PETITIONER:
LIFE INSURANCE CORPN. OF INDIA AND ORS. ETC.
Vs.
RESPONDENT:
PROF. MANUBHAI D. SHAH ETC. ETC.
DATE OF JUDGMENT22/07/1992
BENCH:
AHMADI, A.M. (J)
BENCH:
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.
HEADNOTE:
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
JUDGMENT:
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
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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
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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
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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
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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
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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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