vil Appeal Nos 1668 and 1669 of 1988
From the Judgment and Order dated 2941988 of the Madras High Court in WR Nos 469 and 488 of 1988
Soli J Sorabjee VC Mahajan CA Sundaram UA Rana M Mudgal Ms Indu Malhotra CV Subba Rao A Mariar Autham Aruna Matbur NN Sharma Jose Varghese Bhagwan Das R Mohan RA Perumal and AV Rangam for the appearing parties
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
These appeals by leave are from the judgment of the Division Bench of the Madras High Court revoking the U Certificate  issued to a Tamil film called Ore Oru Gramathile In one Village for public exhibition
Civil Appeal Nos1668 and 1669 of 1988 are by the producer of the film and the Civil Appeal nos13667 and 133668 of 1988 are by the Union of India
He apprehends that she would not be able to get admission to college because she belongs to a Brahmin community
He seeks advice from his close friend Devashayam a Tehsildar
The Tehsildar who otherwise belongs to a very poor family and whose father was working in a local Church responds with gratitude
He divises a method to help Gayathri because it was through Sastry s father that he got proper education and rose to become a Tahsildar
He prepares a false certificate showing Gayathri as Karuppayee belonging to an Adi Dravida Community and as an orphan
He issues the certificate under the reservation policy of the Government for the benefit of backward commu nities  identified on caste consideration
On the basis of the false certificate Karuppayee gets admitted to college and enters IAS witness to this arrangement is the brother in law of Tahsildar called Anthony who later turns out to be a villain of the piece
Years later Karuppayee who was working in Delhi is sent to a rural village called Annavayil as a Special Offi cer for flood relief operations
Her father Shankara Sastry happens to work in the same village as Block Development Officer
However both of them pretend not to recognise each other
Karuppayee takes her work seriously and improves the living conditions of people to such an extent that she is held by them in high esteem
By a coincidence after the death of the Tahsildar Anthony comes to live in the same village and recognises Karuppayee
He starts blackmailing her and threatens to reveal the fraudulent means by which she got the caste certificate
His attempt is to extract money from her frequently
One evening when he visits Karup payee s house he is confronted by Shankara Sastry who puts a halt to his blackmailing
Later Anthony dies of sudden heart attack but not before he informs the Government about the facts relating to Karuppayee
Upon preliminary enquiry the Government suspends both Karuppayee and her father and eventually they are put on trial in the Court
The people of the village resentful of the action taken against Karuppayee rise as one man and demonstrate before the Court in a peace ful manner for her release
They also send petitions to the Government
Karuppayee and her father admit in the Court the fact of their having obtained the false caste certificate but they attribute it to circumstances resulting by Government reservation policy on caste basis
They say that they are prepared to undergo any punishment
They contend hat some politicians are exploiting the caste consideration and that would be detrimental to national integration
They also argue that the reservation policy should not be based on caste but could be on economic backwardness
Just about the time when the judgment is to be pronounced the Court re ceives intimation from Government that in the light of petitions received from the public the case against Karup payee and her father stands withdrawn
Karuppayee goes back to her Government job with jubilent people all round
 210 This is the theme of the picture presented
As usual it contains some songs dance and side attractions to make the film more delectable
On August 7 1987 the producer applied for certificate for exhibition of the film
The examining committee upon seeing the film unanimously refused to grant certificate
The appellant then sought for review by a Revising Committee which consisted of nine members
This Committee reviewed the film
Eight members were in favour of grant of certificate and one was opposed to it
The Chairman of the Censor Board however referred the film to Second Revising Committee for review and recommendation
The U  certificate means for unrestricted public exhibition as against A  certificate restricted to adults only
The minority expressed the view that the film is treated in an irresponsible manner
The reservation policy of the Govern ment is projected in a highly biased and distorted fashion
They have also stated that the so called appeal in the film India is One is a hollow appeal which in effect touches caste sensitivity of the Brahmin forward caste
One of the members felt that the impact of the film will create law and order problem
Another member said that the film will hurt the feelings and sentiments of certain sections of the public
But the majority opined that the theme of the film is on the reservation policy of the Government suggesting that the reservation could be made on the basis of economic backwardness
Such a view could be expressed in a free country like India and it did not violate any guideline
On December 7 1987 U  certificate was granted for the exhibition of the film which was challenged before the High Court by way of writ petitions
The writ petitions were dismissed by the Single judge but the Division Bench upon appeal allowed the writ petitions and revoked the certifi cate
The producer of the film and the Government of India by obtaining leave have appealed to this Court
The film has since been given National Award by the Directorate of Film Festival of the Government of India
In these appeals the fundamental point made by Mr Soli Sorabjee learned counsel for the producer is about the freedom of free expression guaranteed under our Constitution even for the medium of 211 movies
The counsel argued that the opinion on the effect of the film should not be rested on isolated passages disre garding the main theme and its message
The Film should be judged in its entirety from the point of its overall impact on the public
The writings of the film must be considered in a free fair and liberal spirit in the light of the freedom of expression guaranteed under our Constitution
The counsel said that the Court is not concerned with the cor rectness or legality of the views expressed in the film and the Court cannot limit the expression on any general issue even if it is controversial
Mr Mahajan for the Union of India supported these submissions
Mr Varghese learned counsel for the contesting respondents did not dispute most of the proposition advanced for the appellants
He was however critical about the manner in which the reservation policy of the Government has been condemned and the events and characters shown in the film
He contended that they are depicted in a biased manner and reaction to the film in Tamil Nadu is bound to be volatile
Before examining these rival contentions a few general observations may be made as to the utility of movies and the object of the film Censors Board
The motion pictures were originally considered as a form of amusement to be allowed to titillate but not to arouse
They were treated as mere entertainment and not an art or a means of expression
This theory was based on the concept that motion picture was a business pure and simpe originated and conducted for prof it like other spectacles
 It was considered strictly as an amusement industry
It was not without significance since there were no talking pictures then
The talking pictures were first produced in 1926 eleven years after the Mutual decision Encyclopedia Britinnica 1965 Vol
15 p 902
The later decisions of the American Supreme Court have therefore declared that expression by means of motion pictures is included within the free speech and free press guaranty of the First Amend ment
See Burstyn vs Wilso  The First Amend ment to the US Constitution provides Congress shall make no law  abridging the freedom of speech or of the press This Amendment is absolute in terms and it contains no exception for the exercise of the fight
Heavy burden lies on the State to justify the interference
The judicial decisions however limited the scope of restriction which the State could impose in any given circumstances
The danger rule was born in Schenek vs United States 249 US 47 1919
Justice Holmes for a unanimous court evolved the test of clear and present danger
He used the danger test to 212 determine where discussion ends and incitement or attempt begins
The core of his position was that the First Amend ment protects only utterances that seeks acceptance via the democratic process of discussion and agreement
But Words that may have all the effect of force calculated to achieve its goal by circumventing the democratic process are however not so protected
The framework of our Constitution differs from the First Amendment to the US Constitution
Article 191a of our Constitution guarantees to all citizens the right to freedom of speech and expression
The freedom of expression means the right to express one s opinion by words of mouth writing printing picture or in any other manner
It would thus include the freedom of communication and the right to propagate or publish opinion
The communication of ideas could be made through any medium newspaper magazine or movie
But this right is subject to reasonable restrictions on grounds set out under Article 132 of the Constitution
The reason able limitations can be put in the interest of sovereignty and integrity of India the security of the State friendly relations with foreign States public order deceny or morality or in relation to contempt of court defamation or incitement to an offence
The Framers deemed it essential to permit imposition of reasonable restrictions on the larger interests of the community and country
They intended to strike a proper balance between the liberty guaranteed and the social interest specified under Article 192
See Santokh Singh vs Delhi Administration  This is the difference between the First Amendment to the US Constitution and Article 191a of our Constitu tion
The decisions bearing on the First Amendment are therefore not useful to us except the broad principles and the purpose of the guaranty
Movie doubtless enjoys the guaranty under Article 191a but there is one significant difference between the movie and other modes of communication
The movie cannot function in a free market place like the newspaper magazine or advertisement
Movie motivates thought and action and assures a high degree of attention and retention
It makes its impact simultaneously arousing the visual and aural senses
The focusing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective
The combination of act and speech sight and sound in semi darkness of the theatre with elimination of all distracting ideas will have an impact in the minds of spectators
In some cases it will have a complete and im 213 mediate influence on and appeal for every one who sees it
In view of the scientific improvements in photography and production the present movie is a powerful means of communi cation
It is said as an instrument of education it has unusual power to impart information to influence specific attitudes towards objects of social value to affect emo tions either in gross or in microscopic proportions to affect health in a minor degree through sleep disturbance and to affect profoundly the patterns of conduct of chil dren See Reader in Public Opinion and Communication Second Edition by Bernard Betelson and Morris Janowitz p 390
The authors of this Book have demonstrated at 391 to 401 by scientific tests the potential of the motion pic tures in formation of opinion by spectators and also on their attitudes
These tests have also shown that the effect of motion pictures is cumulative
It is proved that even though one movie relating to a social issue may not signifi cantly affect the attitude of an individual or group con tinual exposure to films of a similar character will produce a change
It can therefore be said that the movie has unique capacity to disturb and arouse feelings
It has as much potential for evil as it has for good
It has an equal potential to instil or cultivate violent or good behaviour
With these qualities and since it caters for mass audience who are generally not selective about what they watch the movie cannot be equated with other modes of communication
It cannot be allowed to function in a free market place just as does the newspapers or magazines
Censorship by prior restraint is therefore not only desirable but also neces sary
Here again we find the difference between the First Amendment to the US Constitution and Article 191a of our Constitution
The First Amendment does not permit any prior restraint since the guaranty of free speech is in unqualified terms
This essential difference was recognised by Douglas J with whom Black J concurred in Kingsley Corporation vs Regents of the University of New York at 1522
In holding that censorship by prior restraint on movies was unconstitutional the learned Judge said If we had a provision in our Consti tution for reasonable regulation of the press such India has included in hers there would be room for argument that censorship in the interests of morality would be permissi ble
But its language in terms that are absolute is utterly at war with censorship
214 Different questions may arise as to censorship of some news when the nation is actually at war
But any possible exceptions are extremely limited
 The The Act which permits censorship on movies is a comprehensive enactment
Section 3 of the Act provides for constitution of Board of Film Cen sors
Section 4 speaks of examination of films
A film is examined in the first instance by an Examining Committee
If it is not approved it is further reviewed by a Revising Committee under Section 5
Section 5A states 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 5a provides principles for guidance in certi fying films
It is significant to note that Article 192 has been practically read into Section 5B1
Section 5C confers right of appeal to Tribunal against refusal of certificate
Under Section 6 the Central Government has revisional power 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
Under Section 8 of the Act the Rules called the Cine matograph Certification Rules 1983 have been framed
Under Section 5B2 the Central Government has prescribed cer tain guidelines for the Censors Board
Guideline 1 relates to the objectives of film censorship
The Board shall ensure that a the medium of film remains responsible and sensi tive to the values and standards of society b artistic expression and creative freedom are not unduly curbed and c censorship is responsive to social change
Guideline 2 requires the Board to ensure that i anti social activities such as violence not glorified or justified ii the modus operandi of criminal or other visuals or words likely to incite the commission of any offence are not depicted iii pointless or avoidable scenes of violence cruelty and horror are not shown iv human sensibilities are not offended by vulgarity obscenity and depravity 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 and ix Public Order is not endangered
Guideline 3 also requires the Board to ensure that the film i 215 is judged in its entirety from the point of view of its overall impact and ii is examined in the light of contem porary standards of the country and the people to whom the film relates
It will be thus seen that censorship is permitted mainly on social interest specified under Article 192 of the Constitution with emphasis on maintenance of values and standards of society
Therefore the censorship by prior restraint must necessarily be reasonable that could be saved by the well accepted principles of judicial review
In KA Abbas vs Union of India  a Constitution Bench of this court considered important ques tions relating to pre censorship of cinematograph films in relation to the fundamental right of freedom of speech and expression
KA Abbas a noted Indian journalist and film producer produced a short documentary film called A tale of Four Cities
In that film he sought to contrast the self indulgent life of the rich in Metropolitan cities with the squalor and destitution of labouring masses who helped to construct the imposing buildings and complexes utilised by the rich
The film also goes on to explore the theme of exploitation of women by men dealing in particular prosti tution
Abbas applied to the Board of Film Censors for a U  certificate permitting unrestricted exhibition of the film
He was informed by the regional officer that the Examining Committee had provisionally concluded that the film should be restricted to adults
The Revising Committee concurred in this result whereupon Abbas after exchanging correspond ence with the Board appealed to the Central Government
The Government decided to grant U  certificate provided that the scenes in the red light district were deleted from the film
Abbas challenged the action of the Board mainly on four issues out of which two did not survive when the Solic itor General stated before the Court that the Government would set on foot legislation to effectuate the policies at the earliest possible date
The two issues which survived thereupon were a that pre censorship itself cannot be tolerated under the freedom of speech and expression b that even if it were a legitimate restraint on the freedom it must be exercised on very definite principles which leave no room for arbitrary action
The standards that we set out for our censors must make a 216 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 relationships as banned in toto and for ever from human thought and must give scope for talent to put them before society
The requirements of art and litera ture include within themselves a comprehen sive view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius of social value
If the depraved begins to see in these things more than what an average person would in much the same way as it is wrongly said a Frenchman sees a woman s legs in everything it cannot be helped
In our scheme of things ideas having redeeming social or artistic value must also have impor tance and protection for their growth Recently Sabyasachi Mukharji J in Ramesh vs Union of India which is popularly called TAMAS case laid down the standard of judging the effect of the words or expression used in the movie
The learned Judge quoting with approval of the observation of Vivian Bose J as he then was in the Nagpur High Court in the case of Bhagwati Charun Shukla vs Provincial Govern ment AIR 1947 Nag 1 at 676 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
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 reasona ble man or as they say in English law the man on the top of a Clampham omnibus
 We affirm and reiterate this principle
The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and pru dence and not that of an out of the ordinary or hypersensi tive man
We however wish to add a word more
The Censors Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country
The moral values in particular should not be allowed to be sacrificed in the guise of social change or cultural assimilation
Our country has had the distinction of giving birth to a galaxy of great sages and thinkers
The great thinkers and sages through their life and conduct provided principles for people to follow the path of fight conduct
There have been continuous efforts at rediscovery and reiteration of those principles
Adi guru Shankaracharya Ramanujacharya Madhwacharya Chaitanya Maha Prabhu Swami Ram Krishan Paramhansa Guru Nanak Sant Kabir and Mahatma Gandhi have all enlightened our path
If one prefers to go yet further back he will find TIRUKKURAL the ethical code from Tiruv alluvar teaching which is a general human morality and wisdom
 Besides we have the concept of Dharam right eousness in every respect a unique contribution of Indian civilization to humanity of the world
These are the bedrock of our civilization and should not be allowed to be shaken by unethical standards
We do not however mean that the Censors should have an orthodox or conservative outlook
Far from it they must be responsive to social change and they must go with the current climate
All we wish to state is that the Censors may display more sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of those who see it
Krishna Iyer J in Rajkapoor vs Laxman  in words meaningful expressed similar thought
The learned Judge said at 5 17 The ultimate censorious power over the Censors belongs to the people and by indifference laxity or abetment pictures which pollute public morals are liberally certified the legislation meant by Parlia ment to protect people s good morals may be sabotaged by statutory enemies within With these prefactory remarks let us now turn to the reasons which weighed with the High Court to revoke the U  certificate and rule out the film altogether
The High Court has found fault with the Constitution of the First Revising Committee
It has held that the Revising Committee was constituted hurriedly and its constitution by delegate Board Member was illegal and without authority of law
The Committee also showed unusual favour to the producer by reviewing the film with hot haste
In the absence of a First Revising Committee having come into existence as known to law the High Court said that the constitution of the Second Revising Committee was invalid and inoperative
We do not think that the High Court was justified in reaching this conclusion
Under the rules the Regional Officer shall appoint an 218 Examining Committee to examine the film
The Rule 22 inter alia states that after screening the film the Examining Officer shall within three working days send the recommendations of all the members of the Examining Committee to the Chairman
Rule 241 provides for constitu tion of a Revising Committee
It states that on receipt of the record referred to in rule 22 the Chairman may of his own motion or on the request of the applicant refer the movie to a Revising Committee
In the instant case the Chairman did not constitute the first Revising Committee but a member of the Board did
The question is whether the member of the Board was competent to constitute the Revising Committee
Our attention was drawn to the Government order dated January 21 1987 made under sec
7B of the Cinemato graph Act
The order reads No 803186 FC Government of India Ministry of Human Resource Development Department of Culture
New Delhi the 21st January 1987 ORDER In exercise of the powers conferred by Sec
7B of the Cinamatograph Act 1952 37 of 1952 hereinafter referred to as the said Act the Central Government hereby directs that any power authority or jurisdiction exercisable by the Board of film Certifica tion hereinafter referred to as the Board in relation to matters specified in sec4 sub secs 3 and 4 of sec5 sec5 A and sec7C of the said Act shall also be exercisable subject to the condition given below by the following members of the Board at the Regional Office indicated against each with immediate effect and until further orders 1
Shri Samik Banerjee Calcutta 2
Ms Maithreyi Ramadhurai Madras 3
Dr BK Chandrashekar Bangalore XXX XXXX XXX XXXX This order clearly states that the power of the Board shall also be exercisable by the specified members within their regional office
For 219 Madras region Ms Maithrayi Ramadhurai has been constituted to exercise such powers
It cannot be contended that the Central Government has no power to delegate the powers or to issue the said order
7B empowers the Central Government to issue general or special order directing that any power authority or jurisdiction exercisable by the Board under the Act shall be exercisable also by the Chairman or any other member of the Board
The section further provides that anything done or action taken by the Chairman or other member specified in the order shall be deemed to be a thing done or action taken by the Board
From the provisions of sec7B read with the Government order dated January 21 1987 it becomes clear that the constitution of the First Revising Committee by the member at the Madras Regional Office is not vulnerable to any attack
It is legally justified and unassailable
The conclusion to the contrary reached by the High Court is apparently unwarranted
We also do not find any justification for the observa tion of the High Court that there was unusual favour shown to the producer by the First Revising Committee in reviewing the film
It is true that the film was reviewed within 2 3 hours of the presentation of the application
But there is no reason to attribute motives either to members of the Committee or to the producer
In matters of certification of films it is necessary to take prompt action by the respec tive authorities
The producer who has invested a large capital should not be made to wait needlessly
He has a statutory right to have the validity of the film determined in accordance with law
It would be therefore proper and indeed appreciative if the film is reviewed as soon as it is submitted
There are two other side issues which may be disposed of at this stage
The scene with song No 2 in reel No 3 and the comments by the heroine of looking at the photo of Dr Ambedkar have come under serious criticism
It is said that the song has the effect of spreading Kulachar  which is Poisonous message  to the depressed classes not to educate their children
The complaint if true is serious
We therefore gave our anxious consideration to the grievance
We as did the High Court viewed the movie
The cobbler sings the song in question with his grandson who is eager to go to school
The song contains references to Kamaraj Anna and MGR who without even college education became Chief Ministers
The cobbler asks the grandson What are you going to achieve by education and don t forsake the profes sion you know and you can educate yourself as a cobbler
 220 While these and other exchanges are going on between the cobbler and grandson the heroine comes and insists that the boy should go to school
They agree to her suggestion with Vanakkam Vanakkam
The song thus ends with a happy note and the cobbler agrees to send his grandson to school
It is true as pointed out by counsel for the respondents that one or two references in the song are not palatable but we should not read too much into that writing
It is not proper to form an opinion by dwelling upon stray sentences or isolated passages disgregarding the main theme
What is significant to note is that the cobbler ultimately does not insist that his grandson should continue the family pursuits
He accepts the suggestion made by the heroine
It is therefore wrong to conclude that the song was intended to convey poisonous message against the inter ests of depressed classes
The criticism on the alleged comments on Dr Ambedkar is equally unsustainable
The confusion perhaps is due to the pronounced accent of an English word in the course of Tamil conversation
The matter arises in this way Sastry shows the photograph of Dr Ambedkar to heroine and enquires whether she likes it
Then she makes certain comments
According to the High Court she states Dr Ambedkar worked for the poor
Not for par 
If she states like that it is certainly objectionable since Dr Ambedkar did everything to have an egalitarian society
But while viewing the film we could not hear any such word used by the heroine
On the other hand we distinctly noted her saying Dr Ambedkar worked for the poor Not for power 
This being the remark there is no basis for the criticism of the High Court
The last complaint and really the nub of the case for the respondent is about the reel No 14 covering the court scene where Karuppayee and Sastry are prosecuted for offence of obtaining a false caste certificate
The reel No 14 contains almost a dialogue between the prosecution lawyer and Karuppayee
She criticises the reservation policy of the Government
She states that during the British regime the people enjoyed educational freedom and job opportunities which were based on merit criteria and not vote caste in a particular constituency
Then the prosecution lawyer puts a question why do you regret this Madam Was not Bharat Matha  under shackles then She replies You are right
Now Bharat Matha is under animals  hands
 On a further question from the prosecutor she explains that her reference to animals  hands is only to those who incite caste language and communal fanaticism thus confusing people and making it their profession
She also states that it is the Government and its laws that have made her and her father to tell a lie
The presiding Judge interrupts with a question What is wrong in the Government approach Can you elaborate She replies That it is wrong not to give credence to her merit and evaluate the same on the basis of her caste and such evaluation would put a bar on the progress She goes on to explain Your laws are the barri ers Sir
You have made propaganda in nook and corner stating Be an Indian Be an Indian
And if I proudly say I am an Indian then the Government divides saying no no no  
You are a Brahmin you are Christian you are a Muslim
It is the Government that divides
 Then she puts a question to herself What is the meaning of Be an Indian She explains that it must be without caste creed and commu nal considerations from Kashmir to Kanyakumari the country must be one
She then blames the Government with these words The Government in dealing with all has no one face
Take any application form they want to know your caste and religion
When all are Indians where is the necessity for this question
You have divided the people according to caste
Then if you reel off on National integration will not the public laugh
 As to the reservation policy to those who are backward she says On Gods name I have no objection in providing all concessions to those who are backward
The list of those belonging to forward sections and backward sections could be prepared on the basis of economic considerations
And those below a specified limit of income be included in the back ward list
 How did the High Court look at it On the remark of heroine as to the situations that existed during British administration the High Court observed thus It is preposterous and offensive to claim that education was independent when India was under British rule and that after independ ence it is not there
 The High Court also said That any denigration of Rule of law would never 222 bring orderly society
To preach that it is only law that prompted them to utter falsehood and in its absence they would not have done it is a wrong way presenting a view point
 As to the allegations that Bharat Matha  is now in the hands of politicians who are instigating the masses on the basis of caste and language etc the High Court remarked If this sort of decrying India for being an independent nation is to be projected in films repeatedly then in course of time citizens will loose faith in the integrity and sovereignty of India
With this sort of glori fication made how could it be claimed that the film stands for national integration
That was why one Member rightly said that it is a hollow claim
Hence Guideline 2vi and vii are contravened
 On the total impact of the film the High Court observed That certain peculiar factors will have to be taken into account because of guidelines 3i and 3ii
This film is in Tamil
It deals with reservations now extended to large sections of people on a particular basis and who have suffered for Centuries and at a time when they have not attained equality and when their valuable rights which are secured under the Constitution is attempt ed to be taken away they get agitated
This film taken in Tamil for Tamil population on being screened in Tamil Nadu will certainly be viewed in the background of what had hap pened in Tamil Nadu during the preceding four decades and the reactions are bound to be volatile
 We find it difficult to appreciate the observations of the High Court
We fail to understand how the expression in the film with criticism of reservation policy or praising the colonial rule will affect the security of the State of sovereignty and integrity of India
There is no utterance in the film threatening to overthrow the Government by unlawful or unconstitutional means
There is no talk for secession either
Nor there is any suggestion for impairing the inte gration of the country
All that the film seems to suggest is that the existing method of reservation on the basis of caste is bad and reservation on the basis of economic back wardness is better
The film also deprecates exploitation of people on caste considerations
This is the range and rigor of the film
The High Court however was of opinion that public reaction to the film which seeks to change the system of reservation is bound to be volatile
The HIgh Court has also stated that people of Tamil Nadu who have suffered for centuries will not allow themselves to be deprived of the benefits extended to them on a particular basis
It seems to us that the reasoning of the High Court runs a foul of the democratic principles to which we have pledged ourselves in the Constitution
In democracy it is not necessary that every one should sing the same song
Freedom of expression is the rule and it is generally taken for granted
Every one has a fundamental right to form his own opinion on any issue of general concern
He can form and inform by any legitimate means
The democracy is a Government by the people via open discussion
The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community
The public discussion with people participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government
The democracy can neither work nor prosper unless people go out to share their views
The truth is that public discussion on issues relating to administration has positive value
When they ignore it they go inside themselves and find out what is there
They elaborate their prejudice instead of increasing their knowledge
In Maneka Gandhi vs Union of India 1978 2 SCR 621 Bhagwati J observed at 696 Democracy is based essentially on free debate and open discussion for that is the only corrective of Government action in a democratic set up
If democracy means government of the people by the people
it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice free and general discussion of public matters is absolutely essential 224 The learned judge in Naraindas vs State of Madhya Pradesh1974 3 SCR 624 while dealing with the power of the State to select text books for obligatory use by students said at 650 It is our firm belief nay a con viction which constitutes one of the basic values of a free society to which we are wedded under our Constitution that there must be freedom not only for the thought that we cherish but also for the thought that we hate
As pointed out by Mr Justice Holmes in Abramson vs United States  The ultimate good desired is better reached by free trade in ideas the best test of truth is the power of the thought to get itself accept ed in the competition of the market
 There must be freedom of thought and the mind must be ready to receive new ideas to critically analyse and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest
 In Sakal vs Union of India  at 866 Mudholkar J said This Court must be ever vigilent in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution
The reason for this is obvious
The freedom of speech and expression of opinion is of para mount importance under a democratic Constitu tion which envisages changes in the composi tion of legislatures and governments and must be preserved
Movie is the legitimate and the most important medium in which issues of general concern can be treated
The producer may project his own messages which the others may not ap prove 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
As Professor Fraund puts it The State may not punish open talk however hateful not for hypocritical reason that Hyde Parks are a safety valve but because a bit of sense may be salvaged from the odious by minds striving to be rational and this precious bit will enter into the amalgam which we forge Paul A Freund On Understanding the Supreme Court 26 1950
When men differ in opinion both sides ought equally to have 225 the advantage of being heard by the public Benjamin Franklin
If one is allowed to say that policy of the government is good another is with equal freedom entitled to say that it is bad
If one is allowed to support the governmental scheme the other could as well say that he will not support it
The different views are allowed to be expressed by proponents and opponents not because they are correct or valid but because there is freedom in this country for expressing even differing views on any issue
Alexander Meiklejohn perhaps the foremost American philosopher of freedom of expression in his wise little study neatly explains When men govern themselves it is they and no one else who must pass judgment upon unwisdom and unfairness and danger
And that means that unwise ideas must have a hearing as well as wise ones unfair as well as fair dangerous as well as safe an Ameri can as well  American  
If then on any occasion in the United States it is allowable in that situation to say that the Constitution is a good document it is equally allowable in that situation to say that the Constitution is a bad document
If a public building may be used in which to say in time of war that the war is justified then the same building may be used in which to say that it is not justified
If it be publicly argued that conscription for armed service is moral and necessary it may likewise be publicly argued that it is immoral and unnecessary
If it may be said that American political insti tutions are superior to those of England or Russia or German it may with equal freedom be said that those of England or Russia or Germany are superiors to ours
These conflict ing views may be expressed must be expressed not because they are valid but because they are relevant  
To be afraid of ideas any idea is to be unfit for self government Political Freedom 1960 at 27
He argued if we may say so correctly that the guaran tees of freedom of speech and of the press are measures adopted by the people as the ultimate rulers in order to retain control over the Government the people s legislative and executive agents
Brandies J in Whitney vs California  375 8 1927 propounded probably the most attractive free speech theory 226    that the greatest menace to freedom is an inert people that public dis cussion is a political duty  It is hazardous to discourage thought hope and imagination that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies and that the fitting remedy for evil counsels is good ones
 What Archibald Cox said in his article though on First Amendment is equally rele vant here Some propositions seem true or false beyond rational debate
Some false and harm ful political and religious doctrine gain wide public acceptance
Adolf Hitler s brutal theory of a master race  is sufficient exam ple
The liberty cannot be denied to some ideas and saved for others
The reason is plain enough no man no committee and surely no government has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debata ble and both from what is false
To license one to impose his truth upon dessenters is to give the same licence to all others who have but fear to lose power
The judgment that the risks of suppression are greater than the harm done by bad ideas rests upon faith in the ultimate good sense and decency of free peo ple Society Vol
24 p 8 No 1 NovemberDecember 1986
The problem of defining the area of freedom of expres sion when it appears to conflict with the various social interests enumerated under Article 192 may briefly be touched upon here
There does indeed have to be a compromise between the interest of freedom of expression and social interests
But we cannot simply balance the two interests as if they are of equal weight
Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered
The anticipated danger should not be remote conjectural or far fetched
It should have proximate and direct nexus with the expression
The expression of thought should be intrinsically dangerous to the public interest
227 Our remarkable faith in the freedom of speech and ex pression could be seen even from decisions earlier to our Constitution
There the accused was convicted under sec124A of Penal Code for making a speech recommending Bolshevik  form of Government to re place the then existing form of Government in Calcutta
While setting aside the conviction and acquitting the ac cused Lord Williams J who delivered the judgment ob served at 637 All that the speakers did was to encourage the youngmen whom he was addressng to join the Bengal Youth League and to carry on a propaganda for the purpose of inducing as large a number of people in India as possible to become supporters of the idea of communism as represented by the present Bolshevik system in Russia
It is really absurb to say that speeches of this kind amount to sedition
If such were the case then every argument against the present form of Government and in favour of some other form of Government might be allowed to lead to hatred of the Government and it might be suggested that such ideas brought the Govern ment into contempt
To suggest some other form of Government is not necessarily to bring the present Government into hatred or contempt
 To the same effect is the observation by the Bombay High Court in Manohar vs Government of Bombay AIR 1950 BOM 210
There the writer of an article in a newspaper was convicted for an offence under the Press Emergency Powers Act 1931 for incitement to violence
The writer had suggested the people to follow the example of China by rising against Anglo American Imperialism and their agents
He had also suggested his readers to pursue the path of violence as the Chinese people did in order that Anglo American Imperialism should be driven out of this country
Chagla CJ while quashing the conviction said at 2 13 It is true that the article does state that the working class and the coiling masses can get hold of power through the path of revolution alone
The revolution preached is not necessarily a violent revolution
228 XXX XXX XXX XXX As the writer has not stated in this article that the toiling masses should take up arms and fight for their rights and thus achieve a revolution we refuse to read this expression as inciting the masses to violent methods
 In Niharendu Dutt Majumdar vs Emperor AIR 1942 FC 23 the Federal Court examined the effects of a vulgar and abusive outburst against the Government made by the accused for which he was convicted under Rule 34 of the Defence of India Rules
Gwyer CJ while acquitting the person commented more boldly at 27 There is an English saying that hard words break no bones and the wisdom of the common law has long refused to regard an actionable any words which though strictly and liberally defamatory would be regarded by all reasonable men as no more than mere vulgar abuse
XXX XXX XXX XXX XXX The speech now before us is full of them
But we cannot regard the speech taken as a whole as inciting those who heard it even though they cried shame shame at intervals to attempt by violence or by public disorder to subvert the Government for the time being established by law in Bengal or elsewhere in India
That the appellant expressed his opin ion about that system of Government is true but he was entitled to do so and his reference to it were we might almost say both common place and in common form and un likely to cause any Government in India a moments uneasyness
His more violent outburst were directed against the then Ministry in Bengal and against the Governor in Bengal in his political capacity but we do not feel able to say that his speech whatever may be thought of the form in which it was expressed exceed ed the legal limits of comment or criticism
 Even the European Court s approach in protecting the freedom of expression is not different although they have the extensive list of circumstances for limiting the free dom
Article 10 of the European Convention of Human Rights and Fundamental Freedom provides 229 1 Every one has the right to freedom of expression
2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities condi tions restrictions or penalties as are pre scribed by law and are necessary in a demo cratic society in the interests of national security territorial integrity or public safety for the prevention of health or mor als for the protection of the reputation or rights of others for preventing the disclo sure of information received in confidence or for maintaining the authority and impartiality of the judiciary
However the European Court in Handyside vs United Kingdom 1976 EHRR737 observed at 754 The court s supervisory functions oblige it to pay the utmost attention to the principles characterising a democratic socie ty 
Freedom of expression constitutes one of the essential foundations of such a society one of the basic conditions for its progress and for the development of every man
Subject to Article 102 it is applicable not only to information  or ideas  that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend shock or disturb the State or any sector of the population
Such are the demands of that pluralism tolerance and broadminded ness without which there is no democratic society 
This means amongst other things that every formality  condition  restric tion  or penalty  imposed in this sphere must be proportionate to the legitimate aim pur sued
 This takes us to the validity of the plea put forward by the Tamil Nadu Government
In the affidavit filed on behalf of the State Government it is alleged that some organisa tions like the Tamil Nadu Scheduled CastesScheduled Tribes People s Protection Committee Dr Ambedkar People s Move ment the Republican Party of India have been agitating that the film should be banned as it hurt the sentiments of people belonging to Scheduled CasteScheduled Tribes
It is stated that the General Secretary of the Republican Party of India has warned that his party would not hesitate to damage the cinema 230 theatres which screen the film
It is further alleged that there were some group meetings by Republican Party members and Dr Ambedkar People s Movement with their demand for banning the film
With these averments it was contended for the State that the exhibition of the film
will create very serious law and order problem in the State
We are amused yet troubled by the stand taken by the State Government with regard to the film which has received the National Award
We want to put the anguished question what good is the protection of freedom of expression if the State does not take care to protect it If the film is unobjectionable and cannot constitutionally be restricted under Article 192 freedom of expression cannot be sup pressed on account of threat of demonstration and proces sions or threats of violence
That would tentamount to negation of the rule of law and a surrender to black mail and intimidation
It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State
The State cannot plead its inability to handle the hostile audience problem
It is its obligatory duty to prevent it and protect the freedom of expression
In this case two Revesing Committees have approved the film
The members thereof come from different walks of life with variegated experiences
They represent the cross sec tion of the community
They have judged the film in the light of the objectives of the Act and the guidelines pro vided for the purpose
We do not think that there is any thing wrong or contrary to the Constitution in approving the film for public exhibition
The producer or as a matter of fact any other person has a right to draw attention of the Government and people that the existing method of reserva tion in education institutions overlooks merits
He has a right to state that reservation could be made on the basis of economic backwardness to the benefit of all sections of community
Whether this view is right or wrong is another matter altogether and at any rate we are not concerned with its correctness or usefulness to the people
We are only concerned whether such a view could be advocated in a film
To say that one should not be permitted to advocate that view goes against the first principle of our democracy
We end here as we began on this topic
Freedom of ex pression which is legitimate and constitutionally protected cannot be held to ransom by an intolerant group of people
The fundamental freedom 231 under Article 191a can be reasonably restricted only for the purposes mentioned in Articles 192 and the restriction must be justified on the anvil of necessity and not the quicks and 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
In the result we allow these appeals reverse the judgment of the High Court and dismiss the writ petitions of the respondents
In the circumstances of the case however we make no order as to costs
YL Appeals allowed


Summary:
Petitioner No 1 Kothandran Spg
Mills Pvt Ltd w as taken over under the provisions of the Sick Textile Unde r takings Taking Over of Management Act 1972 and possessi on of the mill was taken by the National Textile Corporatio n respondent No 2
Subsequently the Sick Textile Underta k ings Nationalisation Act 1974 came into force
The petitioners filed a writ petition under Article 32 of the Constitution challenging the vires of the Sick Te x tile Undertakings Nationalisation Act 1974 and that t he mills be restored to them
It was also submitted that t he establishment had been closed down and the Textile Unde r taking had completely disappeared by 1969 and therefore t he aforesaid Act did not apply to it
Dismissing the writ petition HELD 1
The Sick Textile Undertakings Nationalisatio n Act 1974 has been put into the 9th Schedule of the Const i tution by the 39th Amendment and therefore has come und er the umbrella of protection provided under Article 31 B of the Constitution
130C D Minerva Mills Ltd  Ors
vs Union of India  Ors 
   Waman Rao vs Union of India   Panipat Woollen and General Mills Company Ltd Anr
vs Union of India  128 Ors
   applied
The First Schedule to the Act against Entry 96 sho ws the Petitioner s Mills
There is a legislative determinati on that petitioner company came within the definition of si ck textile undertaking  as provided in Section 2j of the Ac t