exhibition, it is suitable for public exhibition
restricted to adults, it is required to issue a 'U' certificate in the case of
the former and an 'A' certificate in the case of the latter. Section 5B
provides for laying down principles for guidance in the matter of certification
of films. This section to the extent relevant for our purpose reads as under :
"5B.
Principles for guidance in certifying films - (1) a film shall not be certified
for public exhibition if, in the opinion of the authority competent to grant
the certificate, the film or any part of it is against the interests of the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality, or involves
defamation or contempt of court or is likely to incite the commission of any
offence.
(2)
Subject to the provisions contained in sub- Section (1).... the Central
Government may issue such directions as it may think fit setting out the
principles which shall guide the 617 authority competent to grant certificates
under this Act in sanctioning films for public exhibition......" Section
5C provides for the constitution of appellate tribunals, whereas Section 5D
provides for appeals against the Board's decision refusing to grant the
certificate or granting only 'A' Certificate or directing the applicant to
carry out any excisions or modifications. In addition thereto revisional powers
have been conferred on the Central Government 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 enquire into the matter and make such order in
relation thereto as it thinks fit and where necessary give a direction that the
exhibition of the film should suspended for a period not exceeding two months.
Sub-section
(5) of section 6 lays down that the Central Government may, if satisfied in relation
to any film in respect of which an order has been made by an appellate tribunal
under Section 5B that it is necessary so to do in the interests of
(i) the
sovereignty and integrity of India or
(ii) the
security of the State or
(iii) friendly
relations with foreign State or
(iv) public
order or decency or morality, make such enquiry into the matter as it deems
necessary and pass such order in relation thereto as it thinks fit.
Thereupon
the Board must dispose of the matter in conformity with such order. Section 7
lays down the penalties for contravention of the requirements of Part II of the
Act. Section 8 confers power to make rules and Section 9 empowers the Central
Government to exempt the exhibition or export of any film or class of films from
any of the provisions of the said part or of any rules made thereunder subject
to such conditions and restrictions, if any, as it may impose. Part III of the
Act deals with the regulation of exhibitions by means of Cinematograph with
which we are not concerned. This in brief is the scheme of the statute.
In
exercise of power conferred by sub-section (2) of Section 5D of the Act the
Central Government issued a notification dated 7th January, 1978 laying down
the principles which should guide the authorities in sanctioning the films for
public exhibition. These guidelines came to be enlarged by a subsequent
notification dated 11th
August, 1989. The
guidelines laid down by these two notifications require the Board of Film
Certification to ensure that :
"(i)
Anti-social activities such as violence are not glorified or 618 justified:
(ii)
The modus-operandi of criminals or other visual or words likely to incite the
commission of any offence are not depicted:
(iia)Scenes
showing involvement of children in violence, either as victims or as
perpetrators, or showing child abuse or abuse of physically and mentally
handicapped persons are not presented in a manner which is needlessly prolonged
or exploitative in nature;
(iii)
Pointless or avoidable scenes of violence, cruelty and horror are not shown;
(iiia)
Scenes which have the effect of justifying or glorifying drinking and drug
addiction are not shown;
(iv)
Human sensibilities are not offended by vulgarity, obscenity and depravity;
(iva)
Visuals or words depicting women in any ignorable servility to man or
glorifying such servility as a praiseworthy quality in women are not presented;
(ivb)
Scenes involving sexual violence against women like attempt to rape, gangrape,
murder or any other form of molestation or scences of a similar nature shall be
avoided and if for any reason such things are found to be inevitable for the
sequence of a theme, they shall be properly scruitinised so as to ensure that
they do not create any adverse impression on viewers and the duration of the
scenes shall be reduced to the shortest span;
(v)
Visuals or words contemptuous of racial, religious or other groups are not
presented;
(va)
Visuals or words which promote communal obscurantist, antiscientific and
anti-national attitudes are not presented;
(vi)
The sovereignty and integrity of India is not called in question;
619
(vii) The security of the State is not jeopardised or endangered;
(viii)
Friendly relations with foreign States are not strained;
(ix)
Public order is not endangered;
(x)
Visuals or words involving defamation or contempt of court are not
presented."
In
following these guidelines or principles the Board of Film Certification has
been cautioned to ensure that the film is judged in its entirely from the point
of view of its overall impact and is judged in the light of contemporary
standards of the country and the people to which the film relates. Pursuant to
the issuance of these guidelines the Central Government issued a further
notification dated 16th October, 1984 in exercise of power under Section 9 of
the Act exempting all Doordarshan programs from the provisions relating to
certification of films in Part II of the Act and the Rules made thereunder
subject to the condition that while clearing programmers for telecast, the
Director General, Doordarshan or the condition that while clearing programs for
telecast, the Director General, Doordarshan or the concerned director, Doordarshan
Kendra shall Keep in view the film certification guidelines issued by the
Central Government to the Board of Film Certification under sub- section (2) of
Section 5B of the Act.
It may
be stated at the outset that the refusal to telecast was not based on the
ground that the list of award winning films was long and on the basis of inter-se
priority amongst such films and the time allocated for telecasting such films,
it was not possible to telecast the film. The grounds for refusal that can be
culled out from the pleadings were
(i) the
film is out dated
(ii)
it has lost its relevance
(iii) it
lacks moderation and restrainst
(iv) it
is not fair and balanced
(v) political
parties have been raising various issues concerning the tragedy and
(vi) claims
for compensation by victims are sub-judice.
In
addition to these grounds which can be culled out from the judgment of the High
Court, it is found from the affidavit filed in the present proceedings that the
film was not found fit for telecast as it was likely to create commotion to the
already charged atmosphere and because the film criticised the action of the
State Government, which was not permissible under the Guidelines. The last two
grounds were not before the High Court giving the impression that Doordarshan
is shifting its stand. We will however not brush them aside on such technical
considerations. We may however point out that Doordarshan had not placed any
material 620 suggesting why it things that the film does not conform to the
above stated norms.
Mr. Tulsi,
the learned counsel for Doordarshan, submitted that sub-section (2) of section
5B empowers the Central Government to issue directions setting out the
principles which shall guide the authority competent to grant certificates
under the Act in sanctioning films for public exhibition and since the
exemption granted to Doordarshan under Section 9 of the Act from the provisions
relating to certification of films in Part II of the Act and Rules made thereunder
by notification dated 16th October, 1984 is subject to the condition that while
clearing programs for telecast Doordarshan shall keep in view the film
certification guidelines issued by the Central Government under Section 5B of
the Act, the guidelines clearly have statutory flavour and would, therefore,
fall within the protective umbrella of Article 19(2) and the High Court was
wrong in brushing them aside as mere departmental/executive directions or notings
on a file not having the force of law. We will so assume for the purpose of
this appeal. However, once it is recognised that a film- maker has a
fundamental right under Article 19(1)(a) to exhibit his film, the party which
claims that it was entitled to refuse enforcement of this right by virtue of
law made under Article 19(2), the onus lies on that party to show that the film
did not conform to the requirements of that law, in the present case the
guidelines relied upon.
Two
question, therefore, arise (i) whether the film-maker had a fundamental right
to have his film telecast on Doordarshan and (ii) if yes, whether Doordarshan
has successfully shown that it was entitled to refuse telecast as the
guidelines were breached? In th United States prior restraint is generally regarded to be at serious odds
with the First Amendment and carries a heavy presumption against its
constitutionality and the authorities imposing the same have to discharge a
heavy burden on demonstrating its justification (See New York Times Company v.
The United States, 403 U.S. 713.
Traditionally
prior restraints. regardless of their from, are frowned upon as threats to
freedom of expression since they contain within themselves forces which if
released have the potential for imposing arbitrary and at times irrational
decisions. Since the function of any Board of Film Censors is to censor it, it
immediately conflicts with the Article 19(1) (a) and has to be justified as
falling within permissible restraint under Article 19(2) of the Constitution. A
similar question came up before this Court in K.A. Abbas v. The Union of 621
India, [1971] 2 SCR 446 wherein Chief Justice Hidayatullah exhaustively dealt
with the question of prior restraint in the context of the provisions of the
Constitution and the Act. The learned Chief Justice after setting out the
various provisions to which we have already adverted posed the questions; `How
far can these restrictions go and how are these to be imposed'? The documentary
film ` A tale of four cities' made by K.A. Abbas portrayed the contrast between
the luxuious life of the rich and the squalor and poverty of the poor in the
four principal cities of the country and included therein shots from the red
light district of Bombay showing scantily dressed women soliciting customers by
standing near the doors and windows. The Board of Film Censors granted `A'
certificate to the film and refused the `U' certificate sought by Abbas. This
was on the ground that the film dealt with relations between sexes in such a
manner as to depict immoral traffic in women and because the film contained
incidents unsuitable for young persons. Abbas challenged the Board's decision
on the ground (i) that pre-censorship cannot be tolerated as it was in
violation of the freedom of speech and expression and (ii) even if it is
considered legitimate it must be exercised on well-defined principles leaving
no room for arbitrary decisions. This Court held that censorship in Indian had
full justification in the field of exhibition of films since it was in the
interest of society and if the legitimate power in abused it can be struck
down. While dealing with the grounds on which the `U' certificate was refused,
the learned Chief Justice observed:
"The
task of the censor is extremely delicate and his duties cannot be the subject
of an exhaustive set of commands established by prior ratiocination.
But
direction is necessary of him so that he does not sweep within the terms of the
directions vast areas of thought, speech and expression of artistic quality and
social purpose and interest. Our standards must be so framed that we are not
reduced to a level where the protection of the least capable and the most
depraved amongst us determines what the morally healthy cannot view or read.
The standards that we set for our censors must make a 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 622 society. The requirements of
art and literature include within themselves a comprehensive view of social
life and not only in its ideal from and the line is to be drawn where the
average man moral man begins to feel embarrassed or disgusted at a naked
portrayal of life without the redeeming touch of art or genius or 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 importance and protection for
their growth."
In Ramesh
v. The union of India, [1988] 1 SCC 668 petition was filed to restrain the
screening of the serial `Tamas' on the ground that it violated Articles 21 and
25 of the Constitution and Section 5B of the Act. Based on the novel of Bhisma Sahni
this serial depicted the events that took place in Lahore immediately before the partition of
the country. Two Judges of the Bombay High Court saw the serial and rejected
the contention that it propagates the cult of violence. This Court after
referring to the observations of Hidayatullah, CJ. in K.A. Abbas proceeded to
state as under:
"It
is no doubt true that the motion picture is a powerful instrument with a much
stronger impact on the visual and aural sense of the spectators than any other
medium of communication; likewise, it is also true that the television, the
range of which has vastly developed in our country in the past few years, now
reaches out to the remotest corners of the country catering to the not so
sophisticated, literary or educated masses of people living in distant
villages. But the argument overlooks that the potency of the motion picture is
as much for good as for evil. If some scenes of violence, some nuances of expression
or some events in the film can stir up certain feelings in the spectator, an
equally deep strong, lasting and beneficial impression can be conveyed by
scenes revealing the machinations of selfish interest, scenes depicting mutual
respect and tolerance, scenes showing comradeship, help and kindness which
transcend the barriers of religion. Unfortunately, modern developments both in
the field of cinema as well as in the field of national and international
politics have rendered it inevitable for people 623 to face realities of
internecine conflicts, inter alia, in the name of religion. Even contemporary
news bulletins very often carry scenes of pitched battle or violence. What is
necessary sometimes is to penetrate behind the scenes and analyse the causes of
such conflicts. The attempt of the author in this film is to draw a lesson from
our country's past history, expose the motives of persons who operate behind
the scenes to generate and foment conflicts and to emphasise the desire of
persons to live in amity and the need for them to rise above religious barriers
and treat one another with kindness, sympathy and affection. It is possible
only for a motion picture to convey such a message in depth and if it is able
to do this, it will be an achievement of great social value." This Court
upheld the finding of the Bombay high
Court that the serial viewed in its entirety is capable of creating a lasting
impression of this massage of peace and co-existence and there is no fear of
the people being obsessed, overwhelmed or carried away by scenes of violence of
fanaticism shown in the film.
As
already pointed out earlier this Court in S. Rangarajan's case (supra) emphasised
that the freedom conferred on a citizen by Article 19(1)(a) includes the
freedom to communicate one's ideas or thoughts through a newspaper, a magazine
or a movie. Although movie enjoys that freedom it must be remembered that movie
is a powerful mode of communication and has the capacity to make a profound
impact on the minds of the viewers and it is, therefore, essential to ensure
that the message it conveys is not harmful to the society or even a section of
the society. Censorship by prior restraint, therefore, seems justified for the
protection of the society from the ill- effects that a motion picture may
produce if unrestricted exhibition is allowed. Censorship is thus permitted to
protect social interests enumerated in Article 19(2) and section 5B of the Act.
But such censorship must be reasonable and must answer the test of Article 14 of
the Constitution. In this decision the fundamental difference between the U.S. First Amendment and the freedom conferred by 19(1)(a),
subject to Article 19(2) has been highlighted and we need not dwell on the
same.
Every
right has a corresponding duty or obligation and so has the fundamental right
of speech and expression. The freedom conferred by 624 Article 19(1)(a) is,
therefore, not absolute as perhaps in the case of the U.S. First Amendment; it carries with it certain
responsibilities towards fellow citizens and society at large. A citizen who
exercises this right must remain conscious that his fellow citizen too has a
similar right.
Therefore,
the right must be so exercised as not to come to direct conflict with the right
of another citizen. It must, therefore, be so exercised as not to jeopardise
the right of another or clash with the paramount interest of the State or the
community at large. In India, therefore, our Constitution recognises
the need to place reasonable restrictions on grounds specified by Article 19(2)
and section 5B of the Act on the exercise of the right of speech and
expression. It is for this reason that this Court has recognised the need for
prior restraint and our laws have assigned a specific role to the censors as
such is the need in a rapidly changing societal structure. But since
permissible restrictions, albeit reasonable, are all the same restrictions on
the exercise of the fundamental right under Article 19(1)(a), such restrictions
are bound to be viewed as anathema, in that, they are in the nature of curbs or
limitations on the exercise of right and are, therefore, bound to be viewed
with suspicion, thereby throwing a heavy burden on the authorities that seek to
impose them. The burden would therefore, heavily lie on the authorities that
seek to impose them to show that the restrictions are reasonable are
permissible in law.
From
the above discussion it follows that unquestionably the respondent has a right
to convey his perception of the gas disaster in Bhopal through the documentary film prepared by him. This film not
only won the Golden Lotus award but was also granted the `U' certificate by the
censors. Even according to the petitioners `the documentary is an appraisal of
what exactly transpired in Bhopal on the
date the gas leak occurred. The petitioners, therefore, concede that the film
faithfully brings out the events that took place at Bhopal on that fateful night. Therefore,
the respondent cannot be accused of having distorted the events subsequent to
the disaster.
How
than can it be alleged that it is not fair and balanced or lacks in moderation
and restraint? It is nowhere stated which part of the film lacks moderation
and/or restraint nor is it shown how the film can be described as not fair and
balanced. Merely because it is critical of the State Government, perhaps
because of its incapacity to cope with unprecedented situation, is no reason to
deny selection and publication of the film. So also pendency of claims for
compensation does not render the matter subjudice so as to shut out the entire
film from the community. In fact the 625 community was keen to know what
actually has happened, what is happening, what remedial measures the State
Authorities are taking and what are the likely consequences of the gas leak. To
bring out the inadequacy of the State effort or the indifference of the
officers, etc., cannot amount to an attack on any political party if the
criticism is genuine and objective and made in good faith. If the norms for
appraisal was the same as applied by the censors while granting the `U'
certificate, it is difficult to understand how Doordarshan could refuse to
exhibit it. It is not that it was not sent for being telecast soon after the
disaster that one could say that it is outdated or has lost relevance. It is
even today of relevance and the press has been writing about it periodically.
The learned Additional Solicitor General was not able to point out how it could
be said that the film was not consistent with accepted norms setout earlier. Doordarshan
being a State controlled agency funded by public funds could not have denied
access to the screen to the respondent except on valid grounds. We, therefore,
see no reason to interfere with the High Court order.
In the
result both the appeals fail and are dismissed with costs.
T.N.A
Appeals dismissed.
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