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TMI Blog1992 (7) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... to examine the scope of the constitutional liberty of speech and expression. Civil Appeal No.1254/80 arises out of the decision of the Gujarat High Court in Special Civil Application No. 2711 of 1979 decided by a Division Bench on 17th June, 1980. The respondent, the executive trustee of the Consumer Education & Research Centre (CERC), Ahmedabad, after undertaking research into the working of the Life Insurance Corporation (LIC) published on 10th July, 1978 a study paper titled "A fraud on policy holder - a shocking story". This study paper portrayed the discriminatory practice adopted by the LIC which adversely affected the interest of a large number of policy holder. This study paper was widely circulated by the respondent. Mr. N.C. Krishnan, a member of the LIC prepared a counter of the respondent's study paper and published the same as an article in the "Hindu", a daily newspaper, challenging the conclusions reached by the respondent in his study paper. The respondent prepared a rejoinder which was published in the same newspaper. The LIC publishes a magazine called the 'Yogakshema' for informing its members, staff and agents about its activiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LIC to publish in the immediate next issue of Yogakshema the respondents' rejoinder to Mr. krishnan's reply to his study paper of 10th July, 1978. This view of the Gujarat High Court is assailed by the LIC in the first appeal. In the order appeal the facts reveal that Shri Tapan Bose, Managing Trustee of the respondent trust, had produced a documentary film on the Bhopal Gas Disaster title "Beyond Genocide". This film was awarded the Golden Lotus, being the best non-feature film of 1987. The respondent contended that at the time of the presentation of awards the Central Minister for Information & Broadcasting had made a declaration that the award winning short films will be telecast on Doordarshan. The respondent submitted for telecast his film to Doordarshan but Doordarshan refused to telecast the same on the ground : "the contents being updated do not have relevance now for the telecast". The respondent represented to the Minister for Information & broadcasting, but to no avail. He, therefore, filed the writ petition, being Civil Writ No. 212 of 1989, challenging the refusal on the ground of violation of his fundamental right under Article 19(1)(a) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terfere with the fundamental right guaranteed by Article 19(1)(a) of the constitution. It, therefore, directed Doordarshan to telecast the film "Beyond Genocide" at a time and date convenient to it keeping in view the public interest and on such terms and conditions as it would like to impose in accordance with law. It is against this direction of the High Court that the second the second appeal is preferred. Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments and feelings to others. Freedom of speech and expression is thus a natural right which a human being acquires on birth. It is, therefore, a basic human right. "Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers" proclaims the Universal Declaration of Human Rights (1948). The People of India declared in the Preamble of the Constitution which they gave into themselves their resolve to secure to all citizens liberty of thought and expression. This resolve is reflected in Article 19(1)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing society. The same trend is discernible from the decisions of the Indian Courts also. It must be appreciated that the Indian Constitution has separately enshrined the fundamental rights in Part III of the Constitution since they represent the basic values which the People of India cherished when they gave unto themselves the constitution for free India. That was with a view to ensuring that their honour, dignity and self respect will be protected in free India. They had learnt a bitter lesson from the behaviour of those in authority during the colonial rule. They were, therefore, not prepared to leave anything to chance. They, therefore, considered it of importance to protect specific basic human rights by incorporating a Bill of Rights in the Constitution in the form of Fundamental Rights. These fundamental rights were intended to serve generation after generation. They had to be stated in broad terms leaving scope for expansion by courts. Such an intention must be ascribed to the Constitution makers since they had themselves made provisions in the Constitution to bring about a socio- economic transformation. That being so, it is reasonable to infer that the Constitution maker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is well known that these communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance. Once it is conceded, and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagations of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him. Every free citizen has an undoubted right to lay what sentiments he pleases before the public; to forbit this, except to the extent permitted by Article 19(2), would be an inroad on his freedom. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest. It is manifest from Article 19(2) that the right conferred by Article 19(1)(a) is subject to imposition of reasonable restrictions in the interest of, amongst others, public order, decency or morality or in relation to defamation or incitement to an offence. It is, therefore, obvious that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that the constitutions guarantee of the freedom of speech and expression is not so much for the benefit of the press as it is for the benefit of the public. The people have a right to be informed of the developments that take place in a democratic process and the press plays a vital role in disseminating this information. Neither the Government nor any instrumentality of the Government or any public sector undertaking run with the help of public funds can shy away from articles which expose weaknesses in its functioning and which is given cases pose a threat to their power by attempting to create obstacles in the information percolating to the members of the community. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghtana & Ors., [1988] 3 SCC 410 a public interest litigation was commenced under Article 226 of the constitution to restrain the authorities from telecasting the serial 'Honi Anhony' on the plea that it was likely to spread false and blind beliefs and superstition amongst the members of the public. The high Court by an interim injunction restrained the authorities from telecasting the serial which led the producer thereof to approach this Court under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 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 only 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 or 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." From the above resume of the case law it is evident that this Court has always placed a broad interpretation on the value and content of Article 19(1)(a), making it subject only to the restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or suffocate this freedom have always been firmly repelled. More so when public authorities have betrayed autocratic tendencies. The question then is whether the respondent of the first appeal could as a matter of right insist that the LIC print his rejoinder in their magazine. The LIC denied this right on the ground that their magazine wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C is a State within the meaning of Article 12 of the Constitution, vide Sukhdev Singh & others v. Bhagatram Sardar Singh, [1975] 1 SCC 421. It is created under an Act, namely, the Life Insurance Corporation Act, 1956, and is charged with the duty 'to carry on Life Insurance business, whether in or outside India'. It is further charged with the duty to so exercise its powers under the Act as 'to secure that life insurance business is developed to the best advantage of the community' [Section 6(1)]. It is, therefore, obvious that the LIC must function in the best interest of the community. The community is, therefore, entitled to know whether or not this requirement of the statute is being satisfied in the functioning of the LIC. The respondent's effort in preparing the study paper was to bring to the notice of the community that the LIC had strayed from its path by pointing out that premium rates were unduly high when they could be low if the LIC avoided wasteful indulgences. The endeavour was to enlighten the community of the drawbacks and shortcomings of the corporation and to pin-point the areas where improvement was needed and was possible. With a view to sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent is to Mr. Krishnan's article printed in December 1978, the same has become stale by passage of time and has lost its relevance and hence this Court should annul the High Court's directive to the LIC to print and publish the same in its magazine. Counsel for the respondent submitted that the issued raised by the respondent regarding high premium rates is still live as the situation has not improved from what it was in 1978. It may be that the statistical information in the rejoinder may be outdated but, contends the learned counsel, the issue that the LIC is charging unduly high premium rates by refusing to prune its avoidable expenses, is still relevant. He submits that if the court acedes to the submission of the learned counsel for the LIC it would result in placing a premium on the recalcitrant attitude of the LIC. We see force in this submission. By refusing to print and publish the rejoinder the LIC had violated the respondent's fundamental right. A wrong doer cannot be heard to say that its persistent refusal to print and publish the article must yield the desired result, namely to frustrate the respondent. The Court must be careful to see that it does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r selection of a documentary film for telecast. These norms on which reliance was placed have been extracted in the judgment of the High Court and read as under: "(i) Criticism of friendly countries; (ii) Attack on religions and communities; (iii) Anything obscene and defamatory; (iv)Incitement of violence of anything against maintenance of law and order; (v) Anything amounting to contempt of court; (vi) Attack on a political party by name; (vii) Hostial criticism of any State or Centre." The High Court observes that these guidelines were purely departmental/executive instructions or notings on the file for internal guidance which cannot curtail the freedom conferred by Article 19(1)(a) and not being 'law' could not claim the protection of Article 19(2) of the Constitution. The learned Additional Solicitor General submitted that the High Court had completely misdirected itself in not apprediating that these norms were fixed keeping in mind the requirement of Section 5B of the Act which section was was consistent with Article 19(2) extracted earlier. We may now examine the scheme of the Act. The Act was enacted to provide for the certification of ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. (2) Subject to the provisions contained in sub- Section (1). the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition" Section 5C provides for the constitution of appellate tribunals, whereas Section 5D provides for appeals against the Board's decision refusing to grant the certificate or granting only 'A' Certificate or directing the applicant to carry out any excisions or modifications. In addition thereto revisional powers have been conferred on the Central Government 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 enquire into the matter and make such order in relation thereto as it thinks fit and where necessary give a direction that the exhibition of the film should suspended for a period not exceeding two months. Sub-section (5) of section 6 lays down that the Central Government may, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a praiseworthy quality in women are not presented; (ivb) Scenes involving sexual violence against women like attempt to rape, gangrape, murder or any other form of molestation or scences of a similar nature shall be avoided and if for any reason such things are found to be inevitable for the sequence of a theme, they shall be properly scruitinised so as to ensure that they do not create any adverse impression on viewers and the duration of the scenes shall be reduced to the shortest span; (v) Visuals or words contemptuous of racial, religious or other groups are not presented; (va) Visuals or words which promote communal obscurantist, antiscientific and anti-national attitudes are not presented; (vi) The sovereignty and integrity of India is not called in question; (vii) The security of the State is not jeopardised or endangered; (viii) Friendly relations with foreign States are not strained; (ix) Public order is not endangered; (x) Visuals or words involving defamation or contempt of court are not presented." In following these guidelines or principles the Board of Film Certification has been cautioned to ensure that the film is judged in its entirely from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich shall guide the authority competent to grant certificates under the Act in sanctioning films for public exhibition and since the exemption granted to Doordarshan under Section 9 of the Act from the provisions relating to certification of films in Part II of the Act and Rules made thereunder by notification dated 16th October, 1984 is subject to the condition that while clearing programs for telecast Doordarshan shall keep in view the film certification guidelines issued by the Central Government under Section 5B of the Act, the guidelines clearly have statutory flavour and would, therefore, fall within the protective umbrella of Article 19(2) and the High Court was wrong in brushing them aside as mere departmental/executive directions or notings on a file not having the force of law. We will so assume for the purpose of this appeal. However, once it is recognised that a film- maker has a fundamental right under Article 19(1)(a) to exhibit his film, the party which claims that it was entitled to refuse enforcement of this right by virtue of law made under Article 19(2), the onus lies on that party to show that the film did not conform to the requirements of that law, in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion and (ii) even if it is considered legitimate it must be exercised on well-defined principles leaving no room for arbitrary decisions. This Court held that censorship in Indian had full justification in the field of exhibition of films since it was in the interest of society and if the legitimate power in abused it can be struck down. While dealing with the grounds on which the `U' certificate was refused, the learned Chief Justice observed: "The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary of him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Unfortunately, modern developments both in the field of cinema as well as in the field of national and international politics have rendered it inevitable for people to face realities of internecine conflicts, inter alia, in the name of religion. Even contemporary news bulletins very often carry scenes of pitched battle or violence. What is necessary sometimes is to penetrate behind the scenes and analyse the causes of such conflicts. The attempt of the author in this film is to draw a lesson from our country's past history, expose the motives of persons who operate behind the scenes to generate and foment conflicts and to emphasise the desire of persons to live in amity and the need for them to rise above religious barriers and treat one another with kindness, sympathy and affection. It is possible only for a motion picture to convey such a message in depth and if it is able to do this, it will be an achievement of great social value." This Court upheld the finding of the Bombay high Court that the serial viewed in its entirety is capable of creating a lasting impression of this massage of peace and co-existence and there is no fear of the people being obsessed, overwh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, are all the same restrictions on the exercise of the fundamental right under Article 19(1)(a), such restrictions are bound to be viewed as anathema, in that, they are in the nature of curbs or limitations on the exercise of right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities that seek to impose them. The burden would therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable are permissible in law. From the above discussion it follows that unquestionably the respondent has a right to convey his perception of the gas disaster in Bhopal through the documentary film prepared by him. This film not only won the Golden Lotus award but was also granted the `U' certificate by the censors. Even according to the petitioners `the documentary is an appraisal of what exactly transpired in Bhopal on the date the gas leak occurred. The petitioners, therefore, concede that the film faithfully brings out the events that took place at Bhopal on that fateful night. Therefore, the respondent cannot be accused of having distorted the events subsequent to the disaster. How than can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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