REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO(s). 345 OF 2011
M/S PRAKASH JHA PRODUCTIONS & ANR Petitioner(s)
Versus
UNION OF INDIA & ORS. Respondent(s)
O R D E R
1. This writ petition is filed by the petitioners praying for the
reliefs specifically set out in the prayer portion of the writ petition.
One of the reliefs that is sought for in this writ petition is to strike
down the provision of Section 6 (1) of the U.P. Cinemas (Regulation)
Act (hereinafter referred to as “the Act”) being allegedly ultra vires to
the Constitution of India. The other relief that is sought for is to
quash and set aside the decisions taken by the respondents,
namely State of Punjab, State of Andhra Pradesh and State of Uttar
Pradesh suspending the screening of the film ‘Aarakshan’ in their
respective States for a specified period.
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2. Notice was issued on this writ petition making the same
returnable today so as to enable the three State Governments to
submit their reply/counter affidavit. However, at the stage of
issuing notice itself, we were informed by the counsel appearing for
the State of Punjab and Andhra Pradesh that so far as their States
are concerned, they had withdrawn the order of suspension of
screening of the film ‘Aarakshan’.
3. The counsel appearing for the State of Punjab and the State
of Andhra Pradesh are present in the Court. Today also they stand
by the same statement which they had made on the last date,
meaning thereby, that they had lifted the orders of suspension of
screening of the film in their respective States. Therefore, to our
understanding, the aforesaid film is being screened in the aforesaid
two States also as on this date. This petition, therefore, has been
rendered infructuous so far as the States of Andhra Pradesh and
Punjab are concerned.
4. The State of Uttar Pradesh has filed the counter affidavit
opposing the prayer in the writ petition which is on record. We
have heard the learned counsel appearing for the parties extensively
today.
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5. Mr. Harish Salve, learned senior counsel appearing for the
petitioners has not pressed the prayer so far as constitutional
validity of Section 6 of the Act is concerned. However, on his
submission, we are keeping the said issue open to be agitated in an
appropriate case in future, if necessary. He, however, has
challenged the legality of the decision of the Uttar Pradesh
Government suspending the screening of the film ‘Aarakshan’ in the
entire State of Uttar Pradesh. According to him, the aforesaid
exercise of power of suspension of the screening of the film
amounts to exercising the power of pre-censorship which is being
exercised by the Government, although no such power vested on it.
According to him, the said power of censorship is vested in the
Central Board of Film Certification, (hereinafter referred to as “the
Board”) and in the Central Government as provided for in the
provisions made in The Cinematograph Act, 1952. He has also
submitted that the power that is sought to be exercised in the
present case under Section 6(1) of the Act is also without
jurisdiction as such power could be exercised only when a film is
being screened and shown in the public hall and also when a
contingency of the nature as mentioned in the said Section arises.
He submits that on satisfying the preconditions and only in such a
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situation a power is vested in the State Government to suspend the
screening of the film for a specified period. He also submits that
the aforesaid decision of the State Government is in violation of the
provisions of Article 19(1) of the Constitution of India and,
therefore, the same is required to be struck down and quashed.
6. We have also heard Mr. Chandiok, learned Additional
Solicitor General, who submits that after a certificate has been
issued to a particular film by the Censor Board, the said film could
be screened in the entire country and the order which is passed by
the State Government is not envisaged as it practically prohibits
screening of the film in the entire State of Uttar Pradesh.
7. Mr. U.U. Lalit, learned senior counsel appearing for the
State of Uttar Pradesh has, however, taken us through the contents
of the counter-affidavit in support of his contention that the prayer
in writ petition cannot be granted by this Court. He has submitted
that a very high-level Committee has seen the film and thereafter
has given an opinion, according to which if and when the concerned
film is shown there is likelihood of breach of peace and also breach
of law and order situation and, therefore, the aforesaid decision of
suspending the screening of the film “Aarakshan” in Uttar Pradesh,
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which has been taken in order to preserve and upkeep the law and
order situation in the State should be upheld.
8. In order to appreciate the aforesaid contentions of the
counsel appearing for the parties, we have gone through the
pleadings of the parties alongwith the documents relied upon as
also the decisions which are referred to and relied upon.
9. We have also perused the provisions of Section 6 of the Act
which is practically the foundation and basis of the present case.
Section 6(1) of the Uttar Pradesh Cinemas (Regulation) Act, 1955
reads as follows:
“6. Power to the State Government or District
Magistrate to suspend exhibition of films in
certain cases – (1) The State Government, in
respect of the whole of the State of Uttar Pradesh
or any part thereof, and the District Magistrate
in respect of the district within his jurisdiction
may, if it or he, as the case may be, is of opinion
that any film which is being publicly exhibited, is
likely to cause a breach of the peace, by order,
suspend the exhibition of the films and thereupon
the films shall not during such suspension be
exhibited in the State, part or the district
concerned, notwithstanding the certificate
granted under the Cintmatograph Act, 1952.”
10. Upon going through the records, we find that the film
‘Aarakashan’ was submitted to the Central Board of Film
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Certification on 12.07.2011 for certification. Upon such
submission of the film, the Chairperson of the Board, in terms of
the provisions of the Act and the Rules, invited the legal expert and
another expert who is related to dalit movement to watch the film at
the time when the Examining Committee was previewing the film.
11. The Chairperson also saw to it that all the four members of
the Examining Committee are members belonging to scheduled
casts/scheduled tribes and OBC category. The said members of the
Examining Committee along with the legal expert as also the expert
related to dalit movement were present during the preview of the
film. The experts as also the Examining Committee gave their
approval for grant of censorship certificate and screening of the
film. The Examining Committee decided to give U/A certificate to
the film under the theme category “social”. However, while taking
the aforesaid decision, a view was expressed by the members of the
Examining Committee for deletion of the word ‘dalit’ from the
trailor in reel no. 1, which was deleted by the producer of the film,
and the same was treated as voluntary cut. Thereafter, the
certification was granted and a certificate was issued for screening
of the film. The said certificate is annexed with the petition.
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12. Pursuant to grant of the aforesaid certificate, the film is
being screened all over India except for the State of Uttar Pradesh
where it is not being exhibited because of the aforesaid decision of
the State Government. The State of Uttar Pradesh has given certain
reasons in their counter affidavit for the action taken leading to the
issuance of the order suspending the screening of the film. They
have also stated in their counter affidavit that the exhibition of the
film ‘Aarakshan’ if allowed would definitely cause an adverse effect
on the law and order situation in the State.
13. Our attention is also drawn by the counsel appearing for the
State of U.P. to paragraph 3 of the said affidavit wherein the
relevant portion of the report given by the High Level committee
constituted by the State Government is extracted. A bare perusal of
the same would indicate that in the report the High Level
Committee has suggested deletion of some portion from the film
without which, according to them, the film cannot be screened as
that may cause an adverse effect on the law and order situation in
the State.
14. Before dealing with the said contentions, we would like to
deal with the provision of the Act on the basis of which the
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aforesaid decision is taken. There is no dispute that the impugned
decision is taken in the purported exercise of power under Section 6
of the Act. A bare perusal of the aforesaid provision in Section 6 of
the Act would make it crystal-clear that the power vested therein
could be exercised by the State under the said provision when a
film which is being publicly exhibited could likely cause a breach of
peace. Only in such circumstance and event, an order could be
passed suspending the exhibition of the film.
15. The expression ‘being publicly exhibited’ and the word
‘suspension’ are relevant for our purpose and, therefore, we are
giving emphasis on the aforesaid expression and the word. When
it is said that a film is being publicly exhibited, it definitely pre-
supposes a meaning that the film is being exhibited for public and
in doing so if it is found to likely to cause breach of peace then in
that event such a power could be exercised by the State
Government. Such an extra-ordinary power cannot be exercised
with regard to a film which is yet to be exhibited openly and
publicly in a particular State. This view that we have taken is also
fortified from the use of the word ‘suspension’ in the said section.
The word `suspension’ envisages something functional or something
which is being shown or is running. Suspension is always a
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temporary phase, which gets obliterated as and when the previous
position is restored. Therefore, the power as vested under Section 6
of the Act could not have been exercised by the State of Uttar
Pradesh in view of the fact that the said film was not being
exhibited publicly in the theatre halls in U.P. Consequently, at this
stage, when the film is not screened or exhibited in the theatre halls
publicly and for public viewing, neither an opinion could be formed
nor any decision could be taken that there is a likelihood of breach
of peace by exercising power purported under Section 6 of the Act.
16. The counsel appearing for the State has also submitted that
in fact the film already is being exhibited in the State of Uttar
Pradesh as a High Level committee has seen the film. We cannot
accept the aforesaid position as the expression specifically uses the
word ‘publicly exhibited’ meaning thereby that it is being exhibited
all over and publicly for public viewing in the State.
17. Besides, the contention of the State of U.P. that some of the
scenes of the film could create a breach of peace or could have an
adverse effect on the law and order situation cannot be accepted as
this film is being screened in all other States of India peacefully and
smoothly and in fact some of the States, where this film is being
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screened, are also similarly sensitive States as that of the State of
U.P. In such States the film is being screened without any
obstruction or difficulty and without any disturbance of law and
order situation.
18. So far the contention of the counsel appearing for the State
of Uttar Pradesh that the issue of reservation is a delicate issue and
is to be handled carefully is concerned, we are of the considered
opinion that reservation is also one of the social issues and in a
vibrant democracy like ours, public discussions and debate on
social issues are required and are necessary for smooth functioning
of a healthy democracy. Such discussions on social issues bring in
awareness which is required for effective working of the democracy.
In fact, when there is public discussion and there is some dissent
on these issues, an informed and better decision could be taken
which becomes a positive view and helps the society to grow.
19. We may, at this stage, appropriately refer to the decisions of
this Court in the case of S.
Rangaranjan Vs. P.
Jagjivan Ram &
Ors. reported in (1989) 2 SCC 574. In paragraph 36 of the said
judgment, this Court has stated thus:-
“36. The democracy is a government by the
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people via open discussion. The democratic
form of government itself demands its citizens
an active and intelligent participation in the
affairs of the community. The public
discussion with people’s participation is a
basic feature and a rational process of
democracy which distinguishes it from all
other forms of government. The democracy
can neither work nor prosper unless people go
out to share their views. The truth is that
public discussion on issues relating to
administration has positive value. What
Walter Lippman said in another context is
relevant here:
When men act on the principle of
intelligence, they go out to find the
facts…. When they ignore it, they go
inside themselves and find out what is
there. They elaborate their prejudice
instead of increasing their knowledge”.
20. In paragraph 35, this Court has also stated that in a
democracy it is not necessary that everyone should sing the same
song. Freedom of expression is the rule and it is generally taken for
granted.
21. Reference could also be made to the decision of this Court
in Union
of India Vs. K.M. Shankarappa reported in (2001) 1
SCC 582. In the said case constitutional validity of Sections 3, 4
and other Sections of the Cinematograph Act, 1958 were
challenged. In paragraph 8 of the said judgment, this Court has
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stated that 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 and that it is for the
State Government concerned to see that the law and order situation
is maintained and that in any democratic society there are bound to
be divergent views.
22. In the present case, the Examining Committee of the Board
had seen the film along with the experts and only after all the
members of the Committee as also the two experts gave positive
views on the screening of the film, thereafter only the certificate was
granted. Therefore, since the expert body has already found that the
aforesaid film could be screened all over the country, we find the
opinion of the High Level committee for deletion of some of the
scenes/words from the film amounted to exercising power of pre-
censorship, which power is not available either to any high-level
expert committee of the State or to the State Government. It
appears that the State Government through the High Level
Committee sought to sit over and override the decision of the Board
by proposing deletion of some portion of the film, which power is
not vested at all with the State.
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23. It is for the State to maintain law and order situation in the
State and, therefore, the State shall maintain it effectively and
potentially. Once the Board has cleared the film for public viewing,
screening of the same cannot be prohibited in the manner as
sought to be done by the State in the present case. As held in K.M
Sankarapaa (Supra) it is the responsibility of the State Government
to maintain law and order.
24. Considering the entire facts and circumstances of the case,
we are of the considered opinion that the present writ petition is
required to be partly allowed in terms of the observations made
herein.
25. We, therefore, set aside and quash the decision of the State
Government suspending the screening of the film ‘Aarakshan’ in the
State of Uttar Pradesh in the light of the observations made and we
partly allow the petition to the aforesaid extent.
…………………………………………………J.
(Dr. MUKUNDAKAM SHARMA)
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………………………………………………..J.
(ANIL R. DAVE)
New Delhi
August 19, 2011.
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