Motion Picture Association and Eastern India Motion Picture Association Vs. Union of India - Court Judgment

Excerpt:
constitution of india, 1950 - article 19(1)(g), 19(6) & 14--restriction on exhibition of the films--the exhibitors compelled to show only the films approved in terms of the license granted under the provisions of the cinematograph act--the restriction is reasonable and cannot be said to be unconstitutional.article 265--fee charged for showing the approved films in terms of the rules framed under cinematograph act--the exhibitors compelled to make payment for exhibiting the films--the fee charged is unconstitutional. - - 15 as well though the question was not in term raised in petition. the licensing authority shall not grant a license under part iii of the act unless it is satisfied that -(a) the rules, made under this part have been substantially complied with, and (b) adequate.....d.p. wadhwa, j.(1) these two writ petitions raise common questions of law. these were earlier filed in the supreme court under article 32 of the constitution and later transferred to this court to be treated as petitions under article 226 of the constitution.(2) in the fist petition (cwp no. 4408/93) there are five respondents, namely, (1) union of india in the ministry of information and broadcasting; (2) films division, a department of the ministry of information and broadcasting, lucknow; (3) state of uttar pradesh through its chief secretary; (4) delhi administration, now the government of the national capital territory of delhi; and (5) the commissioner of police, the licensing authority under the delhi police act, 1978. the petitioner in this case is an association of film.....

Judgment:

D.P. Wadhwa, J.

(1) These two writ petitions raise common questions of law. These were earlier filed in the Supreme Court under Article 32 of the Constitution and later transferred to this Court to be treated as petitions under Article 226 of the Constitution.

(2) In the Fist petition (CWP No. 4408/93) there are five respondents, namely, (1) Union of India in the Ministry of Information and Broadcasting; (2) Films Division, a department of the Ministry of Information and Broadcasting, Lucknow; (3) State of Uttar Pradesh through its Chief Secretary; (4) Delhi Administration, now the Government of the National Capital Territory of Delhi; and (5) The Commissioner of Police, the Licensing Authority under the Delhi Police Act, 1978. The petitioner in this case is an association of Film exhibitors and distributors and is a body corporate and is duly registered under the Indian Companies Act. The members of the petitioner are engaged in the business of distribution and exhibition of motion pictures in the area covered by Delhi and Uttar Pradesh commonly known as Delhi- Uttar Pradesh Circuit. They seek a writ in the nature of mandamus or any other appropriate writ, order or direction directing the films division not to collect 1% of the total collection of a week of rental by an exhibitor of Delhi/U.P. territory, and rather direct the Films division to pay 'rental' to exhibitors. They also seek to strike off condition 22 of the license granted under the Delhi Cinematograph Rules, 1981, and condition 2 of the license granted under the U.P. Cinema (Regulation) Rules, 1951, being arbitrary, illegal and unconstitutional. A similar writ is also sought directing the State of U.P., Government of the National Capital Territory of Delhi, and the Commissioner of Police to grant license to the exhibitors without requiring them to accept the films of the films division and/or any particular class of films being called 'approved films'. Then finally a declaration is sought declaring that section 5(4) of the U.P. Cinemas (Regulation) Act, 1955, and section 12(4) of the Cinematograph Act, 1952, do not empower the respondents to direct the exhibitors to accept the approved films of the films division, these provisions being vocative of the constitution. During the course of hearing of this petition challenge is also thrown to the constitutional validity of condition No.15 of the license granted under the Delhi Cinematograph Rules. We heard arguments on validity of condition No.15 as well though the question was not in term raised in petition.

(3) In the second petition (CWP No. 4703/93), the petitioner is a body corporate and its members are distributors and exhibitors of motion pictures in the Stale of West Bengal. In this case there are four respondents. First and second respondent being the same as in the first writ petition; the third respondent is the State of West Bengal through its Secretary; and the fourth respondent is the Commissioner of Police, Calcutta, the licensing authority for grant of license for exhibition of motion peculiars in cinema houses. In this a declaration is sought declaring that section 5(3) of the West Bengal Cinemas (Regulation) Act, 1954 (for short 'Bengal Act'), docs not empower the respondents to direct exhibitors to accept the films of the films division, and that the section is arbitrary, uncanalised and unconstitutional. Then a declaration or any other appropriate writ, order or direction is also sought that respondents have no power to direct the exhibitors to accept any particular class of films. Finally, a writ in the nature of mandamus or any other appropriate writ, order or direction is sought directing the Police Commissioner, Calcutta, to grant cinema licenses without requiring them to accept the films of Films Division and/or any other particular class of films, and that the Police Commissioner or the State Government should not require the exhibitors to claim any clearance from the Films Division before the grant or renewal of the license.

(4) Entry 60 in List I (Union List) of the Seventh Schedule in the Constitution is as under :-

'Sanctioning of cinematograph films for exhibition.'

(5) Entry 33 of List Ii (State List) is as under :-

'THEATRES and dramatic performances; cinemas subject to the provisions of Entry 60 of List 1; sports, entertainments and amusements.'

(6) Under Entry 60 of List I, the Parliament has enacted the Cinematograph Act, 1952, the object of which is to make provisions for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs. Part Iii of this Act which contains sections 10 to 17 applies to Union territories and is meant for regulation of exhibition by means of cinematographs. Under Entry 33 of List Ii, Legislature of the State of Uttar Pradesh has enacted the Uttar Pradesh Cinema (Regulation) Act, 1955, which is an Act to make provisions for regulating exhibitions by means of cinematographs. Both under Chapter Iii of the Cinematograph Act and the Uttar Pradesh Cinemas (Regulation) Act, Rules have been framed which are respectively the Delhi Cinematograph Rules, 1981, and the Uttar Pradesh Cinematograph Rules, 1951. These Rules also contain the form under which license is to be granted for running of the cinema. Various conditions are attached to the license and when we refer to the Delhi Cinematograph Rules conditions 15 and 22 are those which are subject- matter of challenge, and these are :- Condition No. 15:

'THE licensee shall, when and so often as the Administrator may require, exhibit free of charge or on such terms as regards remuneration as the Administrator may determine, Films and lantern slides provided by the Administrator: Provided that the licensee shall not be require to exhibit at one entertainment films or lantern slides the exhibition of which will take more than fifteen minutes in all or to exhibit films or slides unless they are delivered to him atleast twenty four hours before the entertainment at which they are to be shown is due to begin.'

Condition No.22:

'THE licensee shall cause to be exhibited at each performance given at the licensed place one or more approved films, the total length of which may not be exceeding 600 m (2000 feet) of approved films of 35 m.m. si/.e or the corresponding fool age of approved films of 16 m.m. size, and shall comply with any direction which the Administrator or the licensing authority may give by general or special order as to the manner in which the approved films shall be exhibited in the course of any performance.

ExplanationN1. 'Approved film' means cinematograph film approved by the Central Government. Explanationn 2. For the purpose of computing the corresponding footage of films of 16 m.m. size, in relation to the films of 35 m.m. size, 120 m. (400 feet) of Films of 16 m.m. size shall be deemed to be equivalent to 300 m. (1,000 feet) of films of 35 m.m. size.'

(7) The licensing authority 'in the case of cinemas in Delhi would be the-Deputy Commissioner of Police (Licensing) under the Delhi Police Act, 1978, while for cinemas in Uttar Pradesh it would be the District Magistrate of the district concerned. Some what condition similar to condition 22 applicable to Delhi is contained in the license to be granted under the Uttar Pradesh Cinemas (Regulation) Act and the Rules there under and it is as under :-

'(2)that the said .... shall cause to be exhibited at each performance given after the 30th Setpember, 1946, in the ..... one or more 'approved' films the total length of which is not less than one thousand feel or an 'approved' film exceeding 750 feet in length in case of cinemas exhibiting 35 mm. films and 400 feet in case of cinemas exhibiting 16 mm. films and shall comply with any direction which the Uttar Pradesh Government may, by general or special order, give as to the manner in which 'approved' films shall be exhibited in the course of any performance. '

(8) Section 12 of the Cinematograph Act provides for restrictions on powers of licensing authority. The licensing authority shall not grant a license under Part Iii of the Act unless it is satisfied that - (a) the rules, made under this Part have been substantially complied with, and (b) adequate precautions have been taken in the place, in respect of which the license is to be given, to provide for the safety of persons attending exhibitions therein. Sub-section (4) of this section 12 is as under :-

'(4)The Central Government may, from time to time, issue directions to licensees generally or to any license in particular for the purpose of regulating the exhibition of any film or class of films, so that scientific films, films intended for educational purposes, films dealing with news and current events, documentary films or indigenous films secure an adequate opportunity of being exhibited, and where any such directions have been issued those directions shall be deemed to be additional conditions and restrictions subject to which the license has been granted.'

(9) Section 5(4) of the Uttar Pradesh Cinemas (Regulation) Act, 1955, which is also under challenge, may be reproduced as under :- 5. Restrictions on powers of licensing authority. (1)...... (2)........ (3)........ (4) The State Government may, from time to time, issue directions to licensees generally or to any licensee in particular for the purpose of regulating 'the exhibition of any film or class of films, so that scientific films, films intended for educational purposes, films dealing with news and current events, documentary films or indigenous films secure an adequate opportunity of being exhibited and where any such directions have been issued, those directions shall be deemed to be additional conditions and restrictions subject to which the license has been granted. Explanationn:.......... '

(10) The license to the cinema owners is granted for a year and is to be renewed every year. Petitioners complain that when cinema owners apply for renewal of license a letter is addressed by the D.C.P. (Licensing) to various authorities requiring them to inspect the cinema halls and to send in their reports and that a copy of such a letter is endorsed to the Branch Manager, Film Division, Lucknow, with a request to issue 'NOC' in respect of approved films. A cinema owner is also informed for necessary follow up action with the concerned authorities. A specimen of such letter is dated 17 January 1991, which we reproduce as under:-

'OFFICEOF The DY.COMMISSIIONER Of Police Licensing, DELHI. No.____/DCP/Lic, Dated,New Delhi, the_____ To, 1. The Executive Engineer, Pwd Div. No. 1I, Delhi Admn. Lnjp Hospitel, New Delhi. 2. The Electrical Inspector, Rajpur Road, Delhi. 3. The Chief Fire Officer, Delhi Fire Service, Connaught Circus, New Delhi. 4. The Zonal Health Officer, M.C.D. Karol Bagh Zone/Delhi/New Delhi. Subject: Annual Inspection of Liberty Cinema Memo. The Licensee Liberty Cinema has applied to this office for renewal of their cinematograph license from 1.4.91 to 31.3.1992. It is necessary that the license is renewed well in time. Since this office will also need some time to process the reports of various authorities, you are requested to please carry out an inspection of this cinema urgently and send you inspection report to this office within 30 days from the date of receipt of this letter or also it will be presumed that you have no objection to the renewal of the same. You are further requested to please bring to the notice of the Licensee Liberty Cinema all the defects noticed during your inspection immediately, under intimation to this office, to enable him to remove the same in time. sd/- for Dy.Commissioner of Police Licensing, Delhi. No.__/DCP/Lic, dated Delhi the ...17.1.91. Copy forwarded to :- 1: The Branch Manager, Film Division, Lucknow. He is requested to issue 'NOC' in respect of approved films. 2. The licensee Liberty Cinema DELHI/NEW Delhi with reference to his letter dated 11.1.91 for necessary follow up action with the concerned authorities to get their reports early. Sd/ for Dy.Commissioner of Police, Licensing,Delhi. ' The form in which no objection certificate is issued by the Films Division is as under:- 'FILMS Division Ministry Of Information & Broadcasting Government Of INDIA. S.No.391.DURGA Bhawan, Kapoor Lane, Mahatma Gandhi Marg.Lucknow. Dated 5.2.91. No Objection Certificate This is to certified that M/s. Liberty Cinema, New DELHI. We have no objection to issue license up to 31.3.1992 (31st March 92). Licensee: M/s.Vijay Shri (P) Ltd. (B.MADHAV RAO) Branch MANAGER. To, Dy.Commissioner of Police (Licensing) Delhi. Copy to M/s. Liberty Cinema, 19-B, Guru Gobind Singh Marg, New DELHI. This certificate issued in view of the original certificate.'

(11) This 'no objection certificate' is issued only after a cinema owner enters into an agreement with the Film Division. That agreement which is valid for one year has various clauses. In this the Film Division undertakes to supply to the exhibitor such scientific films, films intended for educational purposes, films dealing with views and current events, all documentary films as have been certified/notified or approved by the Central or the State Governments, as the case may be. This, of course, is subject to the terms and conditions of the agreement. The agreement provides for safely of the approved films while in the custody of the exhibitor and also as to how such a film is to be collected and from where and then delivered to whom. Agreement provides that the exhibitor shall pay to the Film Division, or as may be directed by it, rentals of each film at a certain rate within 15 days from the date of receipt of the monthly programme advice and invoice mentioned in the agreement. The whole tenor of the agreement would appear to be wholly loaded in favor of the Film Division. It would appear that there is no escape for a cinema owner/exhibitor from entering into such an agreement.

(12) In the petition filed by the Eastern India Motion Picture Association (CWP No. 4703/93), as noted above, there is challenge to the constitutional validity of section 5(3) of the West Bengal Cinemas (Regulation) Act, 1954. This section is as under :-

'5(3)The Stale Government may from time to lime, issue directions to licensees generally or in the opinion of the State government circumstances so justify, to any licensee in particular, for the purpose of regulating the exhibition of any film or class of films and in particular the exhibition of scientific films, films intended for educational purposes, films dealing with news and current events, documentary films or films produced in India, and where any such directions have been issued, those directions shall be deemed to be additional conditions and restrictions subject to which the license has been granted.'

(13) Then under the Rules framed under this Act called the West Bengal Cinemas (Regulation of Public Exhibition) Rules, 1956, conditions have been attached to the license for grant of cinema license.

(14) The challenge is also to the notification dated 20 September 1957 issued under sub-section (3) of section 5 of the West Bengal Cinemas (Regulation) Act, 1954. Under this notification, following directions have been issued to the licensees of cinema houses :-

'Directions A licensee shall so regulate the public exhibition of films by means of a cinematograph that, at every such exhibition, there shall be exhibited notified films of such length as bears to the length of other films exhibited approximately the ratio of one to five; (a) to exhibit at any such public exhibition more than 2,000 ft. of notified films of 35 mm. size sor 800 ft. of notified films of 16 mm, size; or (b) to exhibit any notified films for more than two weeks continuously; or (c) to re-exhibit any notified film which has been shown for two continuous weeks; or (d) to exhibit notified films beyond the limit up to which notified films are available for exhibition for the time being, or to exhibit any notified films when such films arc not available for the lime being.

(15) Provided further that of the total time taken in the exhibition of notified films at every such exhibition, not less than half shall be allotted to the exhibition of films approved by the Central Government after considering the recommendations of the Film Advisory Board, Bombay, if films of the latter description are available. Explanationn - In these directions 'notified film' means a film which is produced in India and which is - (i) a scientific film, or (ii) a film intended for educational purpose, or (iii) a film dealing with news and current events, or (iv) a documentary film, certified or exempted from certification, as the case may be, under Part Ii of the Cinematograph Act, 1952 (xxxvII of 1952), which is notified by the State Government in the 'Calcutta Gazette' for exhibition for the purpose of sub-section (3) of section 5 of the West Bengal Cinemas (Regulation) Act, 1954 (West Bengal Act Xxxix of 1954); Provided that any of the films as referred to above, which is approved by the Central Government after considering the recommendations of the Film Advisory Board, Bombay, shall be deemed to be a notified film for the purpose of this Notification. By Order of the Governor, M.M. Basu Secretary to the Govt. of West Bengal.'

(16) To satisfy these directions it is submitted that an agreement has to be entered into by the cinema owners with the Branch Manager, Films Division, Ministry of Information and Broadcasting, Calcutta, for supply of approved (notified) films. It is submitted that only after the agreement is entered into that renewal of license is granted by the authority concerned. In this connection reference has been drawn to letter dated 23 August 1990 by the Films Division, Calcutta, addressed to a cinema owner in Calcutta regarding supply of approved films during the year 1991 and fixation of rentals thereof. It is also mentioned in this letter that in case the cinema owner wished to discontinue the supply of approved Films he would inform the Branch Manager, Films Division, by return of post. A letter is also addressed by the cinema owner to the Branch Manager, Films Division, for renewal of contract for supply of approved films and agreeing to security deposit and rental charges. On this there is endorsement by the Branch Manager accepting the renewal of the agreement.

(17) All was, perhaps, going well and conditions like 15 and 22 of the license were not being objected to seriously all this time till the cinema started losing money with the invasion of VCRs, Cable Tv, Satellite Tv, and multiple T.V. channels, an explosion in the electronic media for the entertainment of the public.

(18) Opening his arguments in the Motion Pictures Association case (CWP No. 4408/93) Mr. Dholakia, learned counsel for the petitioner, submitted that : (1) the requirement under the license for having to pay for approved Films to be exhibited by a licensee compulsorily would be vocative of Article 14 of the Constitution; (2) it would also be vocative of Article 19(1)(a) and Article 19(1)(g) of the Constitution; and (3) the impost was a tax which could not be levied in view of Article 265 of the Constitution. Under this Article, no tax would be levied or collected except by authority of law. If we refer to clause 28 of Article 366 containing definitions, 'lax' includes the imposition of any lax or impost, whether general or legal or special, and 'tax' shall be construed accordingly. On the question of violation of Article 14, Mr. Dholakia said that in video parlors there was no restriction to show approved Films and that the cinema, owners were the only one to have been singled out for showing approved films. He said compulsion to show approved Film in the close of twentieth century had lost its validity as there was awareness of social issues and latest events among the public at large through other medias. Moreover, he said that for publication of various advertisements in newspapers and other journals the Government paid for the same and there appeared to be no reason why the cinema owners should not be paid for exhibiting approved Films as the cinema owners had to incur expenses for that purpose. Those expenses, he said, could be the hire charges of cinema for certain time, payment of wages to employees, water and electricity charges, and use of machinery for the purpose.

(19) Mr. Dushyant Dave, Advocate, appearing for Eastern India Motion Picture Association, petitioner in Cwp No. 4703/93, submitted that sub-section (3) of section 5 of the Bengal Act and the impugned notification dated 20 September 1957 issued by the Government of West Bengal directly impaired and/or took away the fundamental right guaranteed under Article 19(l)(a) of the Constitution. Article 19(l)(a) provides that all citizens shall have the right to freedom of speech and expression. This right is subject to imposition of certain reasonable restrictions under clause (2) of Article 19 which is as under:-

'(2)Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty 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.'

(20) It was submitted that right of a citizen to exhibit films was a part of the fundamental right of expression guaranteed under Article 19(l)(a) being similar to the right to publish views through newspapers, magazines, etc., and that that right could be curtailed only under the circumstances mentioned in clause (2) of Article 19. It was submitted that this statement of law was reaffirmed by the Supreme Court in its decision in the case of Secretary, Ministry of Information and Broadcasting, Government of India and others v. Cricket Association of Bengal and others, : [1995]1SCR1036 . Mr. Dave said that it was for the respondent to show that the restrictions imposed on the exhibitors of motion pictures were within the permissible limits relating to any of the grounds of clause (2) of Article 19. It was submitted that a bare reading of section 5(3) of the Bengal Act and the directions which were impugned would show that the restrictions did not fall under any of the grounds specified in clause (2) of Article 19 as it could not be said that these restrictions had been imposed in the interest of (1) sovereignty and integrity of India; (2) the security of the Slate; (3) friendly relations with foreign States; (4) public order; (5) decency or morality; or (6) in relation to contempt of court; (7) defamation or incitement to an offence.

(21) Continuing his arguments Mr. Dave said that the fundamental right guaranteed under Article 19(l)(g) was also violated in the present case. Under Article 19(l)(g), all citizens shall have the right to practice any profession, or to carry on any occupation, trade or business. This right is also subject to reasonable restrictions being imposed by the State and that would be clause (6) of Article 19 which is asunder :-

'(6)Noting in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub- clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, - (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or servie, whether to the exclusion, complete or partial, of citizens or otherwise.'

(22) Mr. Dave submitted that the determination by the Legislature of what constituted a reasonable restriction was not final or conclusive but was subject to supervision of the court and that the standard of reasonableness must vary from age to age and would be related to adjustments necessary to solve the problems which communities faced from time to time. He said that the provisions contained in sub-section (3) of section 5 of the Bengal Act were arbitrary and were of excessive nature and assuming that it had a reasonable object to achieve that to educate the masses it had gone far too in excess of that object and as a matter of fact the provision had clearly failed to achieve the object and rather on the contrary imposed severe and burdensome restraints on the petitioner. He said restrictions imposed on fundamental rights under Article 19 could not be arbitrary, unbriddled, uncanalised or discriminatory. He said restrictions to be reasonable must, thereforee, also be consistent with Article 14 of the Constitution.

(23) It was then submitted that the expression 'reasonable restriction' must strike a balance between the freedom guaranteed under any of sub-clauses of clause (1) of Article 19 and the social control permitted by clauses (2) to (6). Mr. Dave said that by catena of judgments the Supreme Court had observed that the expression 'reasonable restriction' connoted that the limitation imposed on a person in the enjoyment of his right should not be arbitrary or of an excessive nature and beyond what was required in the interest of public, and that the word 'reasonable' implied intelligent care and deliberation, i.e., 'the choice of a course which reason dictates'. In order to be reasonable, the restriction must have a direct and proximate nexus or connection with the objects sought to be achieved. Lastly, it was submitted that court had to consider not only the factors such as duration and the extent of restrictions but also the circumstances under which and the manner in which their imposition had been authorised, and in that regard it was necessary that every legislation in the country must keep pace with the technological developments and if it failed to do so it would be wholly inadequate and unsuited to the requirements of the time and thereforee unconstitutional and void. In further submission reference was made to a decision of the Supreme Court in Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal and others, : [1995]1SCR1036 (supra). It ' was, thus, submitted that what was reasonable at the time of enactment of law might cease to be so with the change of time and circumstances as held in Motor General Traders v. State of Andhra Pradesh (AIR 1984 S.C. 121). Applying the aforesaid principles Mr. Dave submitted that the provisions of section 5(3) were clearly arbitrary and in these days it did not achieve the object sought to be achieved and that was the 'awareness programme' meant for the viewers in these days of modern technology with the invasion of vast visual electronic media. Mr. Dave submitted that respondents had failed to show that the impugned legislation came within the permissible limits. Section 5(3) of the Bengal Act was enacted by the State Legislature in exercise of power under Entry 33 of List Ii (Stale List) of the Seventh Schedule to the constitution and the power prescribed there under was only to regulate and nothing beyond. Under that entry, the State Legislature had no power to enact a law like section 5(3) and then to issue the impugned notification. Mr. Dave said that as held by the Supreme Court in Deepak Theatre's case, : AIR1992SC1519 (supra), the power to regulate a particular business implied the power to prescribe and enforce all such proper and reasonable rules and regulations as might be deemed necessary to conduct the business in a proper and orderly manner.

(24) Mr. Madan Lokur, Central Government Standing Counsel appearing for the Union of India, submitted that there was no challenge in the petitions that fundamental right of the petitioners as guaranteed under Article 19(1)(a) was violated and the petitioners, thereforee, could not be permitted to challenge the validity of the impugned provisions on the basis of alleged violation of right under Article 19(l)(a). He said petitioners could not be permitted to raise an altogether a new plea which they never pleaded and when the respondents had no opportunity to meet.

(25) Mr. Lokur said that the exhibitors were not compelled to show approved films produced by the films division as a condition precedent to grant of a new license/renewal of old license. He said nowhere in the conditions or anywhere else it was mentioned that the approved Films were required to be these films produced only by the Films Division and that in fact there was no compulsion on the exhibitors requiring them to obtain approved films from the Films Division. He said since Films Division was the highest producer of approved films in the country and was in a position to maintain an uninterrupted supply of approved films, the petitioners in their own interest would approach the Films Division for approved films and that they were free to exhibit films made by anybody else, the only condition being that those films should have been approved being that these should have approval of the Central Government. It was also submitted that the Films Division did not enjoy a monopoly over short films/approved films. Mr. Lokur said that the exhibition of approved films was in the interest of the public and had reference to Article 38 of the Constitution which is an Article falling under Part Iv of the Constitution containing Directive Principles of State Policy. Article 38 may be reproduced as under :- '38. State to secure a social order for the promotion of welfare of the people. (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.'

(26) Mr. Lokur said that requirement of compulsory screening of approved films was essential to the general public in the country as they were made aware of our traditions, cultural heritage, history of freedom struggle, price of freedom, communal harmony, national integration, etc., and that it was not only the responsibility of the Government but also fundamental duty of a citizen to ensure that every generation was instilled with the'facts of the country's past events, rich heritage and the unparallel sacrifices made by great leaders to attain freedom, the sense of preservation of freedom and learn to live as a part of the Great Nation, and in that connection reference was made to Article 51A of the Constitution which pertains to fundamental duties in Part IV-A of the Constitution. Then Mr. Lokur said that the rental demanded by the films division for supply and exhibition of approved films was not an unreasonable restriction and that only a nominal charge of 1% of net collection (not gross collection) was levied. He said it could be called even a 'service charge'. Mr. Lokur pointed out that in some cases this rental would work out to only Rs.2.50 per week and that this rental had been arrived at after discussions with the Film Federation of India which was the apex body of the film industry and that this rate was in force since I April 1958. Mr. Lokur said during all this period of 37 years this rental had been frozen in spite of rising cost in producing the Films. It was also submitted that the rental had never been linked with the total annual expenditure incurred by the Films Division as otherwise, Mr. Lokur said, that rental would have 'been proportionately increased year after year as was done in other spheres of commercial activities, and that the revenue collected by the Films Division by way of rental was barely 50% of the total annual expenditure of Films Division. Mr. Lokur said that Films Division was charging rental from other exhibitors such as Doordarshan, Steel ' Authority of India, the defense Forces, etc. He said video parlors were also obliged to show 'approved films' and in that connection he referred to condition No.25 which had been imposed in Delhi on video parlors since 1988 making it compulsory for them to show 'approved Films'. He said on this account challenge on the basis of Article 14 of the Constitution must fail. Mr. Lokur said that condition 22 was not vocative of Article 19(l)(g) and was imposed in public interest. He said there was no challenge to condition No.15 which had been set aside by the Rajasthan High Court and that the issue regarding Condition 22 being vocative of Article 19(l)(g) was no longer rest integra in view of the decision of Rajasthan High Court in Pt. Brijniwas Das v. Chief Commissioner 1958 (8) Raj. 1076, which had been set aside in appeal by the Supreme Court. Mr. Lokur said in any case, as observed by the Supreme Court in Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal and others, : [1995]1SCR1036 , it was the right of the viewers (or listeners or cinegoers) which was more important than the right of the broadcasters (exhibitors) and that the cinegoers, who unfortunately happened to be a part of a disorganized section of the society, had a right to be made aware of the developments in the country while watching a feature film. It was then submitted that the exhibition of approved Films was in the interest of the public inasmuch as the Films were perhaps the only medium of mass communication which could effectively reach out to the illiterate as well as to the educated, and that such Films helped keep the common man informed and in touch with the happenings, developments and progress in the country and abroad. The restriction imposed by condition 22 could not, thereforee, be said to be unreasonable restriction. Mr. Lokur said ordinarily any restriction which had the effect of promoting/effecting a Directive Principle of State Policy could be presumed to be a reasonable restriction in public interest. Lastly, Mr. Lokur said in any case petitioners did recover their expenses from the cine going public through ticket or gate money, and that principles analogous to unjust enrichment ought to be applied.