ition Civil No 107 of 1988
Under Article 32 of the Constitution of India Dr YS Chitale Dr NM Ghatate and SV Deshpande for the Petitioner
Kuldeep Singh Additional Solicitor General Soli J Sorabjee Parimal K Shroff PH Parekh Sanjay Bhartari and Miss A Subhashini for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This writ petition was disposed of by our Order dated 1st of February 1988 we indicated therein that we will give our reasons shortly
This we do by this judgment
The Writ Petition No 107 of 1988 is a petition under Article 32 of the Constitution
The petitioner is a practising advocate of the Bombay High Court
He approached this Court by means of the petition under Article 32 of the Constitution for issue of a writ in the nature of Prohibition or any other appropriate order restraining the respondents namely the Union of India the Director General of Doordarshan New Delhi Blaze Advertising Pvt Ltd and Govind Nehalani being the producer from telecasting or screening the serial titled Tamas and to enforce petitioner s fundamental rights under Articles 21 and 25 of the Constitution and declaring the screening or televising of Tamas as violative of section 5B of the 
One Javed Ahmed Siddique filed a writ petition in the High Court of Bombay being Writ Petition No 201 of 1988
The same came up before a learned single Judge of the High Court of Bombay who while admitting the same on 21st of January 1988 had granted stay of further telecasting of the said serial on TV till further orders
The respondents herein challenged the said order before the Division Bench of the Bombay High Court
The two learned Judges namely 1015 Justice Lentin and Justice Mrs Sujata Manohar saw the complete serial on 22nd of January 1988 and vacated the stay by an order dated 23rd of January 1988
The judgment is impugned in the special leave petition which is taken on board and is also disposed of by this common judgment
It may also be mentioned that four episodes of the said serial have already been telecast
The petitioner states that the exhibition of the said serial is against public order and is likely to incite the people to indulge in the commission of offences and it is therefore violative of section 5B 1 of the hereinafter called the Act  and destructive of principle embodied under Article 25 of the Constitution
It is also contended that under section 153A of the Indian Penal Code this presentation is likely to promote or attempts to promote on grounds of religion caste or community disharmony or feelings of enmity hatred or ill will among different religious racial language or regional groups or castes or communities and is further prejudicial to the maintenance of harmony between different religious racial language or regional groups and incites people to participate or trains them to the use or criminal force or violence or participate in such criminal acts
So therefore it is an offence under section 153A of the Indian Penal Code
Our attention was drawn to section 153B of the Indian Penal Code and it was submitted that the serial is prejudicial to the national integration
Serial Tamas depicts the Hindu Muslim tension and sikhmuslim tension before the partition of India
It further shows how the killings and looting took place between these communities before the pre independence at Lahore
Tamas is based on a book written by Sree Bhisham Sahni
It depicts the period prior to partition and how communal violence was generated by fundamentalists and extremists in both communities and how innocent persons were duped into serving the ulterior purpose of fundamentalists and communities of both sides and how an innocent boy is seduced to violence resulting in his harming both communities
It further shows how extremist elements in both communities infused tension and hatred for their own ends
That is how the two learned Judges of the High Court of Bombay mentioned hereinbefore have viewed it
They have also seen that realisation ultimately dawns as to the futility of it all and finally how inherent goodness in human mind triumphs and both communities learn to live in amity
They saw that the people learnt this lesson in a hard way
This is the opinion expressed by two experienced Judges of the High Court after viewing the serial
1016 The location of the story is Lahore
The period is just before independence
The very introductory part of the serial which was tele cast on 9th of January 1988 displayed that the idea and message behind the serial is to keep people away from getting involved in such violence arising out of communal animosity
By telecasting it on Doordarshan Dr Chitale appearing for the petitioner said now seen by vast majority of people the said serial is exposed to person of all ages who will fail to grasp the message if any behind the serial
The very first serial according to the petitioner depicts one person who is reported to be a member of Scheduled Caste from the Hindu community being asked by one Thekedar to get a pig killed and bring its dead body in order to serve the meal for an English man
The dead body is shown to be axed and collected by one person named Kalu  who is represented to be a Christian
Kalu gets a dead pig from the said member of the Scheduled Caste Hindu who killed it
That dead pig is shown to be found at the door steps of a mosque
This according to the petitioner was provocative and was bound to result in instigation in Hindus against Muslims and consequently to rouse Muslim anger resulting in some reaction on the part of the Muslims which in its own turn is bound to have reaction by way of some acts of violence on the part of Hindus
According to the petitioner the total result would be that there is likelihood that members of both the communities will rise in passion and anger against each other and take to acts which would lead to communal violence and riots
The petitioner further states that in the first episode shown on 9th January 1988 one elderly Hindu who is depicted as a Guru  a preceptor and is shown as giving inspirationadvice and instigation to a young boy to practise violence to begin with by asking the boy to cut the throat of the hen and when the boy gets nervous and shows his unwillingness and unpreparedness the Guru warns him that unless he showed his courage to kill a hen to begin with how can he become bold and courageous to kill his enemy
The petitioner further alleges that in the background of this incident and in context of what precedes and succeeds this incident between the Guru and the boy it is clear that Guru has instigated the boy to get into the trend of thought and feeling to be ready to commit violence against his enemies in oreder to kill them and on viewing the first part of the said serial as a whole this instigation is to Hindu young boys to take to violence against Muslims
This is nothing but promoting feelings of enmity and hatred between Hindus and Muslims
The petitioner further states that in the first serial the dialogue 1017 between the Hindu leaders and Muslim leaders is so arranged that Indian National Congress is suggested to be a Hindu Organisation
In the present background therefore the petitioner claims that the exhibition of said serial is likely to create communal disharmony
Tamas had been given U  certificate by the Central Board of Film Censor
In this connection we may refer to the relevant provisions of the  which is an Act to make provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematograph
Section 3 of the Act provides for Board of Film Censors
Section 4 of the Act provides for examination of films
A film is examined in the first instance by an Examining Committee under section 4A and in certain circumstances it is further examined by a Revising Committee under section 5
Members of both the Committees are expected to set out not only their recommendations but also the reasons therefore in cases where there is difference of opinion amongst the members of the Committee
Section 5A of the Act provides that if after examining a film or having it examined in the prescribed manner the Board considers that the film is suitable for unrestricted public exhibition such a certificate is given which is called U  certificate
Section 5B of the Act provides for guidance in certifying films
The said section 5B provides as follows 5 B Principles for guidance in certifying films 1 A film shall not be entitled for public exhibition if in the opinion of the authority competent to grant the certificate the film or any part of it is against 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 involves defamation or contempt of Court or is likely to incite the commission of any offence
2 Subject to the provisions contained in subsection 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 of the provides for the constitution of Appellate Tribunals consisting of persons who are familiar with the social cultural or political institutions of India have special knowledge of the various regions of India and also special knowledge of films and their impact on society to hear appeals from the orders of 1018 the Censor Board
Under section 5D as it stands at present the Tribunal can hear appeals by persons who having applied for a certificate in respect of a film are aggrieved by an order of the Board refusing to grant a certificate or granting a restricted certificate or directing the appellant to carry out certain excisions or modifications in the film
In addition there is also an overall revisional power in 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 the Appellate Tribunal to enquire into the matter and make such order in relation thereto as it thinks fit including a direction that the exhibition of the film should be suspended for a period not exceeding two months
Under the newly added sub section 5 of section 6 the Central Government has also been given revisional power in respect of a film certificated by the Appellate Tribunal on the ground that it is necessary to pass an order in the interests of the sovereignty and integrity of India the security of the State friendly relations with foreign States or public order or decency or morality
Learned Additional Solicitor General Shri Kuldeep Singh for the Central Government strongly urged before us that the film should be allowed to be exhibited
As a matter of fact in his enthusiasm he submitted that there should be an order to the Government to exhibit the film again and again
He urged that all the appropriate authorities have considered the film and Doordarshan authorities have also independently examined this question
It has to be borne in mind that there is no allegation of any mala fide or bad motive on the part of the authorities concerned
The only question therefore is whether the film has been misjudged or wrongly judged and allowed to be exhibited or serialised in TV on a wrong approach
This film indubitably depicts violence
That violence between the communities took place before the pre partition days is a fact and it is the truth
Dr Chitale however submits that truth in its naked form may not always and in all circumstances be desirable to be told or exhibited
During the course of the arguments before us on the 1st of February 1988 our attention was drawn to an item in the Hindustan Times of that day which contained an interview with the author Sree Bhisham Sahni
Strictly speaking such evidence is not admissible but since it is a matter of public interest we have looked into it
The author has received the Sahitya Akademi award for this novel
It was written in 1974
The book is being taught in various universities
There has been no adverse reaction to the novel during the past fourteen years
The author further said certain nuances which were however 1019 clear in the book are not so in the serial
The author has drawn attention to the incident that the mischief of getting a pig slaughtered and having it placed outside a mosque was done by a character referred to as Chaudhuri in the film
In the novel his full name is mentioned as Murad Ali which is obviously not a Hindu name according to the author
Vivian Bose J as he then was in the Nagpur High Court in the case of Bhagwati Charan Shukla vs Provincial Government AIR 1947 Nagpur 1 has indicated the yardstick by which this question has to be judged
There at page 18 of the report the Court observed that the effect of the words must be judged from the standards of reasonable strong minded firm and courageous men and not those of weak and vacillating minds nor of those who scent danger in every hostile point of view
This in our opinion is the correct approach in judging the effect of exhibition of a film or of reading a book
It is the standard of ordinary reasonable man or as they say in English law the man on the top of a clapham omnibus
This question came to be examined by this Court from a different angle in the case of KA Abbas vs The Union of India and another  There KA Abbas the petitioner made a documentary film called A Tale of Four Cities which attempted to portray the contrast between the life of the rich and the poor in the four principal cities of the country
The film included certain shots of the red light district in Bombay
Although the petitioner applied to the Board of Film Censors for a U Certificate for unrestricted exhibition of the film he was granted a certificate only for exhibition restricted to adults
The petitioner then filed the writ petition in this Court
At the hearing of the petition the Central Government indicated that it had decided to grant a U  certificate to the petitioner s film without the cuts previously ordered
Hidayatullah CJ has exhaustively dealt with the question and noted the statutory requirements
In that film there was a scanning shot of a very short duration much blurred by the movement of the photographer s camera in the words of Chief Justice in which the red light district of Bombay was shown with the inmates of the brothels waiting at the doors or windows
Some of them wore abbreviated skirts showing bare legs up to the knees and sometimes a short above them
This was objected to
The film was shown to the learned Judges in the presence of the lawyers
The learned Chief Justice at page 468 of the report addressed himself to the question How far can these restrictions go and how are these to be imposed
The Court examined the provisions of Sec 1020 tion 5B2 of the Act
After examining the relevant provisions and large number of authorities the Chief Justice noted that the task of the censor was extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination
Chief Justice at page 474 of the report observed as follows Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral
It should be our concern however to prevent the use of sex designed to play a commercial role by making its own appeal
This draws in the censors scissors
Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother
When the seer Tiresias exposed him his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes
No one after viewing these episodes would think that patricide or incest with one s own mother is permissible or suicide in such circumstances or tearing out one s own eyes is a natural consequence
And yet if one goes by the letter of the directions the film cannot be shown
Similarly scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection
If that were so Varrier Elwyn s Phulmat of the Hills or the same episode in Henryson s Testament of Cresseid from where Verrier Elwyn borrowed the idea would never see the light of the day
Again carnage and bloodshed may have historical value and the depiction of such scenes as the sack of Delhi by Nadirshah may be permissible if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila
If Nadir Shah made golgothas of skulls must we leave them out of the story because people must be made to view a historical theme without true history Rape in all its nakedness may be objectionable but Voltaire s Candide would be meaningless without Cunegonde s episode with the soldier and the story of Lucrece could never be depicted on the screen emphasis supplied Chief Justice observed that 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 1021 make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good
We must not look upon such human relationship as banned in toto and for ever from human thought and must give scope for talent to put them before society
In our scheme of things the Chief Justice noted ideas having redeeming social or artistic value must also have importance and protection for their growth
Our attention was also drawn by Dr Chitale to the decision of this Court in Ebrahim Sulaiman Sait vs MC Muhammad and another   where Gupta J speaking for the Court observed that truth was not an answer to a charge of corrupt practice under section 1233A of the said Act what was relevant was whether the speech promoted or sought to promote feelings of enmity or hatred as mentioned in that provision
But the likelihood must be judged from healthy and reasonable standards
The question was again considered by this Court in Rajkapoor vs Laxman  This Court reiterated that the Penal Code is general and the is special
The scheme of the is deliberately drawn up to meet the explosively expanding cinema menace if it were not strictly policed
No doubt the cinema is a great instrument for public good if geared to social ends and can be a public curse if directed to anti social objectives
The decision reiterated that a balance has to be struck
On the evidence available before this Court it appears that a balance has been struck
Dr Chitale emphasised that in an interview with the author the author said that Tamas was not a historical novel
It merely takes into account certain events from history and builds upon them
He further said that life provided the raw material and a writer moulded it according to his imagination and perception of reality
We have given full thought to the contentions urged on behalf of the petitioner and come to the conclusion that these contentions cannot be accepted for two reasons
Firstly as we have already pointed out the itself contains several provisions to ensure the fulfilment of the conditions laid down in section 5B and to ensure that any film which is likely to offend the religious suspectibilities of the people are not screened for public exhibition
In the present case the Film Censor Board has approved the exhibition of the film
That apart we are informed that the Doordarshan authorities also 1022 scrutinise a film before it is exhibited on the television screen
Though we do not have the details of the authority or body which scrutinised the film for purposes of exhibition on the television the procedure does involve further examination of the film from standards of public acceptability before it is shown on the television
It is true that the remedy of an approach to the Appellate Tribunal is available only to persons aggrieved by the refusal of the Board to grant a certificate or the cuts and modifications proposed by it
It is for the consideration of the Central Government whether the scope of this section should be expanded to permit appeals to the Tribunals even by persons who are aggrieved by the grant of certificate of exhibition to a film on the ground that the principles laid down for the grant of certificates in section 5B have not been fulfilled
But even on the statute as it presently stands the procedure for grant of certificate of exhibition to a film is quite elaborate and the unanimous approval by the examining Committee must be given full weight
As pointed out by Krishna Iyer J in the Rajkapoor case supra a Court would be slow to interfere with the conclusion of a body specially constituted for this purpose
Secondly in this case we have the advantage of the views of two experienced Judges of one of the premier High Courts of this country
The learned Judges found that the message of the film was good
They have stated that the film shows how realisation ultimately dawns as to futlity of violence and hatred and how the inherent goodness in human nature triumphs
Dr Chitale submitted that the Judges have viewed the film from their point of view but the average persons in the country are not as sober and experienced as Judges of the High Court
But the Judges of the High Court of Bombay have viewed it as they said from the point of view of how the average person for whom the film is intended will view it and the learned Judges have come to the conclusion that the average person will learn from the mistakes of the past and realise the machinations of the fundamentalists and will not perhaps commit those mistakes again
The learned Judges further observed that illiterates are not devoid of common sense or unable to grasp the calumny of the fundamentalists and extremists when it is brought home to them in action on the screen
This is how they have viewed it those who forget history are condemned to repeat it
It is out of the tragic experience of the past that we can fashion our present in a rational and reasonable manner and view out future with wisdom and care
Awareness in proper light is a first step towards that realisation
It is true that in certain circumstances truth has to be avoided
Tamas takes us to a historical past unpleasant at times but revealing and instructive
In those years which Tamas depicts a human tragedy 1023 of great diminsion took place in this sub continent though 40 years ago it has left a lasting damage to the Indian psyche
It has been said by Lord Morley in On Compromise that it makes all the difference in the world whether you put truth in the first place or in the second place
It is true that a writer or a preacher should cling to truth and right if the very heavens fall
This is a universally accepted basis
Yet in practice all schools alike are forced to admit the necessity of a measure or accommodation in the very interests of truth itself
Fanatic is a name of such ill repute exactly because one who deserves to be so called injuries good causes by refusing timely and harmless concession by irrigating projudices that a wiser way of urging his own opinion might have turned aside by making no allowances respecting no motives and recognising none of those qualifying principles that are nothing less than necessary to make his own principles true and fitting in a given society
Judged by all standards of a common man s point of view of presenting history with a lesson in this film these boundaries appear to us could have been kept in mind
This is also the lesson of history that naked truth in all times will not be beneficial but truth in its proper light indicating the evils and the consequences of those evils is instructive and that message is there in Tamas according to the views expressed by the two learned Judges of the High Court
They viewed it from an average healthy and commonsense point of view
That is the yardstick
There cannot be any apprehension that it is likely to affect public order or it is likely to incite into the commission of any offence
On the other hand it is more likely that it will prevent incitement to such offences in future by extremists and fundamentalists
Dr Chitale relying strongly on certain observations in Abbas  case supra at p 459 of the reports contended that there was real danger of the film in this case inciting people to violence and to commit other offences arising out of communal disharmony
It is no doubt true that the motion picture is a powerful instrument with a much stronger impact on the visual and aural senses of the spectators than any other medium of communications likewise it is also true that the television the range of which has vastly developed in our country in the past few years now reaches out to the remotest corners of the country catering to the not so sophisticated literary or educated masses of people living in distant villages
But the argument overlooks that the potency of the motion picture is as much for good as for evil
If some scenes of violence some nuances of expression or some events in the film can stir up certain feelings in the spectator an equally deep strong lasting and beneficial impression can be conveyed by scenes revealing the machinations of selfish interests scenes depicting mutual 1024 respect and tolerance scenes showing comradeship help and kindness which transcend the barriers of religion
Unfortunately modern development 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 the 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
In the present case the finding of the learned Judges of Bombay High Court is that the picture viewed in its entirety is capable of creating a lasting impression of this message of peace and co existence and that people are not likely to be obsessed overwhelmed or carried away by the scenes of violence or fanaticism shown in the film
We see no reason to differ from this conclusion
Before we conclude we note that the petition was based on alleged violation of Articles 21 and 25 of the Constitution
We are unable to see any alleged violation of those articles
We however accept the position that the petitioner has a right to draw attention of this Court to ensure that the communal atmosphere is kept clean and unpolluted
He has done well to draw attention to this danger
We have examined and found that there is no such danger and the respondents have not acted improperly or imprudently
In the aforesaid view of the matter this petition under Article 32 of the Constitution fails and is accordingly dismissed
Similarly on similar grounds the special leave petition arising out of the judgment and order of the Bombay High Court dated 23rd January 1988 in Appeal No 9688 is also dismissed
In the facts and circumstances of the case there will be no order as to costs
RSS Petition dismissed


Summary:
 A person had two sons the appellant Dharma and another Miragu
Miragu died issueless in 1928 leaving behind his widow respondent No 2
The Joint family property devolved on the appellant as sole surviving coparcener
The appellant disposed of certain properties
In 1956 the came into force
In 1968 the widow took respondent No 1 in adoption
Respondent Nos 1 and 2 filed a suit for partition and separate possession of one half share in the property of the joint family
Trial Court dismissed the suit
Respondent Nos 1 and 2 filed an appeal which was allowed by the District Judge and a preliminary decree for partition and separate possession was passed
The appellant filed an appeal before the High Court and the High Court affirmed the decree passed by the District Judge
Hence this appeal by special leave
The contention of the appellant was that respondent No 1 could not divest him of any part of the estate which had been vested in him before the adoption of respondent No 1 in view of clause c of the proviso to section 12 of the Act
Dismissing the appeal this Court  HELD The Joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener
1078 If a son is born to the sole surviving coparcener the said properties become the joint family properties in his hands and in the hands of his son
The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparceners in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property
If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale mortgage or gift would however stand for the coparcener who is born or adopted after the alienation cannot object to alienations made before he was begotten or adopted
1085G H 1086A C In the instant case the joint family properties which belonged to the joint family consisting of Dharma the appellant and his brother Miragu continued to retain the character of joint family properties in the hands of Dharma the appellant as Champabai the widow of Miragu was still alive and continued to enjoy the right of maintenance out of the said joint family properties
Pandurang the 1st respondent on adoption became the adopted son of Miragu and became a coparcener with Dharma the appellant in the joint family properties
When once he became a member of the coparcenary which owned the joint family properties he was entitled to institute a suit for partition and separate possession of his one half share in the joint family properties of course except those which had been alienated in favour of third parties before the adoption by Dharma the appellant
1084E G Clause c to proviso of section 12 of the Act would not be attracted in the instant case since there was no vesting  of joint family property in Dharma the appellant which took place on the death of Miragu and no divesting  of property took place when Pandurang the first respondent was adopted
1086D E The Joint family properties continued to remain in the hands of Dharma the appellant as joint family properties and that on his adoption Pandurang the 1st respondent became a member of the coparce 1079 nary entitled to claim one half share in them except those items which had been sold by Dharma the appellant
1086F YK Nalavade and Ors
vs Anand G Chavan and Ors AIR 1981 Bombay 109 approved
Sawan Ram  Ors
vs Kala Wanti  Ors 1967 3 SCR 687 Sitabai and Anr
vs Ram Chandra   referred to
Narra Hanumantha Rao vs Narra Hanumayya and Ors 1964 1 Andhra Weekly Reporter 156 ILR  overruled
Gowli Buddanna vs Commissioner of Income Tax Mysore Bangalore   Vasant and Anr
vs Dattu and Ors AIR 1987 SC 399 followed