TMI Blog1989 (3) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 communities 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 brother-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 Officer 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate 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. 5. 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 certificate. The Division Bench largely depended u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 discussion and agreement. But Word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d immediate 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 communication. It is said: as an instrument of education it has unusual power to impact 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 effect profoundly the patterns of conduct of children. (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 pictures information 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 fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst 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. 14. Under Section 8 of the Act, the Rules called the Cinematograph (Certification) Rules 1983 have been framed. Under Section 5(B)(2) the Central Government has prescribed certain guidelines for the Censors Board, Guidelines (1) relates to the objectives of film censorship. 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. 15. Guideline (2) requires the Board to ensures that : (i) antisocial 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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. 19. With regard to the power of pre-censorship, Hidayatullah, C.J., observed (at 473-74): The task of the censor is extremely delicate.... The standards that we set out our censors must make a 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 comprehensive, 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 embarrassed or disgusted at 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 wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f our civilization 3 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 4 sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of those who see it. Krishna Iyers, J., in Rajkapoor v. Laxman 1980CriLJ436 in words meaningful expressed similar thought. The learned Judge said (at 517): 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 Parliament to protect people s good morals, may be sabotaged by statutory enemies within. 22. With these prefatory remarkes, 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urai has been constituted to exercise such powers. 24. It cannot be contended that the Central Government has no power to delegate the powers or to issue the said order. Section 7(8) 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 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 Section 7(8) read with the Government order dated January 21, 19.87, 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. 25. We also 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous message against the interests of depressed classes. 27. 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 poar , 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. . 28. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared on the basis of economic considerations. And those below a specified limit of income be included in the backward list. 30. 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 independence it is not there. The High Court also said: That any denigration of Rule of law would never bring orderly society To preach that it is only law that promoted 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 glorification made, how could it be claimed that the film stands for national integration. That wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment 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 basis 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. That alter Lippmann said in another context is relevant here: 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 their knowledge. 35. In Maneka Gandhi v. Union of India [1978]2SCR621 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 government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 39. 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 American 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and decency of free people. (Society Vol. 24 p. 8 No. 1 November/December 1916). 42. 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 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 interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a spark in a powder keg . 43. 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 AIR1935Cal636 , the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Niharendu Dutt Majumdar v. Emperor AIR 1942 FC 22, 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. x x x 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 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 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 outbur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anisations like the Tamil Nadu 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 belong 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 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. 48. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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