Case: Life Insurance Corporation of India Vs. Prof. Manubhai D. Shah Etc. Et

Special leave granted in SLP(C) No. 339 of 1991.These two appeals though arising out of different circumstances and concerning different parties, relate to the scope of our constitutional policy of freedom if speech and expression guaranteed by Article 19(1)(a) of the Constitution. The importance of the constitutional question prompted this Court to grant special leave to appeal under Article 136 of the Constitution. We may properly begin the discussion of this judgment by stating the factual background of the two cases in the light of which we are required to examine the scope of the constitutional liberty of speech andAppeal No.1254/80 arises out of the decision of the Guja rat High Court in Special Civil Application No. 2711 of 1979 decided by a Division Bench on 17th June, 1980. The respondent, the executive trustee of the Consumer Education &Research Center (CERC), Ahmedabad, after undertaking research into the working of the Life Insurance Corporation (LIC) published on 10th July, 1978 a study paper titled "A fraud on policy holder - a shocking story". This study paper portrayed the discriminatory practice adopted by the LIC which adversely affected the interest of a large number of policy holder. This study paper was widely circulated by the respondent. Mr. N.C. Krishnan, a member of the LIC prepared a counter of the respondents study paper and published the same as an article in, a daily newspaper, challenging the conclusions reached by the respondent in his study paper. The respondent prepared a rejoinder which was published in the same newspaper. The LIC publishes a magazine called the Yogakshema for informing its members, staff and agents about its activities. It is contention of the LIC that this magazine is an in-house magazine and is not put in the market for sale to the general public. Mr. Krishnans article which was in the nature of a counter to the respondents study paper was published in this magazine. The respondent thereupon requested the LIC to publish his rejoinder to the said article in the said magazine but his request was spurned. The respondent thereafter met the Chairman of the LIC and requested him to revise the decision and to publish the article in the magazine but to no avail. Thereupon he filed the petition contending that the refusal to publish his rejoinder in the magazine violated his fundamental right under Article 14 and 19(1)(a) of the Constitution. The High Court came to the conclusion that the LICs stand that the magazine was an in-house magazine was untenable for two reasons, namely (1) it was available to any one on payment of subscription; and (2) in invited articles for publication therein from members of the public. The High Court took the view that merely because the magazine finds it circulation among officers, employees and agents of the Corporation , it does not acquire the character of an in-house magazine since the same can be purchased by any member of the public on payment of subscription and members of the public are invited to contribute articles for publication in the said magazine. It further held that assuming that the magazine was an in-house magazine as contended by the LIC, the Corporation cannot under the guise to publication of an in-house magazine violate the fundamental right of the respondent. Taking note of the fact that the LIC was a State within the meaning of Article 12 of the Constitution and the in-house magazine was published with the aid of public funds and public money, the High Court held that in the interest of democracy and free society the magazine should be available to both, an admirer and a critic, for dissemination of information. In this view of the matter the High Court concluded that the LIC had violated the respondents fundamental right under Article 19(1)(a) of the Constitution by refusing to publish his rejoinder to Mr. Krishnans counter to his study paper. It also concluded that the refusal of the LIC was arbitrary and violative of Article 14 of the Constitution as well. The High Court, therefore, directed the LIC to publish in the immediate next issue of Yogakshema the respondents rejoinder to Mr. krishnans reply to his study paper of 10th July, 1978. This view of the Gujarat High Court is assailed by the LIC in the firster appeal the facts reveal that Shri Tapan Bose, Managing Trustee of the respondent trust, had produced a documentary film on the Bhopal Gas Disaster title "Beyond Genocide". This film was awarded the Golden Lotus, being the best non-feature film of 1987. The respondent contended that at the time of the presentation of awards the Central Minister for Information &Broadcasting had made a declaration that the award winning short films will be telecast on Doordarshan. The respondent submitted for telecast his film to Doordarshan but Doordarshan refused to telecast the same on the ground: "the contents being updated do not have relevance now for the telecast". The respondent represented to the Minister for Information &broadcasting, but to no avail. He, therefore, filed the writ petition, being Civil Writ No. 212 of 1989, challenging the refusal on the ground of violation of his fundamental right under Article 19(1)(a) of the Constitution and for a mandamus to Doordarshan to telecast the same. In the counter filed to the writ petition it was contended that although a decision was taken to arrange a fixed fortnightly telecast of award winning documentaries. It was emphasied that the parameters applied for selection of a film for national award winning documentaries. It was emphasised that the parameters applied for selection of a film for national award were not the same as applied by the Film Selection Committee of Doordarshan for selection of a film for telecast. Emphasis was laid by Doordarshan on socially relevant films which were fair and balanced and the respondents film which was previewed by a duly constituted Screening Committee was not found to meet that requirement for telecast on Doordarshan. The Ministry of Information &Broadcasting had reconsidered the matter in the light of the respondents representation but did not see any reason to depart from the view taken by the Screening Committee. The Screening Committee had founded its decision on the accepted norms for display of the documentary films on Doordarshan and since the respondents film did not satisfy the norms for the reason that it lacked moderation and restraint in judging things and expressing opinions, it was found not suitable for telecast. It also took into consideration the fact that while most of the claims for compensation for the victims of Bhopal Disaster were sub Judaic and political parties were raising certain issue, it was inexpedient and unwise to telecast the film. It was also feared that it would only end in further vitiating the atmosphere and will serve no social purpose. The High Court came to the conclusion that the respondent s right under Article 19(1)(a) of the Constitution obligated Doordarshan to telecast the film since the guidelines or norms on which the refusal was based were purely executive in character and not law within the meaning of Article 19(2) of the Constitution. It, therefore, came to the conclusion that no restriction could be placed on the fundamental right guaranteed by Article 19(1)(a) of the Constitution save and except by law permitted by Article 19(2) and not by executive or non- statutory guidelines on the basis of which Doordarshan had refused to telecast the film . It took the view that these norms were for internal guidance and cannot interfere with the fundamental right guaranteed by Article 19(1)(a) of the constitution. It, therefore, directed Doordarshan to telecast the film "Beyond Genocide" at a time and date convenient to it keeping in view the public interest and on such terms and conditions as it would like to impose in accordance with law. It is against this direction of the High Court that the second the second appeal is preferred.

Court's reasoning:
From the above resume of the case law it is evident that this Court has always placed a broad interpretation on the value and content of Article 19(1)(a), making it subject only to the restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or suffocate this freedom have always been firmly repelled. More so when public authorities have betrayed autocraticsee force in this submission. By refusing to print and publish the rejoinder the LIC had violated the respondents fundamental right. A wrong doer cannot be heard to say that its persistent refusal to print and publish the article must yield the desired result, namely to frustrate the respondent. The Court must be careful to see that it does not, even unwittingly, aid the effort to defeat a partys right Besides, if the respondent thinks that the issued is live and relevant and desires its publication, we thing we must accept his assessment. However, in order that the reader known and appreciates why the rejoinder has appeared after such long years we direct that the LIC will, while publishing the rejoinder as directed by the High Court, print an explanation and an apology for the delay. With this modification, the LICs appeal must fail.That takes us to the appeal involving Doordarshans refusal to telecast the documentary "Beyond Genocide" based on the Bhopal Gas Disaster. There is no dispute that this film own the Golden Lotus award as the best non-feature film of 1987. Yet, as the judgment of the High Court reveals, Doordarshan refused to telecast it on the ground that "the contents being outdated do not have relevance now for the telecast". It was emphasised that since the parameters applied for selection of a film for national award were different from those applied by the Film Selection Commit tee of Doordarshan when it comes to selecting a film for telecast, the mere fact that a film has won a national award is not sufficient for all national award winning films are not ipso facto fit for telecast on television. It was said that unless a film is socially relevant and fair and balanced it is not cleared for telecast. The film in question did not satisfy this broad norm since it was found lacking in moderation and restraint and hence it was not cleared for telecast . Lastly it was said that since claims for compensation of the victims of the tragedy were pending and political parties were raising various issues, it was though inexpedient to screen the film. It is, however, admitted in paragraph 2 of the Special Leave Petition: "The documentary is an appraisal of what exactly transpired in Bhopal on the date the gas leak occurred". Admittedly the said film was granted a U certificate by the Central Board of Film Certification under section 5A of the Cinematography Act,the above discussion it follows that unquestionably the respondent has a right to convey his perception of the gas disaster in Bhopal through the documentary film prepared by him. This film not only won the Golden Lotus award but was also granted thecertificate by the censors. Even according to the petitioners `the documentary is an appraisal of what exactly transpired in Bhopal on the date the gas leak occurred. The petitioners, therefore, concede that the film faithfully brings out the events that took place at Bhopal on that fateful night. Therefore, the respondent cannot be accused of having distorted the events subsequent to the disaster. How than can it be alleged that it is not fair and balanced or lacks in moderation and restraint? It is nowhere stated which part of the film lacks moderation and/or restraint nor is it shown ho w the film can be described as not fair and balanced. Merely because it is critical of the State Government, perhaps because of its incapacity to cope with unprecedented situation, is no reason to deny selection and publication of the film. So also pendency of claims for compensation does not render the matter subjudice so as to shut out the entire film from the community. In fact the community was keen to know what actually has happened, what is happening, what remedial measures the State Authorities are taking and what are the likely consequences of the gas leak. To bring out the inadequacy of the State effort or the indifference of the officers, etc., cannot amount to an attack on any political party if the criticism is genuine and objective and made in good faith. If the norms for appraisal was the same as applied by the censors while granting the `U certificate, it is difficult to understand how Doordarshan could refuse to exhibit it. It is not that it was not sent for being telecast soon after the disaster that one could say that it is outdated or has lost relevance. It is even today of relevance and the press has been writing about it periodically. The learned Additional Solicitor General was not able to point out how it could be said that the film was not consistent with accepted norms setout earlier. Doordarshan being a State controlled agency funded by public funds could not have denied access to the screen to the respondent except on valid grounds.