A

B

c

D

S. RANGARAJAN ETC.

v.

P. JAGJIVAN RAM & ORS.

MARCH 30, 1989

[K.N. SINGH, K. JAGANNATHA SHETTY AND

KULDIP SINGH, JJ.]

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 expression.

Constitution

of India-Articles 19( 1)(a) and 19(2)-Freedom of

speech and expression-Reasonable restrictions must be justified on

anvil

of necessity and not quicks-Sand of convenience and

expediency-Obligatory duty

of

State to protect freedom of expression. 'r·

E The appellant, S. Rangarajan is a film producer. He produced a

Tamil film "Ore Oru Gramathile" and applied for certificate for exhi­

bition of the film. The examination committee upon seeing the film

refused to

grant the Certificate but on a reference being made to the

2nd Revising Committee for review and recommendation, the

Commit­

tee hy a majority of 5:4 recommended the grant of a 'U' certificate

F subject to deletion of certain scenes.

On 7 .12.87 'U' certificate was granted which was challenged 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

G

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appellant-producer was revoked.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 pro-

H

ducer of the film and the other by the

Union of India have been filed by

204

. ' ..

-

-

-+-

S. RANGARAJAN v. P.J. RAM 205

special leave of challenging the decision of the High Court.

The principal contentions raised on behalf of the appellants were:

(i)

that the fnndamental right of freedom of free expression guaranteed

under the Constitntion covers even the medinm 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 gnaranteed nnder the Constitution.

It was asserted that the

theme

of the fllm is that reservation could be on the basis of economic

backwardness instead of caste.

A

B

c

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 protrayed in the film, as they are depicted in a

biased manner and reaction to the film in Tamil Nadu

is bound to be D

volatile and likely to create

law and order problem. Allowing the

appeals, this Court,

-I 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 E

expression. Movie motivates thought and action and assnres 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 mnch potential for evil as

it was for good. It has an equal potential to instil or cultivate violent

or good behaviour.

[2110-E; 212G; 2130]

Censorship by prior restraint is, therefore, not only desirable but

also necessary.

[213E]

F

The Censors Board should exercise considerable circumspection on

movies affecting the morality

or decency of our people and cultnral G

heritage

of the country. The moral values in particular, should not be

allowed to be sacrificed in the guise of social change or cnltural

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 H

/

206 SUPREME COURT REPORTS [1989] 2 S.C.R.

A 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 cam1ot constitutionally he

restricted under Article 19(2), freedom of expression cannot

he sup-

B

pressed on account of threat of demonstration

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 prevant it and -

protect the freedom of expression. [230C-D I

c

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

D

provided for the purpose. There is nothing wrong or contrary to the

Constitution 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(l)(a) guarantees to all

citizens the right to freedom of speech and expression. The freedom of }---

E

the expression means the right to express one's opinion hy 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. The communication of ideas could be made through -

any medium, newspaper, magazine or movie. But this right is sub,ject to

reasonable restrictions on grounds set out unde.r Article 19(2). Reason-

F

able limitations can be put in the interest of sovereighty 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

G

action by the respective authorities. The producer who has invested a

large capital should not be made to wait needlessly.

He has a statutory

f

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. It is not proper to form an opinion

hy dwelling upon stray sentences

or isolated passages disregarding the

H

main theme. [219E;

220B-C]

-

S. RANGARAJAN v. P.J. RAM 207

Freedom of expression is the rule and it is generally taken for A

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 discussion.

The democratic form of government itself demands its citizens an B

active

and intelligent participation is a basic features and a rational

~ process of democracy which distinguishes it from all other forms

of govt. Public discussion on issues relating to administration had

positive value. l223D-E]

Our commitment to freedom of expression demands that it cannot

be suppressed unless the situations created

by allowing the freedom are C

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 D

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 tilm 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 E

no utterance in the tilm 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

backward­

ness is better. The tilm also deprecates exploitation of people on caste p

considerations. [222G-H;

223A]

The fundamental freedom under Art. 19(l)(a) can be reasonably

restricted only for the purposes mentioned in Art. 19(2) and the

restric­

tion must be justified on the anvil of necessity and not the quicks and of

convenience

and expediency.

Open criticism of Government policies G

-~. and operations is not a ground for restricting expression. We must

practice tolerance to the views of others. Intolerance

is as much

danger­

ous to democracy as to the person himself. l230H; 231A-B]

The Court allowed the appeals, set aside the judgment of the High

Court and dismissed the writ petitions. [23IB-C] H

208 SUPREME COURT REPORTS [1989] 2 S.C.R.

A 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

B 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. --4

Union of India, [1962] 3 SCR 842; Whitney v. California, )274] U.S.

c

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, [1975] EHRR/737 at p. 754 referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1668

and 1669 of 1988.

From the Judgment and Order dated 29.4.1988 of the Madras

D High

Court in W.R. Nos. 469 and 488 of 1988.

E

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 Mathur, 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

F 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.

G

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 Brahm in 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

H working in a local Church responds with gratitude.

He divises a

-

S. RANGARAJAN v. P.J. RAM {SHETfY, J.] 209

-{· method to help Gayathri because it was through Sastry's father that he

A

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

communities' indentified on caste consideration.

On the basis of the

false certificate, Karuppayee gets admitted to college and enters B

1 I.A.S. witness to this arrangement is the brother-in-law of Tahsildar

;..

called Anthony who later turns out to be a villian of the piece.:-

"Years later, Karuppayee, who was working in Delhi is sent to a

-

rural village called Annavayil as a Special Officer for flood relief

operations.

Her father, Shankara Sastry happens to work in the same

c

village as Block Development Officer. However, both of them pretend f,-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 D

fraudulent means by which she got the caste certificate. His attempt

is

to extract money from her frequently.

One evening when he visits

Karuppayee's house, he

is confronted by Shankara Sastry who puts a

-J.

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 E

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 peaceful manner for her release. They also send petitions to the

--'

Government."

. .,

F

"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 considera-

~

tion and that would be detrimental to national integration. They also G

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 receives intimation from

Government that in the light of petitions received from the public, the

case against Karuppayee and her father stands withdrawn. Karup-

payee goes back to her Government job with jubilent people all

H

round."

A

B

c

D

E

F

G

210 SUPREME COURT REPORTS [1989] 2 S.C.R.

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 Commit-

tee 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

Government

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 exhibi­

tion

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 certificate. 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.

f­

~-

In these appeals, the fundamental point made by Mr. Soli Sorab­

jee, learned counsel for the producer is about the freedom of free

H expression guaranteed under our Constitution even for the medium of

-

S. RANGARAJAN v. P.J. RAM [SHETI'Y, J.J 211

movies. The counsel argued that the opinion on the effect of the film

should not be rested on isolated passages disregarding 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

tile 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 correctness or legality of the

views expressed

in the film and the Court cannot limit the expression

A

B

·-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.

C

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 observa­

tions may be made as to the utility of movies and the object of the

film D

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

.-1,. wa~ a business "pure and simpe originated and conducted for profit,

like

other

spectacles." It was considered strictly as an "amusement E

industry". It was so held in 1915 by the unanimous 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 (Encyclo-

·-', pedia Britinnica) (1965 Vol. 15 p. 902). The later decisions of the F

t" 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 Amendment.

(See Burstyn v. Wilson, 343

U.S. 495). The First Amendment 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 G

....I. exception for the exercise of the right. 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 H

212 SUPREME COURT REPORTS [1989] 2 S.C.R.

A determine where discussion ends and incitement or attempt begins. -+­

The core of his position was that the First Amendment protects only

utterances that seeks acceptance

via the democratic process of dis­

cussion and agreement. But

"Words that may have all the effect of

force" calculated to achieve its goal by circumventing the democratic

process are however, not so protected.

B

c

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, writing, printing, picture or in any

other manner. It would thus include the freedom of communication

and the right to propagate 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 reasonable limi­

tations can be put in the interest of sovereignty and integrity of India,

D the security of the State, friendly relations with foreign States, public

order, deceny

or morality or in relation to contempt of court, defama-

tion 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

}-

E 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 Constitution. The decisions

bearing on the First Amendment are, therefore, not useful to

us except

F the broad principles and the purpose of the guaranty.

(

Movie doubtless enjoys the guaranty under Article 19( l)(a) but

there

is one significant difference between the movie and other modes

of

co~munication. The movie cannot function in a free market place

like the newspaper, magazine or advertisement. Movie motivates

,.

G thought and action and assures a high degree of attention and reten­

tion.

It makes its impact simultaneously arousing the visual and aural

}­

senses. The focusing of an intense light on a screen with the dramatiz-

ing

of facts and opinion makes the ideas more effective. The combina­

tion

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

H minds of spectators.

In some cases, it will have a complete and im-

l

+-

S. RANGARAJAN v. P.J. RAM [SHETI'Y, J.] 213

mediate influence on, and appeal for every one who sees it. In view of

the scientific improvements in photography and production the pre-A

sent movie is a powerful means of communication. 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

emotions 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

children." (See Reader in Public Opinion

and Communication Second Edition by Bernard Berelson and Morris

Janowitz p. 390). The authors of this Book have demonstrated (at

391

B

c

to 401) by scientific tests the potential of the motion pictures in forma­

tion 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

/"' · significantly affect the attitude of an individual or group, continual

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. Censor­

ship by prior restraint

is, therefore, not only desirable but also

D

necessary.

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

E

___... guaranty of free speech is in unqualified terms. This essential dif-

. ference was recognised by Douglas,

J., with whom Black, J., con-

p ..,

curred 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 Constitution for

"reasonable" regulation of the press such India has G

included in hers, there would be room for argument that

censorship

in the interests of morality would be permis­

sible. 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. H

214 SUPREME COURT REPORTS [1989) 2 S.C.R.

Different questions may arise as to censorship of some

i

A

news when the nation is actually at war. But any possible

exceptions are extremely limited."

The Cinematograph Act 1952 ("The Act") which permits cen-

sorship

on movies is a comprehensive enactment. Secttion 3 of the Act

B provides for constitution

of Board of Film Censors. Section 4 speaks of

f

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 exhibi-

c

tion, such a certificate is given which is called

'U' certificate.

Section 5(a) provides principles for guidance in certifying films. ---

It is significant to note that Article 19(2) has been practically read into

Section

5(B)(l). Section 5(C) confers right of appeal to Tribunal

against refusal

of certificate.

Under Section 6, the Central Govern-

D

ment 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 Cinematograph }-

(Certification) Rules 1983 have been framed. Under Section 5(B)(2)

E

the Central Government has prescribed certain guidelines for the

Censors Board. Guideline (1) relates to the objectives

of film censor-

ship.

The Board shall ensure that: (a) the medium of film remains

responsible

and sensitive 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.

~

F

'

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

G sensibilities

are not offended by vulgarity, obscenity and depravity;

f

(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.

H Guideline (3) also requires the Board to ensure that the film: (i)

S. RANGARAJAN v. P.J. RAM ISHElTY, J.] 215

is judged in its entirety from the-point of view of its overall impact and;

(ii) is examined in the light of contemporary 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 standands of society. There­

fore, 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 Constitu-

tion Bench

of this court considered important questions 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, deal­

ing in particular prostitution. 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 correspondence with the Board,

appealed to the Central Goverrunent. The Goverrunent 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 Solicitor

A

B

c

D

E

·.,.. General stated before the C~urt that the Goverrunent would set on F

· 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. G

With regard to the power of pre-censorship, Hidayatullah,

C.J.,

observed (at473-74): "The task of the censor is extremely delicate

The standards that

we set out for our censors must make a H

A

B

c

D

E

F

216 SUPREME COURT REPORTS [1989) 2 S.C.R.

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

literature include within themselves a comrehensive, 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 with­

out 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 every­

thing, 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."

Recently, Sabyasachi Mukharji, J., in Ramesh v. Union of India,

[1988) 1SCC868 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 observa­

tion

of Vivian Bose, J., as he then was, in the Nagpur High Court in

the case of Bhagwati Charan Shukla v. Provincial Government, AIR

1947 Nag 1(at676): "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.

l

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 reasonable man or as they say in

English law, "the man on the top of a Cl&mpham

omnibus."

We affirm and reiterate this principle. The standard to be

G applied

by the Board or courts for judging the film should be that of an

j

ordinary man of common sense and prudence and not that of an out of

the ordinary or hypersensitive 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

ncit be

H allowed to be sacrificed

in the guise of social change or cultural assimi-

'

J. ..

-

S. RANGARAJAN v. P.J. RAM [SHETIY, J.] 217

lation. Our country has had the distinction of giving birth to a galaxy of A

great sages and thinkers. The great thinkers and sages through their

life and conduct provided principles for people to follow the path of

right conduct. There have been continuous efforts at rediscovery and

reiteration of those principles. Adi-guru Shankaracharya, Ramanu­

jacharya, Madhwacharya, Chaitanya Maha Prabhu, Swami Ram

Krishan Paramhansa, Guru Nanak Sant Kabir and Mahatma Gandhi, B

have all enlightened our path.

If one prefers to go yet further back, he

will find

"TIRUKKURAL" the ethical code from Tiruvalluvar teach-

ing which

is

"a general human morality and wisdom." Besides, we

have the concept of "Dharam" (righteousness 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 C

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

1

effect to lower the moral standards of those who see it. Krishna Iyer, D

J., in Rajkapoor v. Laxman, I 1980 I 2 SCR 512 in words meaningful

expressed similar thought. The learned Judge said (at 517):

"The ultimate censorious power over the Censors be­

longs to the people and by indifference, laxity or abetment,

pictures which pollute public morals are liberally certified, E

the legislation, meant by Parliament 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 F

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 review-

ing the film with hot haste. In the absence of a First Revising Commit-G

tee 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 H

A

B

c

D

E

F

G

218

SUPREME COURT REPORTS 11989] 2 S.C.R.

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

constitution

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 Commit-

tee. In the instant case, the Chairman did not constitute the first Revis-

ing 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 refer-

red to

as the said Act), the Central Goverment hereby

directs that any power, authority or jurisdiction exercisable

by the Board of film, Certification (hereinafter referred to

as the Board) in relation to matters specified in sec. 4,

sub-secs. (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

2. Ms. Maithreyi Ramadhurai

3.

Dr. B.K. Chandrashekar

xxx xxx xxx xxx''

Calcutta

Madras

Bangalore

This order clearly states that the power of the Board shall also be

H exercisable by the specified members within their regional office. For

+

_._

,.

·---

~-

...

)>--

"4

-

S. RANGARAJAN v. P.J. RAM ISHETIT, J.] 219

-k 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

I

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 observation 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 applica-

tion. 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 ac\ion by the respective 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

spread·

ing 'Kulachar' which is 'Poisonous message' to the depressed classes not

to educate their children.

The complaint, if true, is serious. We,

there·

.l

fore, 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

profession you know and you can educate yourself

as a

cobbler."

A

B

c

D

E

F

G

H

220 SUPREME COURT REPORTS [1989) 2 S.C.R.

A Whil.e 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, Vanak­

kam". The song thus ends with a happy note and the cobbler agrees to

B 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

C

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 interests of depressed classes.

The criticism on the alleged comments

on Dr. Ambedkar is

equally unsustainable. The confusion perhaps is due to the pronoun-

D ced accent

of an English word in the course of Tamil conversation. The

matter arises in this

way:

Sas try 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

E 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

F High Court.

The last complaint and really the nub of the case for the respon­

dent

is about the reel No. 14 covering the court scene where Karup­

payee and

Sastry are prosecuted for offence of obtaining a false caste

certificate.

The reel No. 14 contains almost a dialogue between the

G 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 consti­

tuency.

Then the prosecution lawyer puts a question "why do you

regret this Madam? Was not 'Bharat Matha' under shackles then?"

H She replies: "You are right. Then "Bharat Matha" was in chains

i

t

1

-~-

/-

+

....

··---

I

•

S. RANGARAJAN v. P.J. RAM [SHETfY, J.] 221

(Vilangu, is the Tamil word used for shackles which also means

animals). Nt>w "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 pro-

fession.

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 barriers Sir. You have made propaganda in nook

and comer stating "Be an Indian, Be an Indian". And ifI 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 communal considerations, from Kashmir to Kanya-

kumari, 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 backward

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:

A

B

c

D

E

F "It is preposterous and offensive to claim that education G

was independent when India

was under British rule and

that, after independence it

is not

there."

The High Court also said:

"That any denigration of Rule of law would never H

222

A

SUPREME COURT REPORTS [1989) 2 S.C.R.

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

B politicians, who are instigating the masses on the basis of caste and

c

language, etc., the High Court remarked:

·

"If this sort of decrying India for being an indepen­

dent 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 glorification 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."

D 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 suf-

E fered for Centuries, and at a time when they have not at­

tained equality and when their valuable rights which are

secured under the Constit\ition is attempted 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 happened

in

p 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

G 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 integration 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

H

of economic backwardness is better. The film also deprecates exploita-

'

S. RANGARAJAN v. P.J. RAM {SHETIY, J.) 223

Jr

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

ruso 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 Con-

A

B

- stitution. 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 issu'i of general concern. He can form and inform by

-' any legitimate means:

·c

The democracy is a Government by the people via open discus­

sion. The democratic form

of government itself demands its citizens an

active

and intelligent participation in the affairs of the community. The D

public discu.ssion 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: E "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

tpeir knowledge.

In Maneka Gandhiv. Union of India, [197812 SCR 621 Bhagwati

J., observed at 696:

"Democracy is based essentially on free debate and

open discussion, for that

is the only corrective of Govern­

ment action

in a democratic set up. If democracy means

government of the people

by the people, it is obvious that

every citizen must be entitled to participate in the demo­

cratic 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."

F

G

H

224 SUPREME COURT REPORTS [19891 2 S.C.R.

The learned judge in Naraindas v. State of Madhya Pradesh, -1-

A

[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 conviction which consti-

lutes one

of the basic values of a free society to which we

B are wedded under our Constitution, that there must be I 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

c

get itself accepted 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."

D 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

.J-

Constitution. The reason for this is obvious. The freedom

E

of speech and expression of opinion is of paramount

importance under a democratic Constitution which en-

visages changes in the composition of legislatures and

gov-

ernments and must be

preserved."

Movie is the legitimate and the most important medium in which

)'-

F issues of general concern can be treated. The producer may project

his own messages which the others may not approve

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

G punish open talk, however, hateful, not for hypocritical reason that

f

Hyde Parks are a safety-valve, but because a bit of sense may be

solvaged 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).

H "When men differ in opinion, both sides ought equally to have

S. RANGARAJAN v. P.J. RAM [SHETIT, J.] 225

.Ir-

the advantage of being heard by the public." (Benjamin Franklin). If

oµe is allowed to say that policy of the government is good, another is

A

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 B

...

views on any issue .

Alexander Meiklejohn perhaps the foremost American philo-

-

sopher of freedom of expression, in his wise little study neatly explains:

"When men govern themselves, it is they-and no

c

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, un American as well ......

American ..... If then, on any occasion in the

United

States it is allowable, in that situation, to say that the Con- D

stitution 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'iirgued that conscription for armed service is moral E

and necessary, it may likewise be publicly argued that it is ..

immoral and unnecessary. If it may be said that American

political institutions 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 conflicting views may be expressed, must be F

k

expressed, not because they are valid, but because they ate

relevant ..... To be afraid of ideas, any id.ea, is to be unfit

for self government." (Political Freedom (1960) at 27). He

argued, if we may say

so correctly, that the guarantees of

freedom

of speech and of the press are measures adopted

by the people as the ultimate rulers

in order to retain con-G

trol over the Government, the people's legislative and

ex-

ecutive agents.

Brandies, J., in Whitney v.

California, 274 US 357, 375-8 (1927)

propounded probably the most attractive free speech theory:

H

A

B

c

D

E

F

G

H

226

SUPREME COURT REPORTS [1989] 2 S.C.R.

" . . . . . that the greatest menace to freedom is an -1-

inert people; that public discussion is a political duty; .....

It is hazardous to discourage thought, hope and imagina­

tion; that the path of safety lies in the opportunity to dis­

cuss 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 Amend-I

ment" is equally relevant here: r4.

"Some propositions seem true or false beyond

rational debate. Some false and harmful, political and

religious doctrine gain wide public acceptance. Adolf

Hitler's brutal theory of a 'master race'

is sufficient

example. We

tolerate such foolish and sometimes dan-~

gerous appeals not because they may prove true but

because freedom of speech

is indivisible. 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 debatable, 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

people." (Society Vol. 24 ...

p. 8 No. 1 November/December 1986).

The problem of defining the area of freedom of expression when

it appears to conflict with the various social interests enumerated

under Article 19(2) may briefly be touched upon here. There does

':f·

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 equiva­

lent

of a

"spark in a powder keg".

-

S. RANGARAJAN v. P.J. RAM [SHE1TY, J.J 227

Our remarkable faith in the freedom of speech and expression

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

con[Victed under sec. 124(A) of

Penal Code for making a speech recommending 'Bolshevik' form of

Government to replace the then existing form of Government

in

Calcutta. While setting aside the conviction and acquitting the

accused, Lord Williams,

J., who delivered the judgment observed (at

637):

A

B

"All that the speakers did was to encourage the

youngmen, whom he

was addressing, to join the Bengal C

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 D

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 migbt be suggested

that such ideas brought the Government 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 Higb 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 F

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 convic­

tion said (at 213):

"It is true that the article does state that the working

class and the coiling masses ca11 get hold of power through

the path of revolution aione. But the expression 'revolu­

tion'

is used here, as is clear from the context,

in con­

tradistinction to reformism or gradual evolution. The

G

revolution preached is not

necessl!rily a violent revolution. H

A

B

c

D

E

F

G

228

SUPREME COURT REPORTS [19891 2 S.C.R.

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 22, the

Federal Court examined the effects of a Wlgar and abusive outburst

against the Government made

by the accused for which he was con­

victed under Rule

34 of the Defence of India Rules.

Owyer, 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 reason­

able men

as no more than mere vulgar abuse.

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 inter­

vals, 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 opinion 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 unlikely 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, exceeded the legal

limits of comment or

criticism."

Even the European Court's approach in protecting the freedom

of expression is not diffferent although they have the extensive list of

circumstances for limiting the freedom. Article 10 of the European

H Convention of Human Rights and Fundamental Freedom provides:

S. RANGARAJAN v. P.J. RAM [SHETfY, J.] 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 for­

malities, conditions, restrictions

or penalties as are pres­

cribed by

law and are necessary in a democratic society in

A

the interests of national security, territorial integrity or B

public safety, for the prevention of health or morals, for

the protection

of the reputation or rights of others, for

preventing the desclosure of information received

in con­

fidence,

or for maintaining the authority and impartiality of

the

judiciary."

i,.._ It appears that the second paragraph of Article 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;

c

+

"The court's supervisory functions oblige it to pay the D

utmost attention to the principles characterising a 'demo­

cratic society'. 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 ev-

ery man.

Subject to Article 10(2), it is applicable not only

to 'information' or 'ideas' that are favourably received or E

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 broadmindedness without which

there is no 'democratic society'. This means, amongst other

things, that every 'formality', 'condition', 'restriction' or F

'penalty' imposed in this sphere must be proportionate to

the legitimate aim

pursued."

This takes us to the validity of the plea put forward by the Tamil

N adu Government. In the affidavit filed on behalf of the State

Government, it is alleged that some organisations like the Tamil N adu G

Scheduled Castes/Scheduled Tribes People's Protection Committee,

Dr. Ambedkar People's Movement, 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 H

B

c

D

E

F

G

230

SUPREME • 'OURT REPORTS [1989] 2 S.C.R.

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 averrnents 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

suppressed on account of threat

cf demonstration and processions 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 pre­

vent 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 section of the community. They

have judged the

film in the light of the objectives of the Act and the

gui3elines provided for the purpose. We do not think that there is

anything 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 Goverrunent and people

that the existing method of reservation in education institutions over­

looks 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 expression

which

is legitimate and constitutionally protected, cannot be held to

H ransom, by an intolerant group of people. The fundamental freedom

-~

S. RANGARAJAN v. P.J. RAM [SHETIY, J.[ 231

under Article ·19(1)(a) can be reasonably restricted only for the A

purposes mentioned in Articles

19(2) and the restriction must be

justified on the anvil of necessity and not the quicks and of con­

venience

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 B

democracy

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. C