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TMI Blog2015 (3) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... KURESHI AND MS. SONIA GOKANI, JJ. Tushar Hemani with Ms. Vaibhavi Parikh Amicus Curiae. C.R. Mishra for the petitioner. Jaimin Gandhi, Additional Government Pleader, for the respondent. JUDGMENT Looking to the controversy involved, we have heard learned counsel for the parties for final disposal of the petition. 2. As mankind progressed and modem society developed, different modes of expression developed which were hitherto unknown. Besides language being powerful medium of communication different forms of expression over a period of time developed. Therefore, term speech and expression , also includes words spoken or written, expressions eloquent or otherwise ; expressing one's self by drawing, painting, cartooning, through music and dancing and through the medium of film making, the last one being one of the most powerful medium of expressing one's thoughts and ideas. Preamble to the Constitution declares the solemn resolve of the people of the country to secure liberty of thought, expression, belief, faith and worship. As part of fundamental rights, freedom of speech and expression occupies a very important place in the list of rights of a citizen. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Entertainment Tax that he did remain present on April 24, 2013. The Commissioner, however, did not grant audience. Many films for which applications for exemption were filed after his have been granted exemption. His application may, therefore, be considered expeditiously. He again wrote on April 29, 2013 requesting consideration of his application. On May 2, 2013, he wrote to the Chief Minister of the State and complained about the non-consideration of his application. On May 13, 2013, he again wrote to the Commissioner of Entertainment Tax contending that in the film, he has weaved various aspects of difficulties of gay persons, such as, the way the society mocks at them and their existence being not accepted and sought to be concealed. He stated that this is a offbeat film for which demand has come from various film festivals at Canada, USA, Goa and Chennai, which will only enhance the reputation of Gujarati film industry in the world. The entire film is centered around the subject of suffering of a gay person because of ridicule by the society. The film projects his trauma and questions whether such ridicule is justified. There is not a single sexual scene in the film. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax exemption can be denied if the film involves any of the subjects depicting evil customs, blind faith, sati, dowry and such social evils and those which are against the national unity. The Commissioner, therefore, should pass a fresh order giving the basis whether the film falls in any of these categories; (ii) If the words and dialogues which were ordered to be muted are derogatory or objectionable, then to that extent, the issue may be reconsidered ; (iii) Only upon seeing the core of the film, if it can be stated that the film propagates certain theory or supports or promotes it, question of denying tax exemption would arise. However, if no such things emerge, exemption cannot be denied only bearing in mind the subject of the film. (iv) Bearing in mind the above three factors, the Commissioner should re-examine the issue and take a fresh decision after affording a hearing to the petitioner. 6. The Commissioner of Entertainment Tax thereupon passed a fresh order 6 dated July 1, 2013 which is impugned in this petition. In such order, referring to the GR dated June 8, 1999, he referred to the following four factors which in his opinion were adverse to the petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well exhibit the film in theatres where on the basis of its quality the viewers are always allowed to watch it. (v) Granting tax exemption would send a message that the Government is endorsing and encouraging such ideology. 8. Being an issue of considerable importance and one which requires dealing with a degree of caution and sensitivity, we had requested learned counsel Shri Tushar Hemani to act as an amicus in the matter. He along with his colleague Ms. Vaibhavi Parikh had willingly accepted our request and assisted us after putting considerable efforts for which we are indeed thankful to them. 9. Shri Hemani contended that the Government policy framed under resolution dated June 8, 1999 is to grant tax exemption to all Gujarati films made after April 1, 1997 except those mentioned in para 4 of the said resolution. The present film does not fall in any of the exceptions. The decision of the Commissioner was, therefore, erroneous. Citing article 14 of the Constitution, he contended that granting tax exemption for other films similarly situated and denying it to this film would amount to hostile discrimination. Unless the film falls in any of the categories for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving proper reasons, court should not interfere with exercise of such discretionary powers. (7) In addition to the decision of the Supreme Court in the case of NAZ Foundation AIR 2014 SC 563, he referred to several decisions of various courts on the interpretation of section 377 of the Indian Penal Code. Before dealing with the contentions, we may refer to in detail the Government policy for granting tax exemption as well as the objectionable portions of the film, as pointed out by the Commissioner of Entertainment Tax. 12. The policy of granting 100 per cent. tax exemption from payment of entertainment tax for Gujarati colour films was promulgated under resolution dated June 8, 1999. Preamble to the said resolution records that with a view to making Gujarati films of high quality and good storyline, the Government has framed a policy of granting 100 per cent. exemption from payment of entertainment tax. By consolidating different resolutions and framing a fresh policy, therefore, it was resolved to implement a new tax exemption scheme. Para 1 thereof provides that there shall be 100 per cent. tax exemption to all Gujarati colour films made after April 1, 1997. Paras 2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and honest to ourselves and I am of the opinion that the class of society which is not gay/homo-sexual if supports us, it would become a very good example of mam streaming. .... Friends, in whose life challenges/struggles are not experienced, but every struggle/challenge when ends in doing good to oneself, for others and for the society, we need to do that. The same must be undertaken with positive thinking. Despite my belonging to the princely background, when I came out as a homosexual/gay person, I had to face various challenges. My own family attempted to deny me not only my property rights but also from the very family by giving a public notice and because of misconceptions, one needed to undergo many sufferings and yet, in the end, I have won. It can be said that those who outcast me and boycotted me have eventually started accepting me because I continued to adhere to my truthfulness and honesty. Those in the society who had phobia towards homosexuality and who had resisted this concept, I chose not to turn away from them. But, by being with them, I communicated to them that like them, I am also a human being, having similar feelings as they have and I am no different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated, it reads thus:- Events often leave deep impressions thorns meant to protect the flowers often end up piercing them game is such where there are no competitors no winners nor losers I am running to catch myself all alone silent, but surrounded by noises Wish to run somewhere far away I am scattered, tom from my own self do not remember when I had last laughed forgotten beautiful songs of life I am the center of a clock whose hands are moving, the time is passing by I am stuck static in the circumstances Heart is beating rhythmatically searching for a melody Suddenly the mood of the season changed, in my destiny in the world of my dreams suddenly I felt . . . In dialogues between father, mother and son Tanmay, the films projects the confusion of the family as a unit. Tanmay is not prepared to enter into a marriage. His father is livid. His mother trying to broker peace persuades him, at least, to meet the girl. Tanmay, informs her that he has no problem with meeting the girl, but would certainly not spoil her life. Father at this point bursts out. He wished Tanmay was never bom. In yet another scene, Tanmay is talking to one girl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manvendra singh Gohil. The objectionable words, according to him, were gay and homosexual . 17. The petitioner was not ready to relent. According to him, these dialogues were not objectionable. If forced to be dropped, it would mutilate the storyline. The Commissioner, thereupon, passed his first order rejecting the application on May 18, 2013 on the simple ground that since the petitioner had declined to remove such dialogues and words, it was not possible to grant exemption. The revisional authority, however, adopted a far more pragmatic and, in our opinion, correct approach. He desired that the Commissioner should examine the film not dialogue by dialogue but as a whole. If the core of the film is seen and then if it is found that it falls in any of the excepted categories, he requested that the Commissioner to pass such an order after examining such details. It was in the second round of consideration that the Commissioner passed a detailed speaking order and rejected the request of the petitioner for tax exemption for the reasons noted earlier. 18. To our mind, none of the grounds pressed in service by the Commissioner and the conclusions based on such grounds are s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that a character admonishes a woman for getting abortion in her desire to bear a male child, we do not see how the film falls in the excepted category. Mere mention of a teacher's habit, even if undesirable does not make the film objectionable. The film does not even remotely support or promote such tendency. In fact, the reference to abortion is in no way encouraging but seems to be discouraging the person. 21. The dialogues by Shri Manvendrasingh Gohil must be seen as a whole. One sentence or an utterance cannot be picked in isolation to project that he is either encouraging or propagating gayism. The entire undertone is his attempt to come to terms with a preference which is not considered normal and at best of the times looked down upon by the society. He seems to be suggesting that the person with such a preference must have the courage to accept it and come out in the open and at the same time the society must accept such a person as he is, without passing value judgments. In essence he, therefore, asserts right of a gay person to lead life with human dignity. Even a person with homosexual preference as human being has right to life and liberty guaranteed under art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw 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. 23. Once again, the ground that the subject of the film being controversial and one which members of the family cannot sit together and watch and therefore if exemption is granted it would send a negative signal to the society is an observation based on personal opinion of the authority. As a Government authority, the Commissioner is expected to implement the Government policy dissociating himself from his personal views on the subject. There is nothing in the policy to suggest that if a film has received A certificate, tax exemption cannot be granted. Whether a film can be viewed with all members of the family depends on number of factors. It is based on perceptions and such perceptions are not static. The perceptions may change from time to time, from era to era, from family to family and from region to region. Merely because in some cases the society is still not prepared to watch such a film in presence of people of different generations or age groups, wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al integrity or the likes. It provides for tax exemption to all Gujarati colour films except a small category of them, which fall in the exception clause. The Government does not in any manner, identify with any theme, subject, storyline of any film to which such exemption is being granted. It may be purely an entertainment film and may have no social angle whatsoever and may have been made purely for commercial reasons. The policy' still envisages tax exemption simply because it happens to be a Gujarati colour film made after April 1, 1997. There is absolutely no element of Government supporting or opposing certain policy propagated in such film. The Government would be a neutral bystander having no policy of its own, it would only actively discourage such films which fall in the exception clause. 27. To suggest that the topic of gay youth going through all the confusions and dilemmas on his discovery of a rare unusual side of his personality is one of the exceptions is simply not possible to accept. The subjects referred to in para of the G. R. are:- (i) Evil custom: To fall in this category, a practice has to be first categorized as a custom. Concept of customary prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he beginning of the judgment, right to express oneself is a fundamental right and is zealously guarded by the courts. With passage of time, mankind has developed various means of expressing itself. The need to innovate, create and communicate drives the human beings to find more and more effective and artistic ways of expressing oneself. These forms of expression are not confined to spoken or written words. Drawing, painting, film making, drama, theatre, music, cartoon, demonstration and sometimes silence are all media of expression which would be covered and therefore guarded under article 19(1)(a) of the Constitution guaranteeing freedom of speech and expression to every citizen of the country. Such right of course is subject to reasonable restriction imposed by law in the interest 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 of an offence. 30. In the case of Maneka Gandhi v. Union of India AIR 1978 SC 597, the apex court in the context of reasonable restrictions that may be imposed under article 21 to the right to li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to carry on its activity by keeping in view the class of readers, the conditions of labour, price of material, availability of advertisements, size of paper and the different kinds of news comments and views and advertisements which are to be published and circulated. The law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by article 19(2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakai Papers case AIR 1962 SC 305 ;[1962] 3 SCR 842 to be the direct consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under article 19(1) (a) on the aspects of propagation, publication and circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the most important medium in which issues of general concern can be treated. The producer may project his own message which the others may not approve of. 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. While dealing with the role of the courts in striking a balance between the interest of freedom of expression and social interest, the court observed:- '45. The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under page 0021 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 special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of 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, conjectura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbiguous message that terrorism does not pay, that the arms of law and order machinery are too strong and that those who kill have ultimately to meet with death. There has been shown nothing in the film from which it could be inferred that the LTTE has been glorified or attracts the sympathy of the public. 37. In the case of Director General, Directorate General of Doordarshan v. Anand Patwardlmn AIR 2006 SC 3346, the Supreme Court considered the objection of the doordarshan to telecast a documentary film titled Father, Son and Holy War . The documentary film pertained to religious violence concerning the incident of Safi in Deorala village in Rajasthan State concerning a widowed lady Roop Kanvar. One of the grounds for not telecasting the film was that it would create law and order problems. The Supreme Court in this context observed that the correct approach to be taken in such a case is to look at the documentary film as a whole and not in bits as any message that is purported to be conveyed by way of film cannot be conveyed just by watching certain bits of the film. The court further observed that the freedom of expression, which is legitimate and constitutionally protec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the protective provisions of Clause 5 or Clause 6 of that article. To do so the burden is on those who seek that protection and not on the citizen to show that the restrictive enactment is invalid (C f . Saghir Ahmed v. State of U. P.[1955] 1 SCR 707 and Khyerbari Tea Co. Ltd v. State of Assam[1964] 5 SCR 975). 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 above 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[1986] 159 ITR 856 (SC); AIR 1986 SC 515. In the said case, the court was considering the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that the entire focus of the court was on the principle of presumption of constitutionality of a statute framed by the Parliament and the State Legislatures and the limited grounds on which a court of law would be permitted to strike down such laws as unconstitutional. In the concluding portion of the judgment the court observed as under:- 56. While parting with the case, we would like to make it clear that this court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of section 377, IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent Legislature shall be free to consider the desirability and propriety of deleting section 377, IPC from the statute book or amend the same as per the suggestion made by the Attorney General. 42. It can thus be seen that the crux of the said judgment is that as long as the law framed is within the competence of the Parliament or the State Legislature, as the case may be, and is not opposed to any of the fundamental rights or other provisions of the Constitution, the court would not annul the law declaring it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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