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2015 (3) TMI 896 - GUJARAT HIGH COURTRefusal of tax concession by State to a film on the ground that the film is based on a controversial subject of homosexuality - does the State policy granting such concession to all Gujarati films barring those excepted in the policy itself would permit the authority to exercise such power in the present case - Held that:- First the initial hesitation of the Commissioner of Entertainment Tax in granting exemption was that the film had received "A" certificate. That is how he issued the first notice calling upon the petitioner why on such ground exemption should not be refused. This ground was neither germane nor flowing from the Government policy. Merely because a film is certified by the Censor Board for being viewed by audience not below the age of 18 years, would not mean that it falls in any of the categories mentioned in para 4. The Commissioner thus laboured under a complete misconception in this regard. Wisely and rightly, therefore, he quickly dropped this objection. There is no prohibition against exhibiting this film. In any case, the Commissioner of Entertainment Tax was not controlling exhibition of the film in different cinema halls in the State or outside. He was only called upon to judge whether the film should receive tax concession or not. Even without tax concession, the producer could as well have exhibited the film in different cinema halls. His conclusion that the film will lead to friction is not based on any material. He has not referred to any data to establish this conclusion. Further, his task was to decide application for tax exemption and the question of law and order was not within his purview. Neither Home Department nor the police authorities seem to have suggested to him that they will not be able to manage law and order situation if the film is granted tax exemption. Right to freedom of speech and expression guaranteed under article 19(1) of the Constitution is zealously guarded by the constitutional courts. A film is considered a powerful tool for expressing one's ideas and thoughts. Any restriction on such right if not authorized under clause (2) of article 19 must be struck down. If we accept this proposition that the petitioner has right to freedom of speech and expression through making and exhibiting a film on a topic of his choice, any restriction on such right must be reasonable and backed by authority of law for the grounds stated in article 19(2) of the Constitution. One may argue in the present case that exhibition of the film is not prohibited and only tax concession is denied. Even this will seriously restrict the petitioner's right to freedom of expression. When all other Gujarati colour films barring small exceptions noted are being granted tax exemption, insisting the petitioner to exhibit his film in the market after paying full entertainment tax would severely restrict the audience of the film. This would be a serious affront on the petitioner's right to freedom of speech and expression. Unreasonable or excessive tax on media is considered one of the facets of denying the rights under article 19(1) of the Constitution as held by the Supreme Court in the case of Indian Express Newspapers (Bombay) P. Ltd. v. Union of India[1984 (12) TMI 65 - SUPREME Court]. In the said case, the court was considering the challenge to a notification issued by the Central Government under section 25(1) of the Customs Act withdrawing certain exemptions to import of newsprint used for publication of newspapers. Court only recognize the right of a film maker to make a film on the topic and exhibit the same as long as it does not offend the restrictions envisaged in clause (2) of article 19 of the Constitution and to seek and insist on getting tax exemption if the film falls within the prescribed criteria laid down by the Government in its policy declaration and not be denied the same merely because the subject is controversial. The issue perhaps embarrasses some members of the society and is talked in hushed whispers, that however would not mean that it falls in the categories mentioned in para 4 of the Government policy. A controversial subject is different from a controversial film and the film being controversial and a film being objectionable are yet two different aspects. All in all, from the dialogues mentioned by the Commissioner as objectionable, we can safely conclude that the objections were wholly misguided based on fallacious premises. His role was not that of the Censor Board. His conclusions thus were erroneous. - Decided in favour of Appellant.
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