PETITIONER: S. RANGARAJAN ETC Vs. RESPONDENT: P. JAGJIVAN RAM DATE OF JUDGMENT30/03/1989 BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) SINGH, K.N. (J) KULDIP SINGH (J) CITATION: 1989 SCR (2) 204 1989 SCC (2) 574 JT 1989 (2) 70 1989 SCALE (1)812 ACT: Cinematograph Act, 1952 (Cinematograph (Certificate) Rules, 1983. Sections 4, 5, 5A, B, C and 8/Guidelines (1)--(3) and notification dated January 21, 1987. High Court revoking 'U' certificate granted by Censor Board-Validity of High Court order--Duty of Censor Board--Obligatory duty of state to protect freedom of ex- pression. Constitution of India--Articles 19(1)(a) and 19(2)--Freedom of speech and expression--Reasonable restric- tions must be justified on anvil of necessity and not quicks--Sand of convenience and expediency--Obligatory duty of State to protect freedom of expression. HEADNOTE: The appellant, S. Rangarajan is a film producer. He produced a Tamil film "Ore Oru Gramathile" and applied for certificate for exhibition of the film. The examination committee upon seeing the film refused to grant the Certifi- cate but on a reference being made to the 2nd Revising Committee for review and recommendation, the Committee by a majority of 5:4 recommended the grant of a 'U' certificate subject to deletion of certain scenes. On 7.12.87 'U' certificate was granted which was chal- lenged in the High Court by means of writ petitions. It was contended before the High Court that the film is treated in an irresponsible manner, the reservation policy of the Govt. has been projected in a biased manner and the so-called appeal in the film that "India is one" is a hollow appeal which touches caste sensitivity of the Brahmin forward caste. It was also asserted that the film would create law and order problem in Tamil Nadu. The Writ Petitions were dismissed by the Single Judge but upon appeal they were allowed and the 'U' certificate issued to the appellant- producer was revoked. These two appeals, one by the producer of the film and the other by the Union of India have been filed by 205 special leave of challenging the decision of the High Court. The principal contentions raised on behalf of the appel- lants were: (i) that the fundamental right of freedom of free expression guaranteed under the Constitution covers even the medium of movies; that the opinion on the film ought not to be rested on the isolated passages disregarding the main theme and its message; (ii) That the Court should not concern itself with the correctness or legality of the views expressed in the film and the Court cannot limit the expression on any general issue even if it is controversial and that the writings of the film must be considered in a free and liberal manner in the light of the freedom of expression guaranteed under the Constitution. It was assert- ed that the theme of the film is that reservation could be on the basis of economic backwardness instead of caste. Counsel for the Respondents was critical about the manner in which the reservation policy of the Govt. has been condemned and the events and the characters portrayed in the film, as they are depicted in a biased manner and reaction to the film in Tamil Nadu is bound to be volatile and likely to create law and order problem. Allowing the appeals, this Court, HELD: The motion pictures were originally considered as a form of amusement to be allowed to titillate but not to arouse. They were treated as mere entertainment and not an art or a means of expression. Movie motivates thought and action and assures a high degree of attention and retention. It makes its impact simultaneously arousing the visual and aural senses. The movie had unique capacity to disturb and arouse feelings. It has as much potential for evil as it was for good. It has an equal potential to instil or cultivate violent or good behaviour. [211D-E; 212G; 213D] Censorship by prior restraint is, therefore, not only desirable but also necessary. [213E] The Censors Board should exercise considerable circum- spection on movies affecting the morality or decency of our people and cultural heritage of the country. The moral values in particular, should not be allowed to be sacrificed in the guise of social change or cultural assimilation. [216G-H] The Censors should be responsive to social change and they must go with the current climate. The Censors may display more sensitivity 206 to movies which will have a markedly deleterious effect to lower the moral standards of those who see it. [217C-D] If the film is unobjectionable and cannot constitution- ally be restricted under Article 19(2), freedom of expres- sion cannot be suppressed on account of threat of demonstra- tion and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to black mail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression. [230C-D] The Revising Committees have approved the film. The members thereof come from different walks of life with variegated experiences. They represent the cross section of the community. They have judged the film in the light of the objectives of the Act and the guidelines provided for the purpose. There is nothing wrong or contrary to the Constitu- tion in approving the film for public exhibition. [230E-F] The framework of the Indian Constitution differs from the First Amendment to the U.S. Constitution. Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression. The freedom of the expression means the right to express one's opinion by words of mouth, writ- ing, printing, picture or in any other manner, it would thus include the freedom of communication and the right to propa- gate or publish opinion. The communication of ideas could be made through any medium, newspaper, magazine or movie. But this right is subject to reasonable restrictions on grounds set out under Article 19(2). Reasonable limitations can be put in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. [212B-D] In matters of certification of films, it is necessary to take prompt action by the respective authorities. The pro- ducer who has invested a large capital should not be made to wait needlessly. He has a statutory right to have the valid- ity of the film determined in accordance with law. It would be, therefore, proper and indeed appreciative if the film is reviewed as soon as it is submitted. It is not proper to form an opinion by dwelling upon stray sentences or isolated passages disregarding the main theme. [219E; 220B-C] 207 Freedom of expression is the rule and it is generally taken for granted. Every one has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means. [223C] Democracy is Government by the people via open discus- sion. The democratic form of government itself demands its citizens an active and intelligent participation is a basic features and a rational process of democracy which distin- guishes it from all other forms of govt. Public discussion on issues relating to administration had positive value. [223D-E] Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allow- ing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg". [226G-H] It is difficult to understand how the expression in the film with criticism of reservation policy or praising the colonial rule will affect the security of the State or sovereignty and integrity of India. There is no utterance in the film threatening to overthrow the Govt. by unlawful or unconstitutional means. There is no talk of secession either nor is there any suggestion for impairing the integration of the country. The film seems to suggest that the existing method of reservation on the basis of caste is bad and reservation on the basis of economic backwardness is better. The film also deprecates exploitation of people on caste considerations. [222G-H; 223A] The fundamental freedom under Art. 19(1)(a) can be reasonably restricted only for the purposes mentioned in Art. 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and of convenience and expediency. Open criticism of Government policies and opera- tions is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself. [230H; 231A-B] The Court allowed the appeals, set aside the judgment of the High Court and dismissed the writ petitions. [231B-C] 208 Mutual Film Corporation v. Industrial Commission, 235 U.S. 230 (1915) referred to, Burstyn v. Wilson, 343 U.S. 495 referred to, Schenek v. United States, 249 U.S. 47 (1919) referred to, Santosh Singh v. Delhi Administration, [1973] 3 SCR 533 followed, K.A. Abbas v. Union of India, [1971] 2 SCR 446 referred to, Ramesh v. Union of India, [1988] 1 SCC 668; Bhagwat Charan Shukla v. Provincial Government, AIR 1947 Nag 1 at 676, Rajkappoor v. Laxman, [1980] 2 SCR 512, Maneka Gandhi v. Union of India, [1978] 2 SCR 621; Naraindas v. State of Madhya Pradesh, [1974] 3 SCR 624; Sakal v. Union of India, [1962] 3 SCR 842, Whitney v. California, [274] U.S. 357, 375-378, 1927; Manohar v. Govt. of Bombay, AIR 1950 Bombay 210; Niharender Dutt Majumdar v. Emperor, AIR 1942 FC 22 and Handyside v. United Kingdom, [1975I EHRR/737 at p. 754 referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1668 and
1669 of 1988.
From the Judgment and Order dated 29.4.1988 of the
Madras High Court in W.R. Nos. 469 and 488 of 1988.
Soli J. Sorabjee, V.C. Mahajan, C.A. Sundaram, U.A.
Rana, M. Mudgal, Ms. Indu Malhotra, C.V. Subba Rao, A.
Mariar Autham, Aruna Matbur, N.N. Sharma, Jose Varghese,
Bhagwan Das, R. Mohan, R.A. Perumal and A.V. Rangam for the
appearing parties.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. These appeals by leave are from
the judgment of the Division Bench of the Madras High Court
revoking the ‘U-Certificate’ issued to a Tamil film called
“Ore Oru Gramathile” (In one Village) for public exhibition.
Civil Appeal Nos. 1668 and 1669 of 1988 are by the producer
of the film and the Civil Appeal nos. 13667 and 133668 of
1988 are by the Union of India.
The story of “Ore Oru Gramathile” can be summarised as
follows:
“A Brahmin widower, Shankara Sastry, has a talented
daughter Gayathri. He apprehends that she would not be able
to get admission to college because she belongs to a Brahmin
community. He seeks advice from his close friend Devashayam,
a Tehsildar. The Tehsildar who otherwise belongs to a very
poor family and whose father was working in a local Church
responds with gratitude. He divises a
209
method to help Gayathri because it was through Sastry’s
father that he got proper education and rose to become a
Tahsildar. He prepares a false certificate showing Gayathri
as Karuppayee belonging to an Adi Dravida Community and as
an orphan. He issues the certificate under the reservation
policy of the Government for the benefit of ‘backward commu-
nities’ identified on caste consideration. On the basis of
the false certificate, Karuppayee gets admitted to college
and enters I.A.S. witness to this arrangement is the broth-
er-in-law of Tahsildar called Anthony who later turns out to
be a villain of the piece. ”
“Years later, Karuppayee, who was working in Delhi is
sent to a rural village called Annavayil as a Special Offi-
cer for flood relief operations. Her father, Shankara Sastry
happens to work in the same village as Block Development
Officer. However, both of them pretend not to recognise each
other. Karuppayee takes her work seriously and improves the
living conditions of people to such an extent that she is
held by them in high esteem. By a coincidence, after the
death of the Tahsildar, Anthony comes to live in the same
village and recognises Karuppayee. He starts blackmailing
her and threatens to reveal the fraudulent means by which
she got the caste certificate. His attempt is to extract
money from her frequently. One evening when he visits Karup-
payee’s house, he is confronted by Shankara Sastry who puts
a halt to his blackmailing. Later Anthony dies of sudden
heart attack but not before he informs the Government about
the facts relating to Karuppayee. Upon preliminary enquiry,
the Government suspends both Karuppayee and her father and
eventually they are put on trial in the Court. The people of
the village resentful of the action taken against Karuppayee
rise as one man and demonstrate before the Court in a peace-
ful manner for her release. They also send petitions to the
Government.”
“Karuppayee and her father admit in the Court the fact
of their having obtained the false caste certificate but
they attribute it to circumstances resulting by Government
reservation policy on caste basis. They say that they are
prepared to undergo any punishment. They contend hat some
politicians are exploiting the caste consideration and that
would be detrimental to national integration. They also
argue that the reservation policy should not be based on
caste, but could be on economic backwardness. Just about the
time when the judgment is to be pronounced the Court re-
ceives intimation from Government that in the light of
petitions received from the public, the case against Karup-
payee and her father stands withdrawn. Karuppayee goes back
to her Government job with jubilent people all round.”
210
This is the theme of the picture presented. As usual, it
contains some songs, dance and side attractions to make the
film more delectable.
On August 7, 1987, the producer applied for certificate
for exhibition of the film. The examining committee upon
seeing the film unanimously refused to grant certificate.
The appellant then sought for review by a Revising Committee
which consisted of nine members. This Committee reviewed the
film. Eight members were in favour of grant of certificate
and one was opposed to it. The Chairman of the Censor Board
however, referred the film to Second Revising Committee for
review and recommendation. This again consisted of nine
members and by majority of 5:4 they recommended for issue of
‘U’ certificate subject to deletion of certain scenes. The
‘U’ certificate means for unrestricted public exhibition as
against ‘A’ certificate restricted to adults only. The
minority expressed the view that the film is treated in an
irresponsible manner. The reservation policy of the Govern-
ment is projected in a highly biased and distorted fashion.
They have also stated that the so called appeal in the film
“India is One” is a hollow-appeal, which in effect touches
caste sensitivity of the Brahmin forward caste. One of the
members felt that the impact of the film will create law and
order problem. Another member said that the film will hurt
the feelings and sentiments of certain sections of the
public. But the majority opined that the theme of the film
is on the reservation policy of the Government suggesting
that the reservation could be made on the basis of economic
backwardness. Such a view could be expressed in a free
country like India, and it did not violate any guideline.
On December 7, 1987, ‘U’ certificate was granted for the
exhibition of the film which was challenged before the High
Court by way of writ petitions. The writ petitions were
dismissed by the Single judge, but the Division Bench upon
appeal allowed the writ petitions and revoked the certifi-
cate. The Division Bench largely depended upon the minority
view of the Second Revising Committee and also the opinion
of the Examining Committee. The producer of the film and the
Government of India by obtaining leave have appealed to this
Court. The film has since been given National Award by the
Directorate of Film Festival of the Government of India.
In these appeals, the fundamental point made by Mr. Soli
Sorabjee, learned counsel for the producer is about the
freedom of free expression guaranteed under our Constitution
even for the medium of
211
movies. The counsel argued that the opinion on the effect of
the film should not be rested on isolated passages disre-
garding the main theme and its message. The Film should be
judged in its entirety from the point of its overall impact
on the public. The writings of the film must be considered
in a free, fair and liberal spirit in the light of the
freedom of expression guaranteed under our Constitution. The
counsel said that the Court is not concerned with the cor-
rectness or legality of the views expressed in the film and
the Court cannot limit the expression on any general issue
even if it is controversial. Mr. Mahajan for the Union of
India supported these submissions. Mr. Varghese learned
counsel for the contesting respondents did not dispute most
of the proposition advanced for the appellants. He was,
however, critical about the manner in which the reservation
policy of the Government has been condemned and the events
and characters shown in the film. He contended that they are
depicted in a biased manner and reaction to the film in
Tamil Nadu is bound to be volatile.
Before examining these rival contentions, a few general
observations may be made as to the utility of movies and the
object of the film Censors Board. The motion pictures were
originally considered as a form of amusement to be allowed
to titillate but not to arouse. They were treated as mere
entertainment and not an art or a means of expression. This
theory was based on the concept that motion picture was a
business “pure and simpe originated and conducted for prof-
it, like other spectacles.” It was considered strictly as an
“amusement industry”. It was so held in 1915 by the unani-
mous decision of the American Supreme Court in Mutual Film
Corporation v. Industrial Commission, 236 U.S. 230 (1915).
It was not without significance since there were no talking
pictures then. The talking pictures were first produced in
1926, eleven years after the Mutual decision (Encyclopedia
Britinnica) (1965 Vol. 15 p. 902). The later decisions of
the American Supreme Court have therefore declared that
expression by means of motion pictures is included within
the free speech and free press guaranty of the First Amend-
ment. (See Burstyn v. Wilso, 343 U.S. 495). The First Amend-
ment to the U.S. Constitution provides: “Congress shall make
no law … abridging the freedom of speech, or of the
press.” This Amendment is absolute in terms and it contains
no exception for the exercise of the fight. Heavy burden
lies on the State to justify the interference. The judicial
decisions, however, limited the scope of restriction which
the State could impose in any given circumstances. The
danger rule was born in Schenek v. United States, 249 U.S.
47 (1919). Justice Holmes for a unanimous court, evolved the
test of “clear and present danger”. He used the danger test
to
212
determine where discussion ends and incitement or attempt
begins. The core of his position was that the First Amend-
ment protects only utterances that seeks acceptance via the
democratic process of discussion and agreement. But “Words
that may have all the effect of force” calculated to achieve
its goal by circumventing the democratic process are howev-
er, not so protected.
The framework of our Constitution differs from the First
Amendment to the U.S. Constitution. Article 19(1)(a) of our
Constitution guarantees to all citizens the right to freedom
of speech and expression. The freedom of expression means
the right to express one’s opinion by words of mouth, writ-
ing, printing, picture or in any other manner. It would thus
include the freedom of communication and the right to propa-
gate or publish opinion. The communication of ideas could be
made through any medium, newspaper, magazine or movie. But
this right is subject to reasonable restrictions on grounds
set out under Article 13(2) of the Constitution. The reason-
able limitations can be put in the interest of sovereignty
and integrity of India, the security of the State, friendly
relations with foreign States, public order, deceny or
morality or in relation to contempt of court, defamation or
incitement to an offence. The Framers deemed it essential to
permit imposition of reasonable restrictions on the larger
interests of the community and country. They intended to
strike a proper balance between the liberty guaranteed and
the social interest specified under Article 19(2). (See
Santokh Singh v. Delhi Administration, [1973] 3 SCR 533).
This is the difference between the First Amendment to
the U.S. Constitution and Article 19(1)(a) of our Constitu-
tion. The decisions bearing on the First Amendment are,
therefore, not useful to us except the broad principles and
the purpose of the guaranty.
Movie doubtless enjoys the guaranty under Article
19(1)(a) but there is one significant difference between the
movie and other modes of communication. The movie cannot
function in a free market place like the newspaper, magazine
or advertisement. Movie motivates thought and action and
assures a high degree of attention and retention. It makes
its impact simultaneously arousing the visual and aural
senses. The focusing of an intense light on a screen with
the dramatizing of facts and opinion makes the ideas more
effective. The combination of act and speech, sight and
sound in semi-darkness of the theatre with elimination of
all distracting ideas will have an impact in the minds of
spectators. In some cases, it will have a complete and im-
213
mediate influence on, and appeal for every one who sees it.
In view of the scientific improvements in photography and
production the present movie is a powerful means of communi-
cation. It is said: “as an instrument of education it has
unusual power to impart information, to influence specific
attitudes towards objects of social value, to affect emo-
tions either in gross or in microscopic proportions, to
affect health in a minor degree through sleep disturbance,
and to affect profoundly the patterns of conduct of chil-
dren.” (See Reader in Public Opinion and Communication
Second Edition by Bernard Betelson and Morris Janowitz p.
390). The authors of this Book have demonstrated (at 391 to
401) by scientific tests the potential of the motion pic-
tures in formation of opinion by spectators and also on
their attitudes. These tests have also shown that the effect
of motion pictures is cumulative. It is proved that even
though one movie relating to a social issue may not signifi-
cantly affect the attitude of an individual or group, con-
tinual exposure to films of a similar character will produce
a change. It can, therefore, be said that the movie has
unique capacity to disturb and arouse feelings. It has as
much potential for evil as it has for good. It has an equal
potential to instil or cultivate violent or good behaviour.
With these qualities and since it caters for mass audience
who are generally not selective about what they watch, the
movie cannot be equated with other modes of communication.
It cannot be allowed to function in a free market place just
as does the newspapers or magazines. Censorship by prior
restraint is, therefore, not only desirable but also neces-
sary.
Here again we find the difference between the First
Amendment to the U.S. Constitution and Article 19(1)(a) of
our Constitution. The First Amendment does not permit any
prior restraint, since the guaranty of free speech is in
unqualified terms. This essential difference was recognised
by Douglas, J., with whom Black, J., concurred in Kingsley
Corporation v. Regents of the University of New York, 3
L.Ed. 1512 at 1522. In holding that censorship by “prior
restraint” on movies was unconstitutional, the learned Judge
said:
“If we had a provision in our Consti-
tution for “reasonable” regulation of the
press such India has included in hers, there
would be room for argument that censorship in
the interests of morality would be permissi-
ble. Judges sometimes try to read the word
“reasonable” into the First Amendment or make
the rights it grants subject to reasonable
regulation ….. But its language, in terms
that are absolute is utterly at war with
censorship.
214
Different questions may arise as to censorship
of some news when the nation is actually at
war. But any possible exceptions are extremely
limited.”
The Cinematograph Act 1952 (“The Act“) which permits
censorship on movies is a comprehensive enactment. Section 3
of the Act provides for constitution of Board of Film Cen-
sors. Section 4 speaks of examination of films. A film is
examined in the first instance by an Examining Committee. If
it is not approved, it is further reviewed by a Revising
Committee under Section 5. Section 5A states that if after
examining a film or having it examined in the prescribed
manner, the Board considers that the film is suitable for
unrestricted public exhibition, such a certificate is given
which is called ‘U’ certificate.
Section 5(a) provides principles for guidance in certi-
fying films. It is significant to note that Article 19(2)
has been practically read into Section 5(B)(1). Section 5(C)
confers right of appeal to Tribunal against refusal of
certificate. Under Section 6, the Central Government has
revisional power to call for the record of any proceeding in
relation to any film at any stage, where it is not made the
subject matter of appeal to the Appellate Tribunal.
Under Section 8 of the Act, the Rules called the Cine-
matograph (Certification) Rules 1983 have been framed. Under
Section 5(B)(2) the Central Government has prescribed cer-
tain guidelines for the Censors Board. Guideline (1) relates
to the objectives of film censorship. The Board shall ensure
that: (a) the medium of film remains responsible and sensi-
tive to the values and standards of society; (b) artistic
expression and creative freedom are not unduly curbed and
(c) censorship is responsive to social change.
Guideline (2) requires the Board to ensure that: (i)
anti-social activities such as violence not glorified or
justified; (ii) the modus operandi of criminal or other
visuals or words likely to incite the commission of any
offence are not depicted; (iii) pointless or avoidable
scenes of violence, cruelty and horror are not shown; (iv)
human sensibilities are not offended by vulgarity, obscenity
and depravity; (vi) the sovereignty and integrity of India
is not called in question; (vii) the security of the State
is not jeopardised or endangered; (viii) friendly relations
with foreign states are not strained; and (ix) Public Order
is not endangered.
Guideline (3) also requires the Board to ensure that the
film: (i)
215
is judged in its entirety from the point of view of its
overall impact and; (ii) is examined in the light of contem-
porary standards of the country and the people to whom the
film relates.
It will be thus seen that censorship is permitted mainly
on social interest specified under Article 19(2) of the
Constitution with emphasis on maintenance of values and
standards of society. Therefore, the censorship by prior
restraint must necessarily be reasonable that could be saved
by the well accepted principles of judicial review.
In K.A. Abbas v. Union of India, [1971] 2 SCR 446 a
Constitution Bench of this court considered important ques-
tions relating to pre-censorship of cinematograph films in
relation to the fundamental right of freedom of speech and
expression. K.A. Abbas, a noted Indian journalist and film
producer produced a short documentary film called “A tale of
Four Cities”. In that film he sought to contrast the self
indulgent life of the rich in Metropolitan cities with the
squalor and destitution of labouring masses who helped to
construct the imposing buildings and complexes utilised by
the rich. The film also goes on to explore the theme of
exploitation of women by men, dealing in particular prosti-
tution. Abbas applied to the Board of Film Censors for a ‘U’
certificate, permitting unrestricted exhibition of the film.
He was informed by the regional officer that the Examining
Committee had provisionally concluded that the film should
be restricted to adults. The Revising Committee concurred in
this result, whereupon Abbas, after exchanging correspond-
ence with the Board, appealed to the Central Government. The
Government decided to grant ‘U’ certificate provided that
the scenes in the red light district were deleted from the
film. Abbas challenged the action of the Board mainly on
four issues out of which two did not survive when the Solic-
itor General stated before the Court that the Government
would set on foot legislation to effectuate the policies at
the earliest possible date. The two issues which survived
thereupon were: (a) that pre-censorship itself cannot be
tolerated under the freedom of speech and expression; (b)
that even if it were a legitimate restraint on the freedom,
it must be exercised on very definite principles which leave
no room for arbitrary action.
With regard to the power of pre-censorship, Hidayatul-
lah, C.J., observed (at 473-74):
“The task of the censor is extreme-
ly delicate ….. The standards that we set
out for our censors must make a
216
substantial allowance in favour of freedom
thus leaving a vast area for creative art to
interpret life and society with some of its
foibles along with what is good. We must not
look upon such human relationships as banned
in toto and for ever from human thought and
must give scope for talent to put them before
society. The requirements of art and litera-
ture include within themselves a comprehen-
sive, view of social life and not only in its
ideal form and the line is to be drawn where
the average man moral man begins to feel
embarassed or disgusted at a naked portrayal
of life without the redeeming touch of art or
genius of social value. If the depraved begins
to see in these things more than what an
average person would, in much the same way as
it is wrongly said, a Frenchman sees a woman’s
legs in everything, it cannot be helped. In
our scheme of things ideas having redeeming
social or artistic value must also have impor-
tance and protection for their growth.”
Recently, Sabyasachi Mukharji, J., in
Ramesh v. Union of India, [1988] 1 SCC 868
which is popularly called “TAMAS” case laid
down the standard of judging the effect of the
words or expression used in the movie. The
learned Judge quoting with approval of the
observation of Vivian Bose, J., as he then
was, in the Nagpur High Court in the case of
Bhagwati Charun Shukla v. Provincial Govern-
ment, AIR 1947 Nag 1 (at 676):
“That the effect of the words must
be judged from the standards of reasonable,
strong minded, firm and courageous men, and
not those of weak and vacillating. This in our
opinion is the correct approach in judging the
effect of exhibition of a film or of reading a
Book. It is the standard of ordinary reasona-
ble man or as they say in English law, “the
man on the top of a Clampham omnibus. “
We affirm and reiterate this principle. The standard to
be applied by the Board or courts for judging the film
should be that of an ordinary man of common sense and pru-
dence and not .that of an out of the ordinary or hypersensi-
tive man. We, however, wish to add a word more. The Censors
Board should exercise considerable circumspection on movies
affecting the morality or decency of our people and cultural
heritage of the country. The moral values in particular,
should not be allowed to be sacrificed in the guise of
social change or cultural assimi-
217
lation. Our country has had the distinction of giving birth
to a galaxy of great sages and thinkers. The great thinkers
and sages through their life and conduct provided principles
for people to follow the path of fight conduct. There have
been continuous efforts at rediscovery and reiteration of
those principles. Adi-guru Shankaracharya, Ramanujacharya,
Madhwacharya, Chaitanya Maha Prabhu, Swami Ram Krishan
Paramhansa, Guru Nanak Sant Kabir and Mahatma Gandhi, have
all enlightened our path. If one prefers to go yet further
back, he will find “TIRUKKURAL” the ethical code from Tiruv-
alluvar teaching which is “a general human morality and
wisdom.” Besides, we have the concept of “Dharam” (right-
eousness in every respect) a unique contribution of Indian
civilization to humanity of the world. These are the bedrock
of our civilization and should not be allowed to be shaken
by unethical standards. We do not, however, mean that the
Censors should have an orthodox or conservative outlook. Far
from it, they must be responsive to social change and they
must go with the current climate. All we wish to state is
that the Censors may display more sensitivity to movies
which will have a markedly deleterious effect to lower the
moral standards of those who see it. Krishna Iyer, J., in
Rajkapoor v. Laxman, [1980] 2 SCR 512 in words meaningful
expressed similar thought. The learned Judge said (at 5 17):
“The ultimate censorious power over
the Censors belongs to the people and by
indifference, laxity or abetment, pictures
which pollute public morals are liberally
certified, the legislation, meant by Parlia-
ment to protect people’s good morals, may be
sabotaged by statutory enemies within.”
With these prefactory remarks, let us now turn to the
reasons which weighed with the High Court to revoke the ‘U’
certificate and rule out the film altogether. The High Court
has found fault with the Constitution of the First Revising
Committee. It has held that the Revising Committee was
constituted hurriedly and its constitution by “delegate
Board Member” was illegal and without authority of law. The
Committee also showed unusual favour to the producer by
reviewing the film with hot haste. In the absence of a First
Revising Committee having come into existence as known to
law; the High Court said that the constitution of the Second
Revising Committee was invalid and inoperative.
We do not think that the High Court was justified in
reaching this conclusion. Under the rules, the Regional
Officer shall appoint an
218
Examining Committee to examine the film. The reports and
records relating thereto shall be treated as confidential.
The Rule 22 inter alia, states that after screening the
film, the Examining Officer shall within three working days
send the recommendations of all the members of the Examining
Committee to the Chairman. Rule 24(1) provides for constitu-
tion of a Revising Committee. It states that on receipt of
the record referred to in rule 22, the Chairman may, of his
own motion or on the request of the applicant, refer the
movie to a Revising Committee. In the instant case, the
Chairman did not constitute the first Revising Committee but
a member of the Board did. The question is whether the
member of the Board was competent to constitute the Revising
Committee. Our attention was drawn to the Government order
dated January 21, 1987 made under sec. 7(B) of the Cinemato-
graph Act. The order reads;
“No. 803/1/86-F(C)
Government of India
Ministry of Human Resource Development
Department of Culture.
New Delhi, the 21st January, 1987
ORDER
In exercise of the powers conferred
by Sec. 7B of the Cinamatograph Act, 1952 (37
of 1952) (hereinafter referred to as the said
Act), the Central Government hereby directs
that any power, authority or jurisdiction
exercisable by the Board of film, Certifica-
tion (hereinafter referred to as the Board) in
relation to matters specified in sec. 4, sub-
sees. (3) and (4) of sec. 5, sec. 5-A and sec.
7C of the said Act shall also be exercisable
subject to the condition given below by the
following members of the Board at the Regional
Office indicated against each, with immediate
effect and until further orders:
1. Shri Samik Banerjee Calcutta
2. Ms. Maithreyi Ramadhurai Madras
3. Dr. B.K. Chandrashekar Bangalore
XXX XXXX XXX XXXX”
This order clearly states that the power of the Board shall
also be exercisable by the specified members within their
regional office. For
219
Madras region Ms. Maithrayi Ramadhurai has been constituted
to . exercise such powers.
It cannot be contended that the Central Government has
no power to delegate the powers or to issue the said order.
Sec. 7(B) empowers the Central Government to issue general
or special order directing that any power, authority or
jurisdiction exercisable by the Board under the Act shall be
exercisable also by the Chairman or any other member of the
Board. The section further provides that anything done or
action taken by the Chairman or other member specified in
the order shall be deemed to be a thing done or action taken
by the Board. From the provisions of sec. 7B read with the
Government order dated January 21, 1987, it becomes clear
that the constitution of the First Revising Committee by the
member at the Madras Regional Office is not vulnerable to
any attack. It is legally justified and unassailable. The
conclusion to the contrary reached by the High Court is
apparently unwarranted.
We also do not find any justification for the observa-
tion of the High Court that there was unusual favour shown
to the producer by the First Revising Committee in reviewing
the film. It is true that the film was reviewed within 2-3
hours of the presentation of the application. But there is
no reason to attribute motives either to members of the
Committee or to the producer. In matters of certification of
films, it is necessary to take prompt action by the respec-
tive authorities. The producer who has invested a large
capital should not be made to wait needlessly. He has a
statutory right to have the validity of ,the film determined
in accordance with law. It would be, therefore, proper and
indeed appreciative if the film is reviewed as soon as it is
submitted.
There are two other side issues which may be disposed of
at this stage. The scene with song No. 2 in reel No. 3 and
the comments by the heroine of looking at the photo of Dr.
Ambedkar, have come under serious criticism. It is said that
the song has the effect of spreading ‘Kulachar’ which is
‘Poisonous message’ to the depressed classes not to educate
their children. The complaint, if true, is serious. We,
therefore, gave our anxious consideration to the grievance.
We, as did the High Court, viewed the movie. The cobbler
sings the song in question with his grandson who is eager to
go to school. The song contains references to Kamaraj, Anna
and MGR who without even college education became Chief
Ministers. The cobbler asks the grandson: “What are you
going to achieve by education? and don’t forsake the profes-
sion you know and you can educate yourself as a cobbler.”
220
While these and other exchanges are going on between the
cobbler and grandson, the heroine comes and insists that the
boy should go to school. She promises to contribute Rs.50 as
an incentive to the cobbler every month and also to make
good his income deprived of by the boy’s earning. They agree
to her suggestion with “Vanakkam, Vanakkam”. The song thus
ends with a happy note and the cobbler agrees to send his
grandson to school. It is true as pointed out by counsel for
the respondents that one or two references in the song are
not palatable, but we should not read too much into that
writing. It is not proper to form an opinion by dwelling
upon stray sentences or isolated passages disgregarding the
main theme. What is significant to note is that the cobbler
ultimately does not insist that his grandson should continue
the family pursuits. He accepts the suggestion made by the
heroine. It is, therefore, wrong to conclude that the song
was intended to convey poisonous message against the inter-
ests of depressed classes.
The criticism on the alleged comments on Dr. Ambedkar is
equally unsustainable. The confusion perhaps is due to the
pronounced accent of an English word in the course of Tamil
conversation. The matter arises in this way: Sastry shows
the photograph of Dr. Ambedkar to heroine and enquires
whether she likes it. Then she makes certain comments.
According to the High Court, she states, “Dr. Ambedkar
worked for the poor. Not for ‘par’.” It is said that ‘par’
in Tamil means equality and if she says ‘not for the par’,
it means that Dr. Ambedkar did not work for equality. If she
states like that, it is certainly objectionable since Dr..
Ambedkar did everything to have an egalitarian society. But
while viewing the film, we could not hear any such word used
by the heroine. On the other hand, we distinctly noted her
saying, “Dr. Ambedkar worked for the poor, Not for power..”
This being the remark there is no basis for the criticism of
the High Court.
The last complaint and really the nub of the case for
the respondent is about the reel No. 14 covering the court
scene where Karuppayee and Sastry are prosecuted for offence
of obtaining a false caste certificate. The reel No. 14
contains almost a dialogue between the prosecution lawyer
and Karuppayee. She criticises the reservation policy of the
Government. She states that during the British regime, the
people enjoyed educational freedom, and job opportunities
which were based on merit criteria and not vote caste in a
particular constituency. Then the prosecution lawyer puts a
question “why do you regret this Madam? Was not ‘Bharat
Matha’ under shackles then?” She replies: “You are right.
Then “Bharat Matha” was in chains
221
(Vilangu, is the Tamil word used for shackles which also
means animals). Now “Bharat Matha” is under animals’ hands.”
On a further question from the prosecutor she explains that
her reference to ‘animals’ hands is only to those who incite
caste, language and communal fanaticism, thus confusing
people and making it their profession. She also states that
it is the Government and its laws that have made her and her
father to tell a lie. The presiding Judge interrupts with a
question: “What is wrong in the Government approach? Can you
elaborate?” She replies: “That it is wrong not to give
credence to her merit and evaluate the same on the basis of
her caste and such evaluation would put a bar on the
progress.” She goes on to explain “Your laws are the barri-
ers Sir. You have made propaganda in nook and corner stating
“Be an Indian, Be an Indian”. And if I proudly say I am an
Indian then the Government divides saying ‘no, no,
no, ….. You are a Brahmin, you are Christian, you are a
Muslim. It is the Government that divides.” Then she puts a
question to herself: “What is the meaning of “Be an Indian?”
She explains that it must be without caste, creed and commu-
nal considerations, from Kashmir to Kanyakumari, the country
must be one. She then blames the Government with these
words: “The Government in dealing with all has no one face.
Take any application form they want to know your caste and
religion. When all are Indians where is the necessity for
this question. You have divided the people according to
caste. Then if you reel off on “National integration” will
not the public laugh.”
As to the reservation policy to those who are backward
she says: “On Gods name, I have no objection in providing
all concessions to those who are backward. The list of those
belonging to forward sections and backward sections could be
prepared on the basis of economic considerations. And those
below a specified limit of income be included in the back-
ward list.”
How did the High Court look at it? On the remark of
heroine as to the situations that existed during British
administration, the High Court observed thus:
“It is preposterous and offensive to claim
that education was independent when India was
under British rule and that, after independ-
ence it is not there.”
The High Court also said:
“That any denigration of Rule of law would
never
222
bring orderly society. To preach that it is-
only law that prompted them to utter falsehood
and in its absence they would not have done it
is a wrong way presenting a view point.”
As to the allegations that ‘Bharat Matha’
is now in the hands of politicians, who are
instigating the masses on the basis of caste
and language, etc., the High Court remarked:
“If this sort of decrying India for
being an independent nation is to be projected
in films repeatedly, then in course of time,
citizens will loose faith in the integrity and
sovereignty of India. With this sort of glori-
fication made, how could it be claimed that
the film stands for national integration. That
was why one Member rightly said that it is a
hollow-claim. Hence Guideline 2(vi) and (vii)
are contravened.”
On the total impact of the film, the High
Court observed:
“That certain peculiar factors will
have to be taken into account because of
guidelines 3(i) and 3(ii). This film is in
Tamil. It deals with reservations now extended
to large sections of people on a particular
basis, and who have suffered for Centuries,
and at a time when they have not attained
equality and when their valuable rights which
are secured under the Constitution is attempt-
ed to be taken away, they get agitated. This
film taken in Tamil for Tamil population on
being screened in Tamil Nadu, will certainly
be viewed in the background of what had hap-
pened in Tamil Nadu during the preceding four
decades, and the reactions are bound to be
volatile.”
We find it difficult to appreciate the observations of
the High Court. We fail to understand how the expression in
the film with criticism of reservation policy or praising
the colonial rule will affect the security of the State of
sovereignty and integrity of India. There is no utterance in
the film threatening to overthrow the Government by unlawful
or unconstitutional means. There is no talk for secession
either. Nor there is any suggestion for impairing the inte-
gration of the country. All that the film seems to suggest
is that the existing method of reservation on the basis of
caste is bad and reservation on the basis of economic back-
wardness is better. The film also deprecates exploita-
223
tion of people on caste considerations. This is the range
and rigor of the film.
The High Court, however, was of opinion that public
reaction to the film, which seeks to change the system of
reservation is bound to be volatile. The HIgh Court has also
stated that people of Tamil Nadu who have suffered for
centuries will not allow themselves to be deprived of the
benefits extended to them on a particular basis. It seems to
us that the reasoning of the High Court runs a foul of the
democratic principles to which we have pledged ourselves in
the Constitution. In democracy it is not necessary that
every one should sing the same song. Freedom of expression
is the rule and it is generally taken for granted. Every one
has a fundamental right to form his own opinion on any issue
of general concern. He can form and inform by any legitimate
means.
The democracy is a Government by the people via open
discussion. The democratic form of government itself demands
its citizens an active and intelligent participation in the
affairs of the community. The public discussion with people
participation is a basic feature and a rational process of
democracy which distinguishes it from all other forms of
government. The democracy can neither work nor prosper
unless people go out to share their views. The truth is that
public discussion on issues relating to administration has
positive value. What Falter Lippmann said in another context
is relevant here:
“When men act on the principle of intelli-
gence, they go out to find the facts …..
When they ignore it, they go inside themselves
and find out what is there. They elaborate
their prejudice instead of increasing their
knowledge.
In Maneka Gandhi v. Union of India, [1978]
2 SCR 621 Bhagwati J., observed at 696:
“Democracy is based essentially on
free debate and open discussion, for that is
the only corrective of Government action in a
democratic set up. If democracy means govern-
ment of the people by the people. it is obvi-
ous that every citizen must be entitled to
participate in the democratic process and in
order to enable him to intelligently exercise
his right of making a choice, free and general
discussion of public matters is absolutely
essential.”
224
The learned judge in Naraindas v. State
of Madhya Pradesh,[1974] 3 SCR 624 while
dealing with the power of the State to select
text books for obligatory use by students said
at 650:
“It is our firm belief, nay, a con-
viction which constitutes one of the basic
values of a free society to which we are
wedded under our Constitution, that there must
be freedom not only for the thought that we
cherish, but also for the thought that we
hate. As pointed out by Mr. Justice Holmes in
Abramson v. United States, 250 U.S. 616: “The
ultimate good desired is better reached by
free trade in ideas–the best test of truth is
the power of the thought to get itself accept-
ed in the competition of the market.” There
must be freedom of thought and the mind must
be ready to receive new ideas, to critically
analyse and examine them and to accept those
which are found to stand the test of scrutiny
and to reject the rest.”
In Sakal v. Union of India, [1962] 3 SCR
842 at 866, Mudholkar, J. said:
“This Court must be ever vigilent in
guarding perhaps the most precious of all the
freedoms guaranteed by our Constitution. The
reason for this is obvious. The freedom of
speech and expression of opinion is of para-
mount importance under a democratic Constitu-
tion which envisages changes in the composi-
tion of legislatures and governments and must
be preserved.”
Movie is the legitimate and the most important medium in
which issues of general concern can be treated. The producer
may project his own messages which the others may not ap-
prove of. But he has a right to “think out” and put the
counter appeals to reason. It is a part of a democratic
give-and-take to which no one could complain. The State
cannot prevent open discussion and open expression, however,
hateful to its policies. As Professor Fraund puts it: “The
State may not punish open talk, however, hateful, not for
hypocritical reason that Hyde Parks are a safety-valve, but
because a bit of sense may be salvaged from the odious by
minds striving to be rational, and this precious bit will
enter into the amalgam which we forge.” (Paul A. Freund-On
Understanding the Supreme Court 26 (1950).
“When men differ in opinion, both sides ought equally to
have
225
the advantage of being heard by the public.” (Benjamin
Franklin). If one is allowed to say that policy of the
government is good, another is with equal freedom entitled
to say that it is bad. If one is allowed to support the
governmental scheme, the other could as well say, that he
will not support it. The different views are allowed to be
expressed by proponents and opponents not because they are
correct, or valid but because there is freedom in this
country for expressing even differing views on any issue.
Alexander Meiklejohn perhaps the foremost American
philosopher of freedom of expression, in his wise little
study neatly explains:
“When men govern themselves, it is
they–and no one else–who must pass judgment
upon unwisdom and unfairness and danger. And
that means that unwise ideas must have a
hearing as well as wise ones, unfair as well
as fair, dangerous as well as safe, an Ameri-
can as well …… American ….. If then,
on any occasion in the United States it is
allowable, in that situation, to say that the
Constitution is a good document it is equally
allowable, in that situation, to say that the
Constitution is a bad document. If a public
building may be used in which to say, in time
of war, that the war is justified, then the
same building may be used in which to say that
it is not justified. If it be publicly argued
that conscription for armed service is moral
and necessary, it may likewise be publicly
argued that it is immoral and unnecessary. If
it may be said that American political insti-
tutions are superior to those of England or
Russia or German, it may with equal freedom,
be said that those of England or Russia or
Germany are superiors to ours. These conflict-
ing views may be expressed, must be expressed,
not because they are valid, but because they
are relevant ….. To be afraid of ideas,
any idea, is to be unfit for self government.”
(Political Freedom (1960) at 27). He argued,
if we may say so correctly, that the guaran-
tees of freedom of speech and of the press are
measures adopted by the people as the ultimate
rulers in order to retain control over the
Government, the people’s legislative and
executive agents.
Brandies, J., in Whitney v. California,
274 US 357,375-8 (1927) propounded probably
the most attractive free speech theory:
226
” ….. that the greatest menace to
freedom is an inert people; that public dis-
cussion is a political duty; …..It is
hazardous to discourage thought, hope and
imagination; that the path of safety lies in
the opportunity to discuss freely supposed
grievances and proposed remedies; and that the
fitting remedy for evil counsels is good
ones.”
What Archibald Cox said in his article
though on “First Amendment” is equally rele-
vant here:
“Some propositions seem true or false
beyond rational debate. Some false and harm-
ful, political and religious doctrine gain
wide public acceptance. Adolf Hitler’s brutal
theory of a ‘master race’ is sufficient exam-
ple. We tolerate such foolish and sometimes
dangerous appeals not because they may prove
true but because freedom of speech is indivis-
ible. The liberty cannot be denied to some
ideas and saved for others. The reason is
plain enough: no man, no committee, and surely
no government, has the infinite wisdom and
disinterestedness accurately and unselfishly
to separate what is true from what is debata-
ble, and both from what is false. To license
one to impose his truth upon dessenters is to
give the same licence to all others who have,
but fear to lose, power. The judgment that the
risks of suppression are greater than the harm
done by bad ideas rests upon faith in the
ultimate good sense and decency of free peo-
ple.” (Society Vol. 24 p. 8 No. 1
November/December 1986).
The problem of defining the area of freedom of expres-
sion when it appears to conflict with the various social
interests enumerated under Article 19(2) may briefly be
touched upon here. There does indeed have to be a compromise
between the interest of freedom of expression and social
interests. But we cannot simply balance the two interests as
if they are of equal weight. Our commitment to freedom of
expression demands that it cannot be suppressed unless the
situations created by allowing the freedom are pressing and
the community interest is endangered. The anticipated danger
should not be remote, conjectural or far fetched. It should
have proximate and direct nexus with the expression. The
expression of thought should be intrinsically dangerous to
the public interest. In other words, the expression should
be inseparably locked up with the action contemplated like
the equivalent of a “spark in a powder keg”.
227
Our remarkable faith in the freedom of speech and ex-
pression could be seen even from decisions earlier to our
Constitution. In Kamal Krishna v. Emperor, AIR 1935 Cal 636,
the Calcutta High Court considered the effects of a speech
advocating a change of Government. There the accused was
convicted under sec. 124(A) of Penal Code for making a
speech recommending ‘Bolshevik’ form of Government to re-
place the then existing form of Government in Calcutta.
While setting aside the conviction and acquitting the ac-
cused, Lord Williams, J., who delivered the judgment ob-
served (at 637):
“All that the speakers did was to
encourage the youngmen, whom he was address-
ing, to join the Bengal Youth League and to
carry on a propaganda for the purpose of
inducing as large a number of people in India
as possible to become supporters of the idea
of communism as represented by the present
Bolshevik system in Russia. It is really
absurb to say that speeches of this kind
amount to sedition. If such were the case,
then every argument against the present form
of Government and in favour of some other form
of Government might be allowed to lead to
hatred of the Government, and it might be
suggested that such ideas brought the Govern-
ment into contempt. To suggest some other form
of Government is not necessarily to bring the
present Government into hatred or contempt.”
To the same effect is the observation by
the Bombay High Court in Manohar v. Government
of Bombay, AIR 1950 BOM 210. There the writer
of an article in a newspaper was convicted for
an offence under the Press (Emergency Powers)
Act, 1931, for incitement to violence. The
writer had suggested the people to follow the
example of China by rising against Anglo-
American Imperialism and their agents. He had
also suggested his readers to pursue the path
of violence, as the Chinese people did, in
order that Anglo-American Imperialism should
be driven out of this country. Chagla C.J.,
while quashing the conviction said (at 2 13):
“It is true that the article does
state that the working class and the coiling
masses can get hold of power through the path
of revolution alone. But the expression ‘rev-
olution’ is used here, as is clear from the
context, in contradistinction to reformism or
gradual evolution. The revolution preached is
not necessarily a violent revolution.
228
XXX XXX XXX XXX
As the writer has not stated in this article
that the toiling masses should take up arms
and fight for their rights and thus achieve a
revolution we refuse to read this expression
as inciting the masses to violent methods.”
In Niharendu Dutt Majumdar v. Emperor, AIR
1942 FC 23, the Federal Court examined the
effects of a vulgar and abusive outburst
against the Government made by the accused for
which he was convicted under Rule 34 of the
Defence of India Rules. Gwyer, C.J., while
acquitting the person commented more boldly
(at 27):
“There is an English saying that
hard words break no bones; and the wisdom of
the common law has long refused to regard an
actionable any words which, though strictly
and liberally defamatory, would be regarded by
all reasonable men as no more than mere vulgar
abuse.
XXX XXX XXX XXX XXX
The speech now before us is full of them. But
we cannot regard the speech, taken as a whole
as inciting those who heard it, even though
they cried “shame shame” at intervals, to
attempt by violence or by public disorder to
subvert the Government for the time being
established by law in Bengal or elsewhere in
India. That the appellant expressed his opin-
ion about that system of Government is
true, but he was entitled to do so,; and his
reference to it were, we might almost say,
both common place and in common form, and un-
likely to cause any Government in India a
moments uneasyness. His more violent outburst
were directed against the then Ministry in
Bengal and against the Governor in Bengal in
his political capacity but we do not feel able
to say that his speech whatever may be thought
of the form in which it was expressed, exceed-
ed the legal limits of comment or criticism.”
Even the European Court’s approach in
protecting the freedom of expression is not
different although they have the extensive
list of circumstances for limiting the free-
dom. Article 10 of the European Convention of
Human Rights and Fundamental Freedom provides:
229
“(1) Every one has the right to freedom of
expression.
(2) The exercise of these freedoms, since it
carries with it duties and responsibilities,
may be subject to such formalities, condi-
tions, restrictions or penalties as are pre-
scribed by law and are necessary in a demo-
cratic society in the interests of national
security, territorial integrity or public
safety, for the prevention of health or mor-
als, for the protection of the reputation or
rights of others, for preventing the disclo-
sure of information received in confidence, or
for maintaining the authority and impartiality
of the judiciary.”
It appears that the second paragraph of Arti-
cle 10 virtually removes the right purportedly
guaranteed by the first paragraph. However,
the European Court in Handyside v. United
Kingdom, [1976] EHRR/737 observed at 754;
“The court’s supervisory functions
oblige it to pay the utmost attention to the
principles characterising a ‘democratic socie-
ty’. Freedom of expression constitutes one of
the essential foundations of such a society,
one of the basic conditions for its progress
and for the development of every man. Subject
to Article 10(2), it is applicable not only to
‘information’ or ‘ideas’ that are favourably
received or regarded as inoffensive or as a
matter of indifference, but also to those that
offend shock or disturb the State or any
sector of the population. Such are the demands
of that pluralism, tolerance and broadminded-
ness without which there is no ‘democratic
society’. This means, amongst other things,
that every ‘formality’, ‘condition’, ‘restric-
tion’ or ‘penalty’ imposed in this sphere must
be proportionate to the legitimate aim pur-
sued.”
This takes us to the validity of the plea put forward by
the Tamil Nadu Government. In the affidavit filed on behalf
of the State Government, it is alleged that some organisa-
tions like the Tamil Nadu Scheduled Castes/Scheduled Tribes
People’s Protection Committee, Dr. Ambedkar People’s Move-
ment, the Republican Party of India have been agitating that
the film should be banned as it hurt the sentiments of
people belonging to Scheduled Caste/Scheduled Tribes. It is
stated that the General Secretary of the Republican Party of
India has warned that his party would not hesitate to damage
the cinema
230
theatres which screen the film. Some demonstration made by
people in front of “The Hindu” office on March 16, 1988 and
their arrest and release on bail are also referred to. It is
further alleged that there were some group meetings by
Republican .Party members and Dr. Ambedkar People’s Movement
with their demand for banning the film. With these averments
it was contended for the State that the exhibition of the
film. will create very serious law and order problem in the
State.
We are amused yet troubled by the stand taken by the
State Government with regard to the film which has received
the National Award. We want to put the anguished question,
what good is the protection of freedom of expression if the
State does not take care to protect it? If the film is
unobjectionable and cannot constitutionally be restricted
under Article 19(2), freedom of expression cannot be sup-
pressed on account of threat of demonstration and proces-
sions or threats of violence. That would tentamount to
negation of the rule of law and a surrender to black mail
and intimidation. It is the duty of the State to protect the
freedom of expression since it is a liberty guaranteed
against the State. The State cannot plead its inability to
handle the hostile audience problem. It is its obligatory
duty to prevent it and protect the freedom of expression.
In this case, two Revesing Committees have approved the
film. The members thereof come from different walks of life
with variegated experiences. They represent the cross sec-
tion of the community. They have judged the film in the
light of the objectives of the Act and the guidelines pro-
vided for the purpose. We do not think that there is any-
thing wrong or contrary to the Constitution in approving the
film for public exhibition. The producer or as a matter of
fact any other person has a right to draw attention of the
Government and people that the existing method of reserva-
tion in education institutions overlooks merits. He has a
right to state that reservation could be made on the basis
of economic backwardness to the benefit of all sections of
community. Whether this view is right or wrong is another
matter altogether and at any rate we are not concerned with
its correctness or usefulness to the people. We are only
concerned whether such a view could be advocated in a film.
To say that one should not be permitted to advocate that
view goes against the first principle of our democracy.
We end here as we began on this topic. Freedom of ex-
pression which is legitimate and constitutionally protected,
cannot be held to ransom, by an intolerant group of people.
The fundamental freedom
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under Article 19(1)(a) can be reasonably restricted only for
the purposes mentioned in Articles 19(2) and the restriction
must be justified on the anvil of necessity and not the
quicks and of convenience or expediency. Open criticism of
Government policies and operations is not a ground for
restricting expression. We must practice tolerance to the
views of others. Intolerance is as much dangerous to democ-
racy as to the person himself.
In the result, we allow these appeals, reverse the
judgment of the High Court and dismiss the writ petitions of
the respondents. In the circumstances of the case, however,
we make no order as to costs.
Y.L. Appeals allowed.
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