Union of India Vs. K. M. Shankarappa [2000] INSC 591 (28 November 2000)
V.N. Khare
& S.N. Variava. S. N. VARIAVA, J.
L.I.T.J
This Appeal is against a Judgment dated 2nd April, 1990 in Writ Petition No. 4335 of 1979.
The
Respondent (herein) had challenged the virus of certain provisions of the
Cinematograph Act, 1952 (hereinafter called the said Act) as amended by Act No.
49 of 1981. In the Writ Petition the challenge was to the constitutional
validity of Sections 3(1), 4(1), 5D, 6(1) and 7(1). By the impugned Judgment
Sections 3(1), 4(1), 5D and 7(1) were held to be constitutionally valid.
However, portions of Section 6(1) have been held to be unconstitutional and
those portions have been struck down.
It must
be mentioned that, in the case of K. A. Abbas v. Union of India reported in AIR
1971 S.C. 481, the validity of certain provisions of the said Act had been
challenged, inter alia, on the ground that an appeal from a decision of the
Board should lie to a Court or to an independent Tribunal and not to the
Central Government. The Solicitor General made a statement that the Government
would appropriately amend the Act to set up a Tribunal. This Court commented as
follows:
"We
express our satisfaction that the Central Government will cease to perform
curial functions through one of its Secretaries in this sensitive field
involving the fundamental right of speech and expression. Experts sitting as a
Tribunal and deciding matters quasi-judicially inspire more confidence than a
Secretary and therefore, it is better that the appeal should lie to a court or
Tribunal." It is pursuant to this statement and in keeping with the
opinion expressed by this Court that the Tribunal was established. Section 5C
of the said Act now provided for an appeal to a Tribunal. Section 5D now
provided that the Government is to constitute an Appellate Tribunal. The
Tribunal is to consist of a Chairman and not more than four other members. The
Chairman of the Tribunal is to be a person who is a retired Judge of a High
Court, or a person who is qualified to be a Judge of a High Court. The other
members should be such persons who are qualified to judge the effect of the
film on the public. Thus the Tribunal is an expert body which has been set up
for the purposes of considering, amongst other things, the effect of the films
on the public. However the Government still sought to retain powers by enacting
Section 6(1). For a better understanding of the question under consideration,
it would be appropriate to set out Section 6(1). It reads as follows:
"6(1):
Notwithstanding anything contained in this part, the Central Government may, of
its own motion, at any stage, call for the record of any proceeding in relation
to any film which is pending before, or has been decided by, the Board, or as
the case may be, decided by the Tribunal (but for including any proceeding in
respect of any matter which is pending before the Tribunal) and after such
inquiry, into the matter as it considers necessary, make such order in relation
there to as it thinks fit, and the Board shall dispose of the matter in
conformity with such order:
Provided
that no such order shall be made prejudicially affecting any person applying
for a certificate or to whom a certificate has been granted, as the case may
be, except after giving him an opportunity for representing his views in the
matter:
Provided
further that nothing in this sub- section shall require the Central Government
to disclose any fact which it considers to be against public interest to
disclose." Thus even after establishing the Appellate Tribunal, by means
of Section 6(1), the Central Government sought to retain with it the power to
make such orders as it thought fit. In effect what the Government is seeking to
do is to exercise power of review or revision over the decisions of the Board
or the Tribunal. Mr. Goswami sought to submit that it was necessary to retain
such a power because it has been found that on certain occasions, after the
film has been cleared by the Board or by the Tribunal, there was public
resentment to the film and law and order situations arose. He submitted that
such a situation would necessitate a review and/or revision of the order passed
by the Tribunal. He submitted that under our Constitution there was no strict
separation of powers. He submitted that judicial functions could also be
discharged by the Central Government by way of conferment of revisional powers.
We are
unable to accept the submission of the learned counsel. The Government has
chosen to establish a quasi- judicial body which has been given the powers,
inter alia, to decide the effect of the film on the public. Once a
quasi-judicial body like the Appellate Tribunal, consisting of a retired Judge
of a High Court or a person qualified to be a Judge of a High Court and other
experts in the filed, gives its decision that decision would be final and
binding so far as the Executive and the Government is concerned. To permit the
Executive to review and/or revise that decision would amount to interference
with the exercise of judicial functions by a quasi-judicial Board. It would
amount to subjecting the decision of a quasi-judicial body to the scrutiny of
the Executive. Under our Constitution the position is reverse. The Executive
has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of
law which is one of the basic structures of the Constitution.
The
Legislature may, in certain cases, overrule or nullify the judicial or
executive decision by enacting an appropriate legislation. However, without
enacting an appropriate legislation, the Executive or the Legislature cannot
set at naught a judicial order. The Executive cannot sit in an appeal or review
or revise a judicial order. The Appellate Tribunal consisting of experts and
decides matters quasi-judicially. A Secretary and/or Minister cannot sit in
appeal or revision over those decisions. At the highest, the Government may
apply to the Tribunal itself for a review, if circumstances so warrant. But the
Government would be bound by the ultimate decision of the Tribunal.
We
fail to understand the apprehension expressed by the learned counsel that there
may be a law and order situation.
Once
an Expert Body has considered the impact of the film on the public and has
cleared the film, it is no excuse to say that there may be a law and order
situation. It is for the concerned State Government to see that the law and
order is maintained. In any democratic society there are bound to be divergent
views. Merely because a small section of the society has a different view, from
that as taken by the Tribunal, and choose to express their views by unlawful
means would be no ground for the Executive to review or revise a decision of
the Tribunal. In such a case, the clear duty of the Government is to ensure
that law and order is maintained by taking appropriate actions against persons
who choose to breach the law.
We,
therefore, see no substance in the Appeal. The same stands dismissed. There
will, however, be no Order as to costs.
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