ORDER
In exercise of the powers conferred by Section 7 of the Cinematograph Act, 1952 (37 of 1952 hereinafter referred to as the said Act), the Central Government 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 Section 4, sub-sees. (3) and (4) of Section 5, Section 5-A and Section 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 Calcutta 2. Ms. Maithrayi Ramadhurai Madras 3. Dr. B.K. Chandrashekar Bangalore xxx xxx xxx xxx
This order clearly states that the power of the Board shall also be exercisable by the specified members within their regional office. For Madras region Maithrayi Ramadhurai 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 hours of the presentation of the application. 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 action 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.
26. There are two other side issues which may be disposed of at this stage. The scene with song no. 2 in real no. 3 and the comments by the heroine on looking at the photo of Dr. Ambedkar, have come to serious criticism. It is said that the song has the effect of spreading 'Kulachar' which is 'Poisonous message' to the depressed classes not to educate their children. The complaint, if true, is serious. We, therefore, 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.' While 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, Vanakkam', The song thus ends with a happy note and the cobbler agrees to 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 disregarding the main theme. What is significant to note is that the cobbler ultimately does not insist that his grandson should continue 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.
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 obtaining a false caste, certificate. The reel No. 14 contains almost a dialogue between the 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 constituency. Then the prosecution lawyer puts a question 'why do you regret this Madam Was not 'Bharat Matha' under shackles than ?' She replies : 'You are right. Then 'Bharat Matha' was in chains (Vilangu, is the Tamil word used for shackles which also means animals). Now 'Bharat Matha' is under animals' hand.' 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 profession. She also states that it is the Government and its laws that have made her and 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 corner stating 'Be an Indian, Be an Indian.' And if I 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 Kanyakumari, 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 of on 'National integration' will not the public laugh.'
29. 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.'
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.
31 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 was why one Member rightly said that it is a hollow-damn Hence Guideline 2(vi) and (vii) are contravened.
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 (ii). This film is in Tamil. It deals with reservations now extended to large sections of people on a particular basis, and who suffered for Centuries, and at a time when they have not attained equality and when their valuable rights which are secured under the Constitution 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 Tamil Nadu during the preceding four decades, and the reactions are bound to be volatile.
32. 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 the security of the Slate or 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 of economic backwardness is better. The film also deprecates exploitation of people on caste considerations. This is the range and rigor of the film.
33 The High Court, 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 also 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 to the democratic principles to which we have pledged ourselves in the Constitution. 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 issue of general concern. He can form and inform by any legitimate means.
34. The democracy is a Government 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 in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential.
36. The learned judge in Naraindas v. State of Madhya Pradesh : [1974]3SCR624 while dealing with the power of the State to select text book for obligatory use by students said (at 650):
It is our firm belief, nay a conviction which constitutes one of the basic values of a free society to which we are wedded under our Constitution, that there must be 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 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.
37. In Sakal v. Union of India : [1962]3SCR842 , Mudholkar, J. said:
This Court must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution, The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.
38. Movie is the legitimate and the most important medium in which issues of general concern can be treared. The producer may project his own message which the others may not approve of it. 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 punish open talk, however, hateful, not for hypocritical reason that Hyde Parks are a safety-valve, but because a bit of sense may be salvaged 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).
'When men differ in opinion, both sides ought equally to have the advantage of being heard 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, un 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 the war is justified, then the same building may be used in which to say that it is not justified. If it be publicly argued that conscription for armed service is moral 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 expressed, not because they are valid, but because they are relevant. To be afraid of ideas, any idea, 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 control over the Government, the people's legislative and executive agents.
40. Brandies, J., in Whitney v. California 274 US 357 propounded probably the most attractive free speech theory:.that the greatest menace to freedom is an inert people; that public discussion is a political duty;...It is hazardous to discourage thought, hope and imagination; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.
41. What Archibald Cox said in his article though on First Amendment is equally relevant here:
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 dangerous 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 dissenters 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 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 Calcutta High Court considered the effects of a speech advocating a change of Government. There the accused was convicted under Section 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 937):
All that the speaker did was to encourage the youngmen, whom he was addressing, to join the Bengal 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 Bolshavik system in Russia. It is really absurd to say that speeches of this kind amount to sedition. If such were the case, then every argument 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 might 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.
44. To the same effect is the observation by the Bombay High Court in Manohar v. Government of Bombay AIR 1950 BCM 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 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 conviction said (at 213):
It is true that the article does state that the working class and the coiling masses can get hold of power through the path of revolution alone. But the expression 'revolution' is used here, as is clear from the context, in contradistinction to reformism or gradual evolution. The revolution preached is not necessarily a violent revolution.
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.
45. 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.
XXX XXX XXX XXXThe 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 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.
46. Even the European Court's approach in protecting the freedom of expression is not different although they have the extensive list of circumstances for limiting the freedom. Article 10 of the European Convention of Human Rights and Fundamental Freedom provides ;
(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 formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
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):
The court's supervisory functions oblige it to pay the utmost attention to the principles characterising a 'democratic 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 every man. Subject to Article 10(2), it is applicable not only to 'information' or 'ideas' that are favourably received or 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 'penalty' imposed in this sphere must be proportionate to the legitimate aim pursued.
47. This takes us to the validity of the plea put forward by the Tamil Nadu Government. In the affidavit filed on behalf of the State Government, it is alleged that some organisations 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 is unobjectionable and cannot constitutionally be restricted under Article 19(1), freedom of expression cannot be suppressed 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 duy 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 prevent it and protect the freedom of expression.
49. In this case, two 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 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 Government and people that the existing method of reservation in educational institutions overlooks 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.
50. We end here as we began on this topic. Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience of 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 democracy as to the person himself.
51. 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 case, however, we make no order as to costs.