* THE HONOURABLE SRI JUSTICE GODA RAGHURAM + WRIT PETITION NOs. 11006, 11381 & 11575 OF 2006. % WEDNESDAY, 21ST DAY OF JUNE, TWO THOUSAND SIX # Lakshmi Ganesh Films rep. by its Proprietor B.Subrahmanyam s/o Bhaskar Rao, Aged about 40 years, R/o Film Nagar Hyderabad and Others … Petitioners versus $ The Government of A.P., rep. by its Special Chief Secretary, to Government, Home Department, Secretariat, Hyderabad and others … Respondents ! Counsel for the petitioners : Mr. V.R. Reddy, Senior Counsel assisted by Mr. C.R.Sridharan Mr. M.S. Prasad, and Mr.Dama Seshadri Naidu, Advocates ^ Counsel for the respondents : Government Pleader for Home < Gist : >Head Note: ? 1. Identity and Violence – The Illusion of Destiny – Amartya Sen 2. AIR 1958 SC 578 3. 3 L.Ed. 2d 1512 4. 250 US 616 (1919) 5. 249 US 47, 52 (1919) 6. 274 US 357 (1927) 7. H.M. Seervai – Constitutional Law of India, 4th Edn. At 703 8. 93 L.Ed. 1131 (1150 and 1151) = (1948) 337 US 1 at 36 9. AIR 1951 SC 118 10. AIR 1952 SC 196 11. 2005(8) SCC 534 12. (2001)2 SCC 386 13. AIR 1973 SC 112; AIR 1967 SC 106 14. 403 US 15 (1971) 15. 394 US 576 (1969) 16. 340 US 315 (1951) 17. 427 US 50 (1976) 18. 106 S.Ct. 925 (1986) 19. 440 US 1 (1979) 20. 562 F.2d. 749 (1977) d.c. 21. 413 US 376 (1973) 22. 403 US 15 (1971) 23. 397 US 728 (1970) 24. 402 US 415 (1971) 25. 25 US 105 26. 352 US 380 (1957) 27. AIR 1950 SC 124 28. (1980) 1 SCC 43 29. (1989) 2 SCC 574 30. (2001) 1 SCC 582 31. 1995 (2) ALD 81 W.P.NOS.11006, 11575 & 11381 OF 2006 ORDER: The anti-Semitic Nazi genocide at Dachau, Bergen- Belsen and Auschwitz, the partition carnage, the Somnath pillage, the Godhra massacre, inquisitions, crusades, purges, ethnic cleansing, untouchability and slavery are but some of the shameful but recurring episodes in human history. Illustrations of man’s inhumanity to others; of intolerance of the pervasive diversity of the human condition; dehumanizing examples of mankind’s irrational and emotionally sterile response to aspects of others that are disagreeable; precedents of brutalizing dissent of colour, faith, dogma, race, ethnic origins, religious persuasions, descent, cultural practices or other insular indices of the human condition. We enjoy a shared membership of the human race and our future depends on tolerance of distinctions that mark the richness and diversity of the plural global community of man. Faith, race, religion, dogma or culture are not wholly homogeneous attributes. There are several clear subtle and evolving variations within the same general milieu. In his preface to his book[1] Prof. Sen points out: “Indeed, many of the conflicts and barbarities in the world are sustained through the illusion of a unique and choiceless identity. The art of constructing hatred takes the form of invoking the magical power of some allegedly predominant identity that drowns other affiliations, and in a conveniently bellicose form can also overpower any human sympathy or natural kindness that we may normally have. The result can be homespun elemental violence, or globally artful violence and terrorism.” Prof. Sen offers a prefatory solution to the tumult, turmoil, and barbarity that has beset human history, on false assumptions of the singularity of human identity: “ The prospects of peace in the contemporary world may well lie in the recognition of the plurality of our affiliations and in the use of reasoning as common inhabitants of a wide world, rather than making us into inmates rigidly incarcerated in little containers. What we need, above all, is a clear-headed understanding of the importance of the freedom that we can have in determining our priorities. And, related to that understanding, we need an appropriate recognition of the role and efficacy of reasoned public voice – within nations and across the world.” Freedom of speech and expression significantly contributes to a liberal open-minded civil society; rational, tolerant and accommodating plurality – what this freedom means and in the Indian constitutional context, is yet again in issue in this case. Heard Mr. V.R.Reddy, learned Senior Advocate instructed by Mr.C.R.Sridharan; Mr. M.S.Prasad and Mr. D.Seshadri Naidu, Advocates for the petitioners and the learned Government Pleader for Home for the State Government. The State Government by the impugned order (G.O.Rt.No.1012, Home (General.A) Department, dated.01-06- 2006) in purported exercise of the powers conferred under Section.8 of A.P. Cinemas Regulation Act,1955 ( A.P.Act No.4/1955) (for short “the 1955 Act”) suspended the exhibition of a movie “ The Da Vinci Code” in English, Telugu and other languages in the entire State, with effect from the publication of the notification. The reasons recorded for the above decision as set out in the impugned notification are: “ Government have received representations from various Minority Organizations, in general and Christian organizations, in particular, requesting the Government to impose ban on exhibition of the movie “The Da Vinci Code” to be released in the State of Andhra Pradesh on 2nd June, 2006. The ban should be from 2nd June 2006 onwards. They contended that the screening of the movie will not only offend religious sentiments but lead to demonstrations, disturb peace and tranquility in the State. The reports from the Government agencies indicate that some Christian groups may take recourse to agitational activities if the film is released and that untoward incidents may take place. Government after taking into consideration of the reports, complaints from Minority Community, particularly Christian Community regarding “The Da Vinci Code” have come into conclusion that exhibition of the film “The Da Vinci Code” is likely to cause breach of peace and hurt religious sentiments of Muslim and Christian Community, which may lead to demonstrations, disturb peace and tranquility in the State.” The writ petitions are filed challenging the above decision of the State Government. In W.P.No.11006 of 2006, the two (2) petitioners are the authorized distributors for the film in the State of A.P and for the Nizam region respectively; in W.P.No.11381 of 2006 the petitioner is the distributor of films of Sony Picture Entertainment in India, authorized to distribute the film in the territory of India; and the petitioner in W.P.No.11575 of 2006 is a citizen who is a secretary in a private organization by occupation, interested in the study of literature. He read Dan Brown’s novel and pleads that the book is a work of fiction, that having read the novel, coming to know that a motion picture was made out of it, he eagerly awaited an opportunity to appreciate and savor the visual conceptualization novel. The brief facts relevant and material for the purposes of this case are: (A) In 2003 an American author Dan Brown’s novel The Da Vinci Code was published as a work of fiction woven around an alternate interpretation of certain aspects of Christian belief. The key events/fact assumptions of the contentious interpretation which substrate Dan Brown’s novel are: § That the Holy Grail is not a physical substance, artifact or a chalice but a woman - Mary Magdelene who as the consort of Jesus carried the bloodline of the Christ; § The Catholic Church has for over 2000 years suppressed the truth regarding Mary Magdelene and the Jesus bloodline, apprehensive of the power of the sacred feminine; § Mary Magdelene of the house of Benjamin was of Royal descent and was married to Jesus, a descendant of the Royal house of David. She was pregnant at the time of the crucifixion, later fled to Gaul where she was protected and sheltered in Marseille and thereat gave birth to a daughter by name Sara. The blood line of Jesus and Mary Magdalene was the Merovingian Dynasty; § Leonardo Da Vinci, a member of the Priory of Sion was aware of this secret of the Grail and revealed it in his famous painting - The last supper. Drawing upon this core alternate interpretation, Dan Brown constructs his fictional work around a Harvard Symbologist Robert Langdon and an accomplished French cryptologist Sophie Neveu who set out to unravel the mystery of the Holy Grail. The novel became a world wide best seller and was translated into more than 40 languages. (B)The film is an adaptation from the novel and was released in different parts of world including in countries populated predominantly by people professing the Christian faith, in Europe, in the U.S.A, in Argentine and Spain, in Italy, France, Poland, Sweden and in South-East Asia and parts of Africa and India as well. (c) On 23-05-2006 the Central Board of Film Certification, Government of India (the Board), certified the film as fit for public exhibition, restricted to adult audience—“A” certificate. While the film was pending consideration for certification before the Board, representations were made by several Christian organizations to the Union Government to decline grant of certification and to ban the film. The Union Government organized a special screening for the objecting and other Christian organizations and the Minister for Information and Public Relations; Government of India also saw the film. Thereat it was decided that the producers should add a disclaimer both before and after the film that it is a work of fiction. Accordingly a disclaimer: The characters and incidents portrayed and the names herein are fictitious and any similarity with the name, character or history of any person is entirely coincidental and unintentional, was incorporated. Only after incorporation of the disclaimer the Board granted certification, on 23.5.2006. This averment by the petitioner (in W.P. 11006/06) is not refuted in the counter affidavit of the State. (D) After certification, the film was slated for release for screening in different parts of India on 23-05-2006. In Andhra Pradesh it was scheduled for release on 02-06- 2006. Just a day before, on 02-06-2006 the impugned notification was issued suspending the screening of the film. (E) After the impugned notification the petitioner (W.P.No.11381 of 2006) represented by its letter-dated 05-06-2006 to the State requesting withdrawal of the ban on the exhibition of the film. There is however no response from the State Government. (F)The film has been released in metropolitan centers like Mumbai, Kolkatta and Delhi as also in several other parts of the country including the State of Kerala where there is a substantial percentage of Christian population. According to the State Government’s counter only in the States of Andhra Pradesh, Tamil Nadu, Punjab, Nagaland, Goa and Meghalaya the film has not been released as these States have suspended exhibition of the film. The Special Chief Secretary to Government, Home Department, has filed a common counter affidavit on behalf of the State in W.P. Nos. 11006 and 11381 of 2006. To the extent relevant and material, the counter affidavit states that on 26.5.2006 a local distributor had advertised the release of the film on 2.6.2006. Thereafter several Christian organizations represented to the State Government objecting to the release and threatened agitations and protests if the film were released. Representations were submitted on 26.5.06 and 27.5.06. The Government called for an intelligence report and after taking note of the threat of large-scale protests, threats of violence and in view of the law and order problem, which may occasion breach of peace in the State, the impugned notification was issued suspending the exhibition of the film u/Sec. 8 of the 1955 Act. The answering respondent asserts that the impugned notification was issued and the decision taken after the Government was convinced that the exhibition of the film would cause law and order problem and breach of peace. In para-5 of the counter the core of the justification for the impugned notification is set out: The impugned order was passed by the Government keeping in view the representations made by various Christian Organizations and also the Intelligence Report. The ban was imposed to prevent any law and order situation that is likely to arise according to the Intelligence Report. Hence the impugned G.O. issued by the Government is legally valid and sustainable in the eye of law. The impugned order is neither violative of Article 14 nor Article 19(1)(a) of the Constitution of India. This court has called for and perused the Government record in relation to the impugned notification. From the perusal of the record it is seen that during 26th to 29th May, 2006 some representations were made by certain individuals including a Member of the State Legislative Assembly, Chairperson of the A.P. Women’s Commission and organizations like the A.P. Christian Federation, Forum for equity and justice, the A.P. Council of Churches and the A.P. Bishops’ council, to the Hon’ble Chief Minister of the State. The office of the answering respondent on 1.6.2006 received these representations. Earlier on 31.5.2006 an intelligence report was generated to the effect that the release and screening of the film may lead demonstrations and disturb the peace and tranquility in the State. The intelligence report set out the circumstances, which justify this assessment. Among the circumstances recorded in that report, is a brief analysis of Dan Brown’s novel followed by a conclusion that the film produced on the basis of the controversial story line in the novel depicts Jesus in a poor light and that might hurt the religious sentiments of Christian community. Another circumstance recorded was that Christian organizations and Muslim organizations like Majlis Bachao Tehreek, are opposing the screening of the film and demanding a ban. The several petitioners attack the impugned notification on several grounds. To summarize, the relevant and principal grounds of attack are: (A) The decision is without due application of mind, arbitrary, whimsical and irrational and constitutes an unreasonable restriction on the petitioner’s rights guaranteed under Article. 19(1)(a). The decision also falls foul of the injunctions of Article.14 of the Constitution. (B) The film having been certified for exhibition by an expert body, the Central Board of Film Certification, the State Government cannot overreach the said decision on the jejune ground that potential law and order situations might arise, based merely on representations of certain individuals and organizations. The State Government is obliged to ensure the maintenance of law and order and to preserve, protect and defend the fundamental right of speech and expression. (C) The film has been exhibited in various parts India including in the State of Kerala which has the largest Christian population in India and there has been no breach of peace in that State nor has a ban or suspension of screening been imposed on the film threat. (D) No authority of the State has seen the motion picture and formed an independent and informed opinion. Instead the State has illegally recorded the satisfaction on the basis of the representations made. This constitutes abdication of statutory responsibility under Sec.8 of the 1955 Act. The challenge to the impugned notification is required to be considered in the context of the scope and spectrum of the constitutional guarantee (to the freedom of speech and expression) against State regulation, within the framework of the Constitution. Article.19(1)(a) provides that all citizens shall have the right to freedom of speech and expression. Article. 19(2) reads: “ Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of (the sovereignty and integrity of India), the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.” The Cinematograph Act,1952 (Central Act 37/52) (the 1952 Act) enacts (Sec.4), that any person desiring to exhibit any film shall make an application to the Board (constituted by the Central Government under Sec.3) for a certificate in respect thereof and empowers the Board, after examining or having the film examined in the prescribed manner to sanction the film either with restrictions or without restrictions as specified in the provision or may refuse to sanction the film for public exhibition. Sub-section.2 of Section.4 requires the Board to provide an opportunity to the applicant for certification to represent his views on the matter. Sec.5-A(3) enacts that subject to the other provisions in the Act a certificate granted by the Board under the Section shall be valid throughout India, for a period of ten years. Sec.5-B(1) sets out the principles for guidance in certifying films. These read: A film shall not be certified 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 State, public order, decency or morality or involves defamation or contempt of Court or is likely to incite the commission of any offence. Under Section.13 of the 1952 Act, the Central Government or a local authority is empowered to suspend exhibition of films in certain cases. The provision reads as under: (1) The Lieutenant-Governor or, as the case may be, the Chief Commissioner, in respect of the (whole or any part of a Union Territory) and the District Magistrate in respect of the district within his jurisdiction, may, if he is of opinion that any film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension the film shall be deemed to be an uncertified film in the State, Part or district, as the case may be. (2) Where an order under sub-section(1) has been issued by the Chief Commissioner or a District Magistrate, as the case may be, a copy thereof, together with a statement of reasons thereof, shall forthwith be forwarded by the person making same to the Central Government, and the Central Government may either confirm or discharge the order. (3) An order made under this section shall remain in force for a period of two months from the date thereof, but the Central government may, if it is of opinion that the order should continue in force, direct that the period of suspension shall be extended by such further period as it thinks fit. In the 1995 Act—a State legislation, Section 8 confers power on the Government or the District Collector, as the case may be, to suspend the exhibition of films in certain cases. The provision reads: 8. Power of Government or District Collector to suspend exhibition of films in certain cases:-- (1) The Government in respect of the whole of the State or any part thereof, and the District Collector in respect of any area within the local limits of his jurisdiction may, if he is of opinion that a film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film, and during such suspension, no person shall exhibit such film or permit it to be exhibited in the State or in such part thereof, or in such area, as the case may be. (2) Where an order under sub-section (1) has been issued by the District Collector, a copy thereof together with a statement of reasons therefore, shall forthwith be forwarded by him to the Government and the Government may on a consideration of all the facts of the case confirm, modify or cancel the other. (3) An order made under this section shall remain in force for a period of two months from the date thereof, but the Government may, if it is of opinion that the order should continue to be in force, direct that the period of suspension shall be extended by such further period as it thinks fit. The impugned notification is issued in purported exercise of the power under Section 8 (1) of this Act. None of the writ petitions impeach the validity of Section 8 of the 1955 Act. In the context of the rival pleadings, the reliefs sought and the process leading to the impugned notification, the issue that falls for consideration is whether the impugned notification suspending the screening of the film The Da Vinci Code, constitutes an executive action inconsistent with the extent of regulatory power available under Section 8 (1) of the 1955 Act, read in the context of the fundamental right to freedom of speech and expression guaranteed under Article 19 (1)(a) and the permissible extent of restrictions that may be placed upon the right qua article 19(2). The provisions of Section 8 not having been challenged, the validity of this provision is an uncontested assumption in this lis. Nonetheless, the power of the Government to suspend the execution of the film on the formation of an opinion that it is likely to cause a breach of peace will have to be tested within the framework of Article 19(1)(a) read with 19(2). It is a settled principle of interpretation that even where a legislation employs an expression of wide import suggesting conferment of broad and facially uninstructed power, the legislative expression and the contours of the power must, the language permitting, be construed restrictively if need be and in conformity with the constitutional limits on legislative power. An interpretation that sustains the validity of the legislation must be preferred. On the aforesaid analysis, the identification of the extent of the free speech and expression rights of the producers and distributors of film The Da Vinci Code under our constitutional architecture, is compelling. The first amendment to the American Constitution was the inspiration for the freedoms guaranteed in Art.19(1)(a). The two provisions are however dissimilar. The first amendment enacts an absolute prohibition thus imposing a heavy burden on anyone transgressing the right to justify the transgression. Since the constitutional provision contained no exceptions, these had to be evolved by judicial decisions. Over a period of time, U.S. courts are seen to have limited the scope of the exceptions with increasing vigor and stringency. Under our Constitution, the limitations on the guaranteed rights (U/Art.19) are also textually provided [Art. 19(2) to (6)]. Our Constitution expressly permits Laws that could curtail the expanse of the freedom guaranteed under Art. 19(1)(a). The problem however is one essentially of construction; of identification whether a questioned law falls within Art. 19(2). Apart from the permissible areas of restrictions specified, Art.19(2) enjoins a requirement that the restriction provided by a law must be reasonable. Whether the restrictions imposed by a law, in relation to the specified circumstances for which alone restrictions could be imposed, are reasonable restrictions is eventually an area for judicial determination. I n Express News Papers Pvt. Ltd. V Union([2]) Bhagawati,J found a paucity of authority in India to guide identification of the scope and extent of the fundamental right to freedom of speech and expression. He stated: “ … the fundamental right to the freedom of speech and expression enshrined in … our Constitution is based on (the provisions in) Amendment I of the Constitution of the United States … and it would be therefore legitimate and proper to refer to those decisions of (the U.S. Sup. Ct.) to appreciate the true nature, scope and extent of this right in spite of the warning administered by this Court against use of American and other cases. ” While holding that pre-censorship of films was unsustainable in view of the First Amendment, Douglas,J in Kingsley Corp. v Regents of the University of New York([3]) pointed out : “ If we had a provision in our Constitution for ‘reasonable’ regulation of the press such as India has included in hers there would be room for argument that censorship in the interest of morality would be permissible.” However the textual distinction between our and the US Constitution notwithstanding, (in freedom of speech and expression areas) our courts have consistently referred to and relied on precedents under the U.S. 1st Amendment and from other liberal constitutional jurisdictions since these values inform