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CASE NO.:

Appeal (civil) 3106 of 1991

PETITIONER:

UNION OF INDIA

Vs.

RESPONDENT:

K. M. SHANKARAPPA

DATE OF JUDGMENT: 28/11/2000

BENCH:

V.N. Khare & S.N. Variava.

JUDGMENT:

S. N. VARIAVA, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

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

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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

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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.