Union Of India vs K. M. Shankarappa on 6 November, 2000

Supreme Court of India
Union Of India vs K. M. Shankarappa on 6 November, 2000
Bench: S.N.Variava, V.N.Krare
           CASE NO.:
Appeal (civil) 3106 1991




DATE OF JUDGMENT:	06/11/2000

S.N.Variava, V.N.Krare



This Appeal is against a Judgment dated 2nd April,
1990 in Writ Petition No. 4335 of 1979. The Respondent
(herein) had challenged the virus of certain provisions of
the Cinematograph Act, 1952 (hereinafter called the said
Act) as amended by Act No. 49 of 1981. In the Writ
Petition the challenge was to the constitutional validity of
Sections 3(1), 4(1), 5D, 6(1) and 7(1). By the impugned
Judgment Sections 3(1), 4(1), 5D and 7(1) were held to be
constitutionally valid. However, portions of Section 6(1)
have been held to be unconstitutional and those portions
have been struck down. It must be mentioned that, in the
case of K. A. Abbas v. Union of India reported in AIR
1971 S.C. 481, the validity of certain provisions of the
said Act had been challenged, inter alia, on the ground that
an appeal from a decision of the Board should lie to a Court
or to an independent Tribunal and not to the Central
Government. The Solicitor General made a statement that the
Government would appropriately amend the Act to set up a
Tribunal. This Court commented as follows: “We express our
satisfaction that the Central Government will cease to
perform curial functions through one of its Secretaries in
this sensitive field involving the fundamental right of
speech and expression. Experts sitting as a Tribunal and
deciding matters quasi-judicially inspire more confidence
than a Secretary and therefore, it is better that the appeal
should lie to a court or Tribunal.”

It is pursuant to this statement and in keeping with
the opinion expressed by this Court that the Tribunal was
established. Section 5C of the said Act now provided for an
appeal to a Tribunal. Section 5D now provided that the
Government is to constitute an Appellate Tribunal. The
Tribunal is to consist of a Chairman and not more than four
other members. The Chairman of the Tribunal is to be a
person who is a retired Judge of a High Court, or a person
who is qualified to be a Judge of a High Court. The other
members should be such persons who are qualified to judge
the effect of the film on the public. Thus the Tribunal is
an expert body which has been set up for the purposes of
considering, amongst other things, the effect of the films
on the public. However the Government still sought to
retain powers by enacting Section 6(1). For a better
understanding of the question under consideration, it would
be appropriate to set out Section 6(1). It reads as
follows: “6(1): Notwithstanding anything contained in this
part, the Central Government may, of its own motion, at any
stage, call for the record of any proceeding in relation to
any film which is pending before, or has been decided by,
the Board, or as the case may be, decided by the Tribunal
(but for including any proceeding in respect of any matter
which is pending before the Tribunal) and after such
inquiry, into the matter as it considers necessary, make
such order in relation there to as it thinks fit, and the
Board shall dispose of the matter in conformity with such
order: Provided that no such order shall be made
prejudicially affecting any person applying for a
certificate or to whom a certificate has been granted, as
the case may be, except after giving him an opportunity for
representing his views in the matter: Provided further that
nothing in this sub- section shall require the Central
Government to disclose any fact which it considers to be
against public interest to disclose.”

Thus even after establishing the Appellate Tribunal,
by means of Section 6(1), the Central Government sought to
retain with it the power to make such orders as it thought
fit. In effect what the Government is seeking to do is to
exercise power of review or revision over the decisions of
the Board or the Tribunal. Mr. Goswami sought to submit
that it was necessary to retain such a power because it has
been found that on certain occasions, after the film has
been cleared by the Board or by the Tribunal, there was
public resentment to the film and law and order situations
arose. He submitted that such a situation would necessitate
a review and/or revision of the order passed by the
Tribunal. He submitted that under our Constitution there
was no strict separation of powers. He submitted that
judicial functions could also be discharged by the Central
Government by way of conferment of revisional powers. We
are unable to accept the submission of the learned counsel.
The Government has chosen to establish a quasi- judicial
body which has been given the powers, inter alia, to decide
the effect of the film on the public. Once a quasi-judicial
body like the Appellate Tribunal, consisting of a retired
Judge of a High Court or a person qualified to be a Judge of
a High Court and other experts in the filed, gives its
decision that decision would be final and binding so far as
the Executive and the Government is concerned. To permit
the Executive to review and/or revise that decision would
amount to interference with the exercise of judicial
functions by a quasi-judicial Board. It would amount to
subjecting the decision of a quasi-judicial body to the
scrutiny of the Executive. Under our Constitution the
position is reverse. The Executive has to obey judicial
orders. Thus, Section 6(1) is a travesty of the rule of law
which is one of the basic structures of the Constitution.
The Legislature may, in certain cases, overrule or nullify
the judicial or executive decision by enacting an
appropriate legislation. However, without enacting an
appropriate legislation, the Executive or the Legislature
cannot set at naught a judicial order. The Executive cannot
sit in an appeal or review or revise a judicial order. The
Appellate Tribunal consisting of experts and decides matters
quasi-judicially. A Secretary and/or Minister cannot sit in
appeal or revision over those decisions. At the highest,
the Government may apply to the Tribunal itself for a
review, if circumstances so warrant. But the Government
would be bound by the ultimate decision of the Tribunal. We
fail to understand the apprehension expressed by the learned
counsel that there may be a law and order situation. Once
an Expert Body has considered the impact of the film on the
public and has cleared the film, it is no excuse to say that
there may be a law and order situation. It is for the
concerned State Government to see that the law and order is
maintained. In any democratic society there are bound to be
divergent views. Merely because a small section of the
society has a different view, from that as taken by the
Tribunal, and choose to express their views by unlawful
means would be no ground for the Executive to review or
revise a decision of the Tribunal. In such a case, the
clear duty of the Government is to ensure that law and order
is maintained by taking appropriate actions against persons
who choose to breach the law. We, therefore, see no
substance in the Appeal. The same stands dismissed. There
will, however, be no Order as to costs.

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