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PETITIONER: LIFE INSURANCE CORPN. OF INDIA AND ORS. ETC.

       Vs.

RESPONDENT: PROF. MANUBHAI D. SHAH ETC. ETC.

DATE OF JUDGMENT22/07/1992

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) PUNCHHI, M.M.

CITATION:  1993 AIR  171            1992 SCR  (3) 595  1992 SCC  (3) 637        JT 1992 (4)   181  1992 SCALE  (2)60

ACT:      Constitution  of  India: Part  III-Fundamental  Rights- Article 19(1)(a) & 19(2).      Freedom  of  Speech  and  Expression-Scope  of-Includes freedom to circulate and propagate views through electronics media  subject to reasonable restrictions-Right  extends  to use  the media to answer the criticism levelled against  the propagated view.      Publication of a research paper by Executive Trustee of Consumer  Education  and Research  Centre-Paper  criticising premium policy adopted by Life Insurance Corporation-Counter prepared by a member of LIC as well as rejoinder prepared by Executive   Trustee  Published  in  a   newspaper-LIC   also publishing  its  counter  in  its  own  magazine-Refusal  to publish Executive Trustee’s rejoinder in its mazazine on the ground  that it was In - House magazine-Held refusal by  LIC to  publish  rejoinder  in its magazine  was  arbitrary  and violative of Article 14 and 19(1)(a).      Freedom  of  expression  through  movies-Film-Right  to telecast  on television-Guidelines for  film  certification- Documentary   film  on  Bhopal  Gas  Disaster-Film   awarded national  award  and  granted  ‘U’  Certificate-Refusal   by Doordarshan to telecast the film-Held film maker has a right to  take  cast  the  bilm-Refusal  to  telecast  should   be justified by law under Article 19(2)-Onus lies on the  party who  refuses  to  telecast to show that the  film  does  not conform  to requirements of law-Grounds of refusal held  not justified-Doordarshan  being State controlled agency  cannot refuse telecast of film except on valid grounds.      Article 12-State-Life Insurance Corporation in State.      Constitution-Interpretation  of-Provisions  should   be construed  broadly  unless the context  otherwise  requires- Scope of provisions, particularly Fundamental Rights  should not be cut down by restricted approach.                                                        596      Doctrine of Fairness.      Doctrine of Prior Restraint.      Cinematograph Act, 1952: Sections 5A-5B.

HEADNOTE:      The  respondent, the executive trustee of the  Consumer

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Education  &  Research Centre Ahmedabad,  after  undertaking research into the working of the Life Insurance  Corporation (LIC) published and circulated a study paper titled "A fraud on   policy   holders-a  shocking  story"   portraying   the discriminatory  practice adopted by the LIC which  adversely affected  the  interest  of  a  large  number  holders.  The underlying  idea was to point out that unduly high  premiums were charged by the LIC from those taking out life insurance policies  thereby denying access to insurance coverage to  a vast  majority of people who cannot afford to pay  the  high premiums.  A  member of the LIC prepared a  counter  to  the respondent’s  study  paper  and published  the  same  as  an article titled ‘LIC and its policy holders’ in the  "Hindu", a  daily newspaper, challenging the conclusions  reached  by the respondent in his study paper. The respondent prepared a rejoinder  ‘Raw  deal  for policy  Holders’  which  too  was published in the same newspaper.      Thereafter,  the  LIC published  its  member’s  article which  was  in the nature of a counter to  the  respondent’s study paper in its magazine ‘Yogakshema’. On the  respondent learning  about the same, he requested that in fairness  his rejoinder  which was already published in the  Hindu  should also be published in the said magazine to present a complete picture  to the reader. The LIC refused his request  on  the ground   that  their  magazine  was  an  in-house   magazine circulated  amongst  subscribers who  were  policy  holders, officers, employees and agents of the Corporation and it  is not put up in the market for sale to the general public.      The  respondent  filed a writ petition in  the  Gujarat High Court which came to the conclusion that the LIC’s stand that  the  magazine was an in-house magazine  was  untenable because   it   was  available  to  anyone  on   payment   of subscription;  and  it  invited  articles  for   publication therein  from  members  of the  public.  Assuming  that  the magazine was an in-house magazine the corporation, which was a  State within the meaning of Article 12, cannot under  the guise  of  publication of an in-house magazine  violate  the fundamental  right of the respondent. Accordingly, the  High Court held                                                        597 the  refusal  by LIC to publish respondent’s  rejoinder  was arbitrary and violative of Article 14 and 19(1)(a).  Against the decision of the High Court this appeal is filed.      In  the  connected  appeal the  respondent  produced  a documentary  film on the Bhopal Gas Disaster titled  "Beyond Genocide"  which  was  awarded the Golden Lotus,  being  the best   non-feature  film  of  1987.  At  the  time  of   the presentation of awards the Central Minister for  Information JUDGMENT: short   films  would  be  telecast  on   Doordarshan.    The respondent  submitted his film to Doordarshan  for  telecast but Doordarshan refused to telecast the same on the  grounds that  (i)  the  film  was out dated (ii)  it  had  lost  its relevance  (iii) it lacked moderation and restraint (iv)  it was not fair and balanced (v) political parties have  raised various  issues concerning the tragedy and (vi)  claims  for compensation by victims were sub-judice.      The  respondent filed a writ petition  challenging  the refusal  to telecast his film 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.  The  Union of India contested  the  petition  by stating  that  although a decision was taken  to  arrange  a fixed fortnigtly telecast of award winning documentaries, no decision  was taken to telecast all national  award  winning

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documentaries; 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; and the respondent’s film  which  was previewed by a duly constituted Screening Committee was  not found to meet the requirements for telecast on  Doordarshan. The  High Court held 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);  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 executive in character and not law within the  meaning of  Article  19(2)  of  the  Constitution.  Accordingly,  it 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.      In   appeal  to  this  Court  it  was   contended   for Doordarshan, (i) that                                                        598 sub-section (2) of Section 5B of the Cinematograph Act, 1952 empowers the Central Government to issue directions  setting out the principles which shall guide the authority competent to grant certificates under the Act in sanctioning films for public  exhibition  and  since  the  exemption  granted   to Doordarshan  under Section 9 of the Act from the  provisions relating to certification of films in Part II of the Act and Rules  made thereunder by notification dated  16th  October, 1984  is  subject  to  the  condition  that  while  clearing programmes  for telecast Doordarshan shall keep in view  the film   certification  guidelines  issued  by   the   Central Government  under  Section  5B of the  Act,  the  guidelines clearly  have  statutory favour and would,  therefore,  fall within  the  protective umbrella of Article  19(2);(ii)  the High Court completely misdirected itself in not appreciating that these norms were fixed keeping  in mind the requirement of  Section 5B of the Act which section was consistent  with Article  19(2),  therefore  the  High  Court  was  wrong  in brushing   them   aside  as  mere   departmental   executive directions.      Dismissing the appeals, this Court      HELD: 1. A constitutional Provision is never static, it is ever evolving and ever changing and, therefore, does  not admit  of  a narrow, pedantic or syllogistic  approach.  The Constitution  makers  employed a  broad  pharaseology  while drafting the fundamental rights so that they may be able  to cater  to  the  needs  of  a  changing  society.  Therefore, constitutional provisions in general and fundamental  rights in  particular must be broadly construed unless the  context otherwise requires. The scope and ambit of such  provisions, in particular the fundamental rights, should not be cut down by too astute or too restricted an approach. [606E, 607E-F]      Sakal Paper (P) (Ltd. v. Union of India [1962] 3 S.C.R. 842 A.I.R. 1962 S.C. 305, referred to.      Dennis v. United States, 341 U.S. 494; Joseph  Burstyn, Inc. v. Wilson, 343 U.S. 495 and Mutual Film Corporation  v. Industrial Commission of Ohio, 236 U.S. 230; referred to.      2.    The  words  ‘freedom of speech and  expression  ’ must  be  broadly  construed  to  include  the  freedom   to circulate  one’s  views by words of mouth or in  writing  or through audio-visual instrumentalities. therefore,  includes it  the  right propagati one’s the views through  the  print media or                                                        599

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through  any other communication channel e.g. the radio  and the  television.  The print media, the radio  and  the  tiny screen  play the role of public educators, so vital  to  the growth  of a healthy democracy. Every citizen of  this  free country,  therefore, has the right to air his or  her  views through the printing and/or the electronic media subject  of course  to  permissible restrictions imposed  under  Article 19(2) of the Constitution. The right extends to the  citizen being  permitted  to use the media to answer  the  criticism levelled  against the view propagated by him. [607 G-H,  608 A,E]      Romesh  Tappar  v. The State of Madras,  [1950]  S.C.R. 495;  Sakal  Papers  (P) Ltd. v. Union of  India,  [1962]  3 S.C.R.  842-A.I.R. 1962 S.C. 305; Indian Express  Newspapers (Bombay) Pvt. Ltd. & Ors. etc. etc. v. Union of India & Ors. etc. etc., [1985] 2 S.C.R. 287; Odyssey Communications  Pvt. Ltd.  v. Lokvidayan Sanghatana & Ors., [1988] 3  S.C.C.  410 and  S. Rangarajan v. P. Jagjivan Ram, [1989] 2  S.C.C.  574, referred to.      3.  No serious exception can be taken to  the  approach which  commended  to  the High Court.  The LIC  is  a  State within the meaning of Article 12 of the Constitution.  It is created under an Act, namely, the Life Insurance Corporation Act,  1956,  which requires that it should function  in  the best   interest  of  the  community.   The   community   is, therefore, entitled to know whether or not this  requirement of the Statute is being satisfied in the functioning of  the LIC.   The respondent’s effort in preparing the study  paper was to bring to the notice of the community that the LIC had strayed from its path by pointing out that its premium rates were  unduly high when they could be low if the LIC  avoided wasteful  indulgences.   The endeavor was to  enlighten  the community   of  the  drawbacks  and  shortcomings   of   the corporation and to pin-point the areas where improvement was needed  and  was possible.  By denying  information  to  the consumers  as well as other subscribers that LIC  cannot  be said  to  be acting in the best interest of  the  community. [612A, E-H, 613 A,D]      Sukhdev Singh & Ors. v. Bhagatram Sardar Singh,  [1975] 1 S.C.C. 421, relied on.      4.  By refusing to print and publish the rejoinder  the LIC  had violated the respondent’s fundamental  right.   The rejoinder to their acticle is not in any manner  prejudicial to the members of the community nor it is based on imaginery or  concocted  material.  It does not contain  any  material which  can  be branded as offensive, in the  sense  that  it would fall within anyone                                                        600 of the restrictive clauses of Article 19(2).  That being  so on the fairness doctrine the LIC was under an obligation  to publish the rejoinder since it had published its counter  to the study paper. [614-C, 613-D, 612A, 613-E]      5.  The LIC’ s refusal to publish the rejoinder in  its magazine financed from public funds is an attitude which can be described as both unfair and unreasonable; unfair because fairness  demanded that both view points were placed  before the  readers,  however, limited be their number,  to  enable them to draw their own conclusions and unreasonable  because there  was  no logic or proper  justification  for  refusing publication.   A  monopolistic state  instrumentality  which survives  on public funds cannot act in an arbitrary  manner on  the specious plea that the magazine is an in- house  one and  it is a matter of its exclusive privilege to  print  or refuse to print the rejoinder. [613 B-D]      6.  A  wrong  doer  cannot be heard  to  say  that  its

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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  party’s right.   However,  in  order  that  the  reader  knows   and appreciates  why the rejoinder has appeared after such  long years it is directed that the LIC will, while publishing the rejoinder print an explanation and an apology for the delay. [614 C-D]      7.  Speech is God’s gift to mankind.  Through Speech  a human being conveys his thoughts, sentiments and feeling  to others.  Freedom of speech and expression is thus a  natural right  which  a  human  being acquires  on  birth.   It  is, therefore,  a basic human right.  Thus freedom to air  one’s views is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell  to democracy and would help usher in  autocracy or dictatorship.  Efforts by intolerant authorities to  curb or suffocate this freedom have always been firmly  repelled. More  so  when public authorities have  betrayed  autocratic tendencies. [605G, 608-B, 611E]      Universal Declaration of Human Rights (1948),  referred to.      8.  The  feedom  conferred  on  a  citizen  by  Article 19(1)(a) includes the freedom to communicate one’s ideas  or thoughts  through  a  newspaper,  a  magazine  or  a  movie. Although  movie  enjoys that freedom it must  be  remembered that movie is a powerful mode of communication and has the                                                        601 capacity  to  make  a profound impact on the  minds  of  the viewers  and it is, therefore, essential to ensure that  the meassage it conveys is not harmful to the society or even  a section  of  the society.  Censorship  by  prior  restraint, therefore, seems justified for the protection of the society from  the ill-effects that a motion picture may  produce  if unrestricted  exhibition  is allowed.   Censorship  is  thus permitted to protect social interests enumerated in  Article 19(2)  and  section 5B of the cinematograph Act.   But  such censorship  must be reasonable and must answer the  test  of Article 14 of the Constitution. [623 E-G]      9.  Once  it  is recognised that  a  film-maker  has  a fundamental  right  under Article 19(1)(a)  to  exhibit  his film, the party which claims that it was entitled to  refuse enforcement  of  this  right by virtue  of  law  made  under Article 19(2), the onus lies on that party to show that  the film did not conform to the requirements of that law, in the present case the guidelines relied upon. [620 D-E]      10. The respondent had a right to convey his perception of  the gas disaster in Bhopal through the documentary  film prepared  by  him.  The film not only won the  Golden  Lotus award  but  was  also granted the  ’U’  Certificate  by  the censor.   It is an appraisal of what exactly  transpired  in Bhopal  on the date the gas leak occurred.   Therefore,  the respondent cannot be accused of having distorted the  events subsequent to the disaster. [624 E-F]      Merely  because it is critical of the State  Government is  no reason to deny selection and exhibition of the  film. So also pendency of claims for compensation does not  render the matter sub-judice so as to shut out the entire film form the community.  In fact the community was keen to know  what actually  had  happened, what is  happening,  what  remedial measures  the State authorities are taking an what  are  the likely  consequences  of  the gas leak.  To  bring  out  the inadequacy  of the State effort or the indifference  of  the officer,  etc,. cannot amount to an attack on any  political

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party its the criticism is genuine and objective and made in good  faith.   If  the norm 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. [624 G-H, 625 A-B]                                                        602      In  the circumstances it cannot be said that  the  film was  not  consistent with the accepted  norms.   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. [625-C]      K.A. Abbas v. The Union of India, [1971] 2 S.C.R.  446; Ramesh  v.  The Union of India, [1988] 1 S.C.C. 668  and  S. Rangarajan  v. P. Jagivan Ram, [1989] 2 S.C.C.  574,  relied on.      New  York Times Company v. The Union States,  403  U.S. 713, referred to.

&      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1254 of 1990.      From  the  Judgment  and Order  dated  17.6.80  of  the Gujarat High Court in Special Civil Application No. 2711  of 1979.                WITH      Civil Appeal No. 2643 of 1992.      From the Judgment and Order dated 27.9.90 of the  Delhi High Court in Civil Writ Petition No. 212 of 1989.      K.T.S.  Tulsi, Additional Solicitor General, P.P.  Rao, Kailash  Vasdev,  Ms. Alpana Kirpal, A.  Subba  Rao,  Hemant Sharma and C.V.S. Rao for the Appellants.      P.H. Parekh, B.K. Brar, Ashok Aggarwal and P.D.  Sharma for the Respondent.      The Judgment of the Court was delivered by      AHMADI,  J. 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                                                        603 factual background of the two cases in the light of which we are  required  to examine the scope  of  the  constitutional liberty of speech and expression.      Civil  Appeal No.1254/80 arises out of the decision  of the Gujarat High Court in Special Civil Application No. 2711 of 1979 decided by a Division Bench on 17th June, 1980.  The respondent, the executive trustee of the Consumer  Education &  Research  Centre  (CERC),  Ahmedabad,  after  undertaking research into the working of the Life Insurance  Corporation (LIC)  published on 10th July, 1978 a study paper titled  "A fraud  on  policy holder - a shocking  story".   This  study paper  portrayed the discriminatory practice adopted by  the LIC which adversely affected the interest of a large  number of policy holder.  This study paper was widely circulated by the  respondent.   Mr. N.C. Krishnan, a member  of  the  LIC prepared  a  counter  of the respondent’s  study  paper  and

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published  the  same as an article in the "Hindu",  a  daily newspaper,  challenging  the  conclusions  reached  by   the respondent  in his study paper.  The respondent  prepared  a rejoinder  which was published in the same  newspaper.   The LIC  publishes  a  magazine  called  the  ’Yogakshema’   for informing   its   members,  staff  and  agents   about   its 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. Krishnan’s  article  which was  in  the nature of a counter to the  respondent’s  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 LIC’s stand that  the magazine  was  an in-house magazine was  untenable  for  two reasons, namely (1) it was available to anyone 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                                                        604 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 respondent’s fundamental right under Article 19(1)(a) of the Constitution  by  refusing to publish his rejoinder  to  Mr. Krishnan’s  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. krishnan’s reply to his study paper of 10th July, 1978. This view of the Gujarat High Court is assailed by the LIC in the first appeal.      In  the order appeal the facts reveal that  Shri  Tapan Bose, Managing Trustee of the respondent trust, had produced a documentary film on the Bhopal Gas Disaster title  "Beyond Genocide".   This film was awarded the Golden  Lotus,  being the best non-feature film of 1987.  The respondent contended that  at the time of the presentation of awards the  Central Minister   for  Information  &  Broadcasting  had   made   a declaration  that  the  award winning short  films  will  be telecast  on  Doordarshan.   The  respondent  submitted  for telecast his film to Doordarshan but Doordarshan refused  to telecast  the  same  on the ground  :  "the  contents  being updated  do not have relevance now for the  telecast".   The

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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 respondent’s film which was                                                        605 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 respondent’s  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 respondent’s  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-judice 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   repondent’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.      Speech is God’s gift to mankind. Through speech a human being  conveys  his  thoughts, sentiments  and  feelings  to others.  Freedom of speech and expression is thus a  natural right  which  a  human  being acquires  on  birth.   It  is, therefore, a basic human right.  "Everyone has the right  to freedom  of  opinion  and  expression;  the  right  includes freedom  to hold opinions without interference and  to  seek and  receive  and impart information and ideas  through  any media  and regardless of frontiers" proclaims the  Universal Declaration  of  Human Rights (1948).  The People  of  India

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declared in the Preamble of the Constitution which they gave into them-                                                        606 selves  their resolve to secure to all citizens  liberty  of thought  and  expression.   This  resolve  is  reflected  in Article 19(1)(a) which is one of the articles found in  Part III  of  the Constitution which enumerates  the  Fundamental Rights.  That article reads as under :          "19(1).  All citizens shall have the right-          (a) to freedom of speech and expression;"      Article   19(2)  which  has  relevance  may   also   be reproduced:          "19(2).  Nothing sub-clause (a) of clause (1) shall          affect  the  operation  of  any  existing  law,  or          prevent  the State from making any law, insofar  as          such  law  impose 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."      A constitutional provision is never static, it is  over evolving and ever changing and, therefore, does not admit of a  narrow,  pedantic or syllogistic approach.  If  such  ;an approach had been adopted by the American Courts, the  First Amendment-(1791)- "Congress shall make no law abridging  the freedom  of  speech,  or of the press"  -  would  have  been restricted   in  its  application  to  the  situation   then obtaining  and  would  not  have  catered  to  the   changed situation  arising on account of the transformation  of  the print media.  It was the broad approach adopted by the court which  enabled  them  to  chart out  the  contours  of  ever expanding  notions  of press freedom.  In Dennis  v.  United States, 341 U.S. 494, Justice Frankfurtur observed :          "...The  language of the First Amendment is  to  be          read not as barren words found in a dictionary  but          as  symbols of historic experience  illuminated  by          the presuppositions of those who employed them."      Adopting  this  approach  in Joseph  Burstyn.  Inc.  v. Wilson   343  U.S.  495  the  Court  rejected  its   earlier determination to the contrary in Mutual Film Corporation  v. Industrial  Commission of Ohio, 236 U.S. 230  and  concluded that  expression through motion pictures is included  within the  protection  of  the First Amendment.   The  Court  thus expanded the reach of the First                                                        607 Amendment by placing a liberal construction on the  language of  that provision.  It will thus be seen that the  American Supreme  Court has always placed a broad  interpretation  on the  constitutional provisions for the obvious  reason  that the constitution has to serve the needs of an ever  changing society.      The same trend is discernible from the decisions of the Indian Courts also.  It must be appreciated that the  Indian Constitution has separately enshrined the fundamental rights in  Part  III of the Constitution since they  represent  the basic  values which the People of India cherished when  they gave unto themselves the constitution for free India.   That was  with a view to ensuring that their honour, dignity  and self  respect  will be protected in free  India.   They  had learnt  a  bitter  lesson from the  behaviour  of  those  in authority  during the colonial rule.  They were,  therefore, not prepared to leave anything to chance.  They,  therefore,

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considered it of importance to protect specific basic  human rights by incorporating a Bill of Rights in the Constitution in the form of Fundamental Rights.  These fundamental rights were  intended to serve generation after  generation.   They had to be stated in broad terms leaving scope for  expansion by  courts.   Such  an intention must  be  ascribed  to  the Constitution   makers   since  they  had   themselves   made provisions  in  the  Constitution to bring  about  a  socio- economic transformation.  That being so, it is reasonable to infer   that  the  Constitution  makers  employed  a   broad phraseology  while drafting the fundamental rights  so  that they  may  be  able  to cater to the  needs  of  a  changing society.   It,  therefore,  does  not  need  any   elaborate argument  to  uphold  the  contention  that   constitutional provisions in general and fundamental rights in   particular must  be  broadly  construed unless  the  context  otherwise requires.  It seems well settled from the decisions referred to at the Bar that constitutional provisions must receive  a broad  interpretation  and  the  scope  and  ambit  of  such provisions in particular the fundamental rights, should  not be  cut  down by too astute or too restricted  an  approach. See  Sakal Papers (P) Ltd. v. Union of India, [1962]  3  SCR 842 = AIR 1962 SC 305.      The  words  ’freedom of speech  and  expression’  must, therefore,  be broadly construed to include the  freedom  to circulate  one’s  views by words of mouth or in  writing  or through   audio-visual  instrumentalities.  It,   therefore, includes  the  right to propagate one’s  views  through  the print media or through any other communication channel  e.g. the  radio and the television.  Every citizen of  this  free country, therefore, has the right to air                                                        608 his or her views through the printing and/or the  electronic media subject of course to permissible restrictions  imposed under  Article 19(2) of the Constitution.  The print  media, the  radio  and  the tiny screen play  the  role  of  public educators,  so vital to the growth of a  healthy  democracy. Freedom to air one’s view is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would  help usher  in autocracy or dictatorship.  It cannot be  gainsaid that modern communication mediums advance public interest by informing  the  public of the events and  developments  that have  taken place and thereby educating the voters,  a  role considered  significant  for the vibrant  functioning  of  a democracy.   Therefore,  in  any  set  up,  more  so  in   a democratic set up like ours, dissemination of news and views for  popular consumption is a must and any attempt  to  deny the  same  must be frowned upon unless it falls  within  the mischief  of Article 19(2) of the Constitution.  It  follows that  a  citizen for propagation of his or her ideas  has  a right  to publish for circulation his views in  periodicals, magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make considerable impact  on the minds of the readers and viewers and are known to  mould public opinion on vital issues of national importance.  Once it  is  conceded,  and it cannot indeed  be  disputed,  that freedom  of  speech  and  expression  includes  freedom   of circulation and propagations of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism levelled against the  view propagated  by  him.  Every free citizen  has  an  undoubted right  to lay what sentiments he pleases before the  public; to  forbit this, except to the extent permitted  by  Article

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19(2),  would  be an inroad on his  freedom.   This  freedom must,  however,  be exercised with circumspection  and  care must be taken not to trench on the rights of other  citizens or  to  jeopardise  public interest.  It  is  manifest  from Article  19(2) that the right conferred by Article  19(1)(a) is  subject to imposition of reasonable restrictions in  the interest  of,  amongst  others,  public  order,  decency  or morality  or in relation to defamation or incitement  to  an offence.    It  is,  therefore,  obvious  that  subject   to reasonable restrictions placed under Article 19(2) a citizen has  a right a publish, circulate and disseminate his  views and  any  attempt to thwart or deny the  same  would  offend Article 19(1)(a).      We  may now refer to the case law on the  subject.   In Romesh  Tappar v. The State of Madras, [1950] SCR  495  this Court held that the freedom                                                        609 of speech and expression includes freedom of propagation  of ideas  and  this  freedom  is  ensured  by  the  freedom  of circulation.   It  pointed out that freedom  of  speech  and expression   are   the   foundation   of   all    democratic organisations  and are essential for the proper  functioning of the processes of democracy.  This view was reiterated  in Sakal  Papers Pvt. Ltd. (supra) wherein this Court  observed that  the  freedom of speech and  expression  guaranteed  by Article  19(1)(a)  includes the freedom of the  Press.   For propagating  his  ideas a citizen had the right  to  publish them,  to disseminate them and to circulate them, either  by word  of mouth or by writing.  In Indian Express  Newspapers (Bombay) Pvt. Ltd. & Ors. etc. etc. v. Union of India & Ors. etc.  etc., [1985] 2 SCR 287 this Court after  pointing  out that  communication needs in a democratic society should  be met  be the extention of specific rights e.g., the right  to be informed, the right to inform, the right to privacy,  the right to participate in public communications, the right  to communicate,  etc.,  proceeded  to observe at  page  316  as follow :          "In  today’s  free world freedom of  Press  is  the          heart  of  social and  political  intercourse.  The          press  has  now  assumed the  role  of  the  public          educator  making  formal and non  formal  education          possible   in  large  scale  particularly  in   the          developing  world where television and other  kinds          of modern communication are not still available for          all sections of society.  The purpose of the  press          is  to  advance the public interest  by  publishing          facts  and  opinions  without  which  a  democratic          electorate   cannot  make  responsible   judgments.          Newspaper being surveyors of news and views  having          a bearing on public administration very often carry          material   which   would  not   be   palatable   to          Governments and other authorities.  The authors  of          the  article which are published in the  newspapers          have to be critical of the action of the Government          in  order to expose its weaknesses.  Such  articles          tend  to  become an irritant or even  a  threat  to          power."      This Court pointed out that the constitutions guarantee of  the freedom of speech and expression is not so much  for the  benefit  of the press as it is for the benefit  of  the public.   The  people  have a right to be  informed  of  the developments that take place in a democratic process and the press plays a vital role in disseminating this  information. Neither  the  Government  nor  any  instrumentality  of  the Government  or  any public sector undertaking run  with  the

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help of public funds can shy away from                                                        610 articles  which  expose weaknesses in  its  functioning  and which  is  given  cases  pose a threat  to  their  power  by attempting   to   create  obstacles   in   the   information percolating  to  the members of the community.   In  Odyssey Communications  Pvt.  Ltd. v. Lokvidayan  Sanghtana &  Ors., [1988] 3 SCC 410 a public interest litigation was  commenced under  Article  226  of the  constitution  to  restrain  the authorities from telecasting the serial ’Honi Anhony’ on the plea  that it was likely to spread false and  blind  beliefs and  superstition  amongst the members of the  public.   The high   Court  by  an  interim  injunction   restrained   the authorities  from  telecasting  the  serial  which  led  the producer thereof to approach this Court under Article 136 of the Constitution.  This Court while allowing the appeal held that  the  right  of  a citizen  to  exhibit  films  on  the Doordarshan  subject  to  the  conditions  imposed  by   the Doordarshan being a part of the fundamental right of freedom of  expression could be curtailed only  under  circumstances set out in Article 19(2) and in no other manner.  The  right to exhibit the film was similar to the right of a citizen to publish   his  views  through  any  other  media   such   as newspapers,  magazines, advertisement hoardings, etc.   More recently  in S. Rangarajan v. P. Jagjivan Ram, [1989] 2  SCC 574  this Court was required to consider if the Madras  High Court  was justified in revoking the ’U’ certificate  issued to a Tamil Film "Ore Oru Gramathile" for public  exhibition. The  fundamental point urged before this Court was based  on the freedom enshrined in Article 19(1)(a).  This court after pointing  out  the difference in language between  the  U.S. First  Amendment clause and Article 19(1)(a),  proceeded  to observe in paragraph 10 as under :          "Movie doubtless enjoys the guarantee under Article          19(1)(a)  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          aerial  senses.  The focussing 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 immediate influence on, and appeal for          everyone  who sees it.  In view of  the  scientific          improvements in photography and                                                        611          production the present movie is a powerful means of          communication."      This  Court emphasised that 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.  Concluding  the  discussion this Court observed in paragraph 53 as under :          "We end here as we began on this topic.  Freedom of          expression which is legitimate and constitutionally          protected,   cannot  be  held  to  ransom   by   an          intolerant   group  of  people.   The   fundamental          freedom  under Article 19(1)(a) can  be  reasonably

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        restricted  only  for  the  purposes  mentioned  in          Article 19(2) and the restriction must be justified          on the anvil of necessity and not the quicksand  of          convenience  or  expediency.   Open  criticism   of          government policies and operations is not a  ground          for  restricting  expression.   We  must   practice          tolerance  to the views of others.  Intolerance  is          as  much  dangerous to democracy as to  the  person          himself."      From  the  above resume of the case law it  is  evident that this Court has always placed a broad interpretation  on the value and content of Article 19(1)(a), making it subject only  to the restrictions permissible under  Article  19(2). Efforts by intolerant authorities to curb or suffocate  this freedom  have  always been firmly repelled.   More  so  when public authorities have betrayed autocratic tendencies.      The  question  then is whether the  respondent  of  the first appeal could as a matter of right insist that the  LIC print his rejoinder in their magazine.  The LIC denied  this right  on  the ground that their magazine  was  an  in-house magazine  circulated  amongst subscribers  who  were  policy holders,  officer, employees and agents of the  corporation. The  High Court rejected this contention on two  grounds  in the main, viz., (i) it is available to anyone on payment  of subscription  and (ii) members of the public are invited  to contribute articles for publication.  Even on the assumption that  it is an in-housing magazine the High  Court  observed ’under the pretext and guise of publishing a house magazine, the Corporation cannot violate the fundamental rights of the petitioner  if he has any’.  According to the High  Court  a house  magazine  cannot  claim  any  privilege  against  the fundamental                                                        612 rights  of a citizen.  No serious exception can be taken  to this  approach  which commended to the High  Court.  In  the first place it must be remembered that it is not the case of the  LIC  that  the respondent’s study  paper  contains  any material  which  can be branded as offensive, in  the  sense that it would fall within anyone of the restrictive  clauses of  Article 19(2).  The study paper is a  research  document containing   statistical   information   to   support    the conclusions  reached by the author.  The underlying idea  is to  point out that unduly high premiums are charged  by  the LIC  from those taking out life insurance  policies  thereby denying  access to insurance coverage to a vast majority  of people  who  cannot afford to pay the  high  premiums.   The forwarding letter of 10th July, 1978 would show that  copies of  the  study  paper  were circulated  to  a  few  informed citizens with a request to disseminate the contents  thereof through  articles, speeches, etc, Mr. N.C. Krishnan wrote  a counter  ’LIC and its policy holders’ which appeared in  the Hindu  of  6th  November,  1978.   This  article  begins  by adverting  to the study paper circulated by the  respondent. The  respondent  prepared a rejoinder ’Raw deal  for  Policy holders’  which  too  was  published in  the  Hindu  of  4th December,  1978.   The LIC then printed  and  published  the article of Mr. Krishnan in its magazine Yogakshema (December 1978 issue).  On the respondent learning about the same,  he requested  that in fairness his rejoinder which was  already published in the Hindu should also be published in the  said magazine  to present a complete picture to the reader.   The LIC  refused  to  accede  to this  request  and  hence  this litigation.      There is no dispute that the LIC is a State within  the meaning  of  Article 12 of the  Constitution,  vide  Sukhdev

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Singh & others v. Bhagatram Sardar Singh, [1975] 1 SCC  421. It  is  created  under an Act, namely,  the  Life  Insurance Corporation  Act,  1956, and is charged with  the  duty  ’to carry  on  Life Insurance business, whether  in  or  outside India’.  It is further charged with the duty to so  exercise its  powers under the Act as ’to secure that life  insurance business   is  developed  to  the  best  advantage  of   the community’  [Section 6(1)].  It is, therefore, obvious  that the LIC must function in the best interest of the community. The community is, therefore, entitled to know whether or not this  requirement of the statute is being satisfied  in  the functioning   of  the  LIC.   The  respondent’s  effort   in preparing the study paper was to bring to the notice of  the community that the LIC had strayed from its path by pointing out  that premium rates were unduly high when they could  be low if the LIC avoided wasteful indulgences.  The  endeavour was  to  enlighten  the  community  of  the  drawbacks   and shortcomings                                                        613 of  the  corporation  and  to  pin-point  the  areas   where improvement  was  needed and was possible.  With a  view  to stimulating  a  debate  a  study  paper  was  prepared   and circulated   to  which  Mr.  Krishnan,  a  member  of   LIC, countered. Since Mr. Krishnan had tried to demolish some  of the points raised by the respondent in his study paper,  the respondent  had publish a rejoinder in the Hindu.   However, the  LIC  refused to publish it in their  magazine  financed from public funds.  Such an attitude on the part of the  LIC can  be  described as both unfair and  unreasonable;  unfair because fairness demanded that both view points were  placed before  the  readers, however limited be  their  number,  to enable  them to draw their own conclusions and  unreasonable because  there  was  no logic or  proper  justification  for refusing  publication. A monopolistic state  instrumentality which  survives on public funds cannot act in  an  arbitrary manner on the specious plea that the magazine is an in-house one  and it is a matter of its exclusive privilege to  print or  refuse  to  print the rejoinder.   It  is  difficult  to understand  why  the  LIC should feel shy  of  printing  the rejoinder if it has nothing to fear.  By denying information to the consumers as well as other subscribers the LIC cannot be said to be acting in the best interest of the  community. It  is  not  the  case of LIC  that  the  rejoinder  to  Mr. Krishnan’s  article  is  in any manner  prejudicial  to  the members of the community or that it is based on imaginery or concocted material.  That being so on the fairness  doctrine the  LIC  was under an obligation to publish  the  rejoinder since it had published  Mr. Krishnan’s counter to the  study paper.   The  respondent’s fundamental right of  speech  and expression clearly entitled him to insist that his views  on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one.      For  the above reasons we do not find any infirmity  in the view taken by the High Court on the LIC’s obligation  to print  the rejoinder in its magazine.  We must clarify  that we  should  not  be understood as laying  down  an  absolute proposition  that merely because the LIC is a State  and  is running  a  magazine  with  public  funds  it  is  under  an obligation to print any matter that any informed citizen may forward for publication.  The view that we are taking is  in the peculiar facts of the case.      It  was  contended by the learned counsel for  the  LIC that  since  the  rejoinder  of the  respondent  is  to  Mr. Krishnan’s  article printed in December 1978, the  same  has

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become stale by passage of time and has lost its                                                        614 relevance and hence this Court should annul the High Court’s directive  to the LIC to print and publish the  same in  its magazine.   Counsel  for the respondent submitted  that  the issued raised by the respondent regarding high premium rates is still live as the situation has not improved from what it was in 1978.  It may be that the statistical information  in the  rejoinder  may be outdated but,  contends  the  learned counsel,  the  issue that the LIC is  charging  unduly  high premium  rates by refusing to prune its avoidable  expenses, is  still relevant.  He submits that if the court acedes  to the  submission of the learned counsel for the LIC it  would result in placing a premium on the recalcitrant attitude  of the  LIC.  We see force in this submission. By  refusing  to print  and  publish the rejoinder the LIC had  violated  the respondent’s  fundamental  right.  A wrong  doer  cannot  be heard  to  say  that its persistent  refusal  to  print  and publish the article must yield the desired result, namely to frustrate the respondent.  The Court must be careful to  see that it does not, even unwittingly, aid the effort to defeat a  party’s 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 LIC’s appeal must fail.      That  takes  us to the appeal  involving  Doordarshan’s 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 Committee 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                                                        615 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 Cinematograph  Act,  1952  (hereinafter called ’the Act’)      In  the  High  Court  Doordarshan  had  by  way  of  an additional  affidavit  contended  that  before  refusing  to telecast the film, its selection committee had examined  the film with a view to finding out if it conformed to the norms laid down for selection of a documentary film for  telecast. These norms on which reliance was placed have been extracted

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in the judgment of the High Court and read as under:          "(i) Criticism of friendly countries;          (ii) Attack on religions and communities;          (iii) Anything obscene and defamatory;          (iv)Incitement  of  violence  of  anything  against          maintenance of law and order;          (v) Anything amounting to contempt of court;          (vi) Attack on a political party by name;          (vii) Hostial criticism of any State or Centre."        The  High Court observes that these  guidelines  were purely departmental/executive instructions or notings on the file for internal guidance which cannot curtail the  freedom conferred by Article 19(1)(a) and not being ’law’ could  not claim  the protection of Article 19(2) of the  Constitution. The learned Additional Solicitor General submitted that  the High   Court  had  completely  misdirected  itself  in   not apprediating that these norms were fixed keeping in mind the requirement  of Section 5B of the Act which section was  was consistent with Article 19(2) extracted earlier.  We may now examine the scheme of the Act.       The  Act was enacted to provide for the  certification of  cinematograph  films for exhibition and  for  regulating their exhibition.  Section 3 of                                                        616 the  Act  empowers the Central Government  to  constitute  a Board consisting of a Chairman, five whole time members  and six honorary members, three of whom must be persons  engaged or  employed  in  the  film industry,  for  the  purpose  of sanctioning   films  for  public  exhibition.   Section   3B empowers  the Board so constituted to constitute by  special or general order an Examining Committee for the  examination of  any film or class of films and a Revising Committee  for reconsidering,  if  necessary, the  recommendations  of  the Examining  Committee.   Any person desiring to  exhibit  any film has to make an application as provided by Section 4  to the Board in the prescribed manner for a certificate and the Board may after examination of the film section the film for unrestricted  public  exhibition or sanction  the  film  for public  exhibition  restricted to adults or  to  direct  the applicant to carry out  such excisions and modifications  in the  film as it thinks necessary before sanctioning  it  for unrestricted  public  exhibition or  for  public  exhibition restricted  to  adults or refuse to sanction  the  film  for public exhibition.  Section 4A provides for the  examination of  films  by  the Examining Committee and in  the  case  of difference  of opinions amongst the member of the  Examining Committee for further examination by the Revising Committee. Section  5A provides for certification of films.   If  after examination the Board consider that the film is suitable for unrestricted public examination the Board consider that  the film is suitable for unrestricted public exhibition or  that although  not suitable for such exhibition, it  is  suitable for  public exhibition restricted to adults, it is  required to issue a ’U’ certificate in the case of the former and  an ’A’  certificate  in  the case of the  latter.   Section  5B provides  for  laying down principles for  guidance  in  the matter  of  certification  of films.  This  section  to  the extent relevant for our purpose reads as under :          "5B. Principles for guidance in certifying films  -          (1)  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  States,

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        public  order,  decency or  morality,  or  involves          defamation  or  contempt of court or is  likely  to          incite the commission of any offence.           (2)  Subject to the provisions contained  in  sub-          Section  (1).... the Central Government  may  issue          such directions as it may think fit setting out the          principles which shall guide the                                                        617          authority  competent  to grant  certificates  under          this   Act   in  sanctioning   films   for   public          exhibition......" Section  5C  provides  for  the  constitution  of  appellate tribunals,  whereas Section 5D provides for appeals  against the  Board’s decision refusing to grant the  certificate  or granting only ’A’ Certificate or directing the applicant  to carry  out  any  excisions or  modifications.   In  addition thereto revisional powers have been conferred on the Central Government  to  call  for the record of  any  proceeding  in relation  to any film at any stage where it is not made  the subject  matter  of appeal, to enquire into the  matter  and make  such  order in relation thereto as it thinks  fit  and where necessary give a direction that the exhibition of  the film should suspended for a period not exceeding two months. Sub-section  (5)  of section 6 lays down  that  the  Central Government  may,  if satisfied in relation to  any  film  in respect  of  which an order has been made  by  an  appellate tribunal  under Section 5B that it is necessary so to do  in the interests of (i) the sovereignty and integrity of  India or  (ii)  the  security  of  the  State  or  (iii)  friendly relations with foreign State or (iv) public order or decency or  morality, make such enquiry into the matter as it  deems necessary  and  pass such order in relation  thereto  as  it thinks fit.  Thereupon the Board must dispose of the  matter in  conformity  with such order.  Section 7  lays  down  the penalties  for contravention of the requirements of Part  II of  the  Act.   Section 8 confers power to  make  rules  and Section  9  empowers the Central Government  to  exempt  the exhibition or export of any film or class of films from  any of  the  provisions of the said part or of  any  rules  made thereunder  subject to such conditions and restrictions,  if any,  as it may impose.  Part III of the Act deals with  the regulation  of  exhibitions by means of  Cinematograph  with which we are not concerned.  This in brief is the scheme  of the statute.      In  exercise of power conferred by sub-section  (2)  of Section  5D  of  the Act the  Central  Government  issued  a notification  dated  7th  January,  1978  laying  down   the principles which should guide the authorities in sanctioning the  films for public exhibition.  These guidelines came  to be enlarged by a subsequent notification dated 11th  August, 1989.   The guidelines laid down by these two  notifications require the Board of Film Certification to ensure that :          "(i)  Anti-social activities such as  violence  are          not glorified or                                                        618          justified:          (ii)  The  modus-operandi  of  criminals  or  other          visual or words likely to incite the commission  of          any offence are not depicted:          (iia)Scenes  showing  involvement  of  children  in          violence, either as victims or as perpetrators,  or          showing  child  abuse or abuse  of  physically  and          mentally handicapped persons are not presented in a          manner    which   is   needlessly   prolonged    or          exploitative in nature;

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        (iii)  Pointless or avoidable scenes  of  violence,          cruelty and horror are not shown;          (iiia)  Scenes which have the effect of  justifying          or  glorifying drinking and drug addiction are  not          shown;          (iv)  Human  sensibilities  are  not  offended   by          vulgarity, obscenity and depravity;          (iva)  Visuals  or  words depicting  women  in  any          ignorable  servility  to  man  or  glorifying  such          servility  as a praiseworthy quality in  women  are          not presented;          (ivb)  Scenes  involving  sexual  violence  against          women like attempt to rape, gangrape, murder or any          other  form of molestation or scences of a  similar          nature shall be avoided and if for any reason  such          things are found to be inevitable for the  sequence          of a theme, they shall be properly scruitinised  so          as  to ensure that they do not create  any  adverse          impression  on  viewers  and the  duration  of  the          scenes shall be reduced to the shortest span;          (v)  Visuals  or  words  contemptuous  of   racial,          religious or other groups are not presented;          (va)  Visuals  or  words  which  promote   communal          obscurantist,   antiscientific  and   anti-national          attitudes are not presented;          (vi) The sovereignty and integrity of India is  not          called in question;                                                        619          (vii) The security of the State is not  jeopardised          or endangered;          (viii)  Friendly relations with foreign States  are          not strained;          (ix) Public order is not endangered;          (x)  Visuals  or  words  involving  defamation   or          contempt of court are not presented." In  following  these guidelines or principles the  Board  of Film  Certification  has been cautioned to ensure  that  the film is judged in its entirely from the point of view of its overall  impact and is judged in the light  of  contemporary standards  of the country and the people to which  the  film relates.   Pursuant to the issuance of these guidelines  the Central Government issued a further notification dated  16th October,  1984 in exercise of power under Section 9  of  the Act  exempting all Doordarshan programs from the  provisions relating to certification of films in Part II of the Act and the  Rules  made thereunder subject to  the  condition  that while  clearing  programmers  for  telecast,  the   Director General,  Doordarshan or the condition that  while  clearing programs for telecast, the Director General, Doordarshan  or the  concerned  director, Doordarshan Kendra shall  Keep  in view the film certification guidelines issued by the Central Government  to  the Board of Film Certification  under  sub- section (2) of Section 5B of the Act.      It  may  be stated at the outset that  the  refusal  to telecast was not based on the ground that the list of  award winning films was long and on the basis of inter-se priority amongst  such films and the time allocated  for  telecasting such  films, it was not possible to telecast the film.   The grounds  for  refusal  that  can  be  culled  out  from  the pleadings  were (i) the film is out dated (ii) it  has  lost its relevance (iii) it lacks moderation and restrainst  (iv) it is not fair and balanced (v) political parties have  been raising  various  issues  concerning the  tragedy  and  (vi) claims  for  compensation  by  victims  are  sub-judice.  In addition  to these grounds which can be culled out from  the

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judgment  of the High Court, it is found from the  affidavit filed in the present proceedings that the film was not found fit for telecast as it was likely to create commotion to the already  charged atmosphere and because the film  criticised the   action  of  the  State  Government,  which   was   not permissible under the Guidelines.  The last two grounds were not  before  the  High  Court  giving  the  impression  that Doordarshan  is  shifting its stand.  We  will  however  not brush  them aside on such technical considerations.  We  may however  point  out  that Doordarshan  had  not  placed  any material                                                        620 suggesting  why it things that the film does not conform  to the above stated norms.      Mr.   Tulsi,  the  learned  counsel  for   Doordarshan, submitted  that sub-section (2) of section 5B  empowers  the Central  Government  to  issue directions  setting  out  the principles  which  shall guide the  authority  competent  to grant  certificates under the Act in sanctioning  films  for public  exhibition  and  since  the  exemption  granted   to Doordarshan  under Section 9 of the Act from the  provisions relating to certification of films in Part II of the Act and Rules  made thereunder by notification dated  16th  October, 1984  is  subject  to  the  condition  that  while  clearing programs  for  telecast Doordarshan shall keep in  view  the film   certification  guidelines  issued  by   the   Central Government  under  Section  5B of the  Act,  the  guidelines clearly  have statutory flavour and would,  therefore,  fall within the protective umbrella of Article 19(2) and the High Court   was   wrong   in  brushing  them   aside   as   mere departmental/executive  directions or notings on a file  not having the force of law.  We will so assume for the  purpose of this appeal.  However, once it is recognised that a film- maker  has  a fundamental right under  Article  19(1)(a)  to exhibit  his  film,  the  party which  claims  that  it  was entitled  to refuse enforcement of this right by  virtue  of law made under Article 19(2), the onus lies on that party to show  that the film did not conform to the  requirements  of that  law, in the present case the guidelines  relied  upon. Two  question, therefore, arise (i) whether  the  film-maker had  a  fundamental  right  to have  his  film  telecast  on Doordarshan  and  (ii)  if  yes,  whether  Doordarshan   has successfully  shown that it was entitled to refuse  telecast as the guidelines were breached?      In  th  United  States  prior  restraint  is  generally regarded to be at serious odds with the First Amendment  and carries  a heavy presumption against  its  constitutionality and  the authorities imposing the same have to  discharge  a heavy  burden  on demonstrating its justification  (See  New York  Times  Company  v. The United States,  403  U.S.  713. Traditionally  prior restraints. regardless of  their  from, are  frowned upon as threats to freedom of expression  since they contain within themselves forces which if released have the potential for imposing arbitrary and at times irrational decisions.  Since the function of any Board of Film  Censors is  to censor it, it immediately conflicts with the  Article 19(1)  (a)  and  has  to  be  justified  as  falling  within permissible   restraint   under   Article   19(2)   of   the Constitution.  A similar question came up before this  Court in K.A. Abbas v. The Union of                                                        621 India,  [1971] 2 SCR 446 wherein Chief Justice  Hidayatullah exhaustively  dealt with the question of prior restraint  in the  context of the provisions of the Constitution  and  the Act.   The  learned  Chief Justice  after  setting  out  the

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various  provisions to which we have already adverted  posed the  questions; ‘How far can these restrictions go  and  how are these to be imposed’?  The documentary film ‘ A tale  of four  cities’  made  by K.A. Abbas  portrayed  the  contrast between  the luxuious life of the rich and the  squalor  and poverty  of  the poor in the four principal  cities  of  the country  and  included  therein shots  from  the  red  light district of Bombay showing scantily dressed women soliciting customers by standing near the doors and windows.  The Board of  Film  Censors granted ‘A’ certificate to  the  film  and refused  the ‘U’ certificate sought by Abbas.  This  was  on the ground that the film dealt with relations between  sexes in  such a manner as to depict immoral traffic in women  and because  the film contained incidents unsuitable  for  young persons.   Abbas  challenged  the Board’s  decision  on  the ground (i) that pre-censorship cannot be tolerated as it was in  violation  of the freedom of speech and  expression  and (ii)  even  if  it  is  considered  legitimate  it  must  be exercised  on  well-defined principles leaving no  room  for arbitrary  decisions.   This Court held that  censorship  in Indian had full justification in the field of exhibition  of films  since  it was in the interest of society and  if  the legitimate  power  in abused it can be struck  down.   While dealing  with the grounds on which the ‘U’  certificate  was refused, the learned Chief Justice observed:          "The  task of the censor is extremely delicate  and          his  duties cannot be the subject of an  exhaustive          set of commands established by prior ratiocination.          But  direction is necessary of him so that he  does          not  sweep within the terms of the directions  vast          areas of thought, speech and expression of artistic          quality  and  social  purpose  and  interest.   Our          standards must be so framed that we are not reduced          to  a  level  where the  protection  of  the  least          capable and the most depraved amongst us determines          what the morally healthy cannot view or read.   The          standards that  we set for our censors must make  a          substantial  allowance  in favour of  freedom  thus          leaving  a vast area for creative art to  interpret          life  and  society with some of its  foibles  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                                                        622          society.   The requirements of art  and  literature          include  within themselves a comprehensive view  of          social life and not only in its ideal from and  the          line is to be drawn where the average man moral man          begins to feel embarrassed or disgusted at a  naked          portrayal  of life without the redeeming  touch  of          art  or  genius or 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 importance and protection  for          their growth."      In  Ramesh  v.  The union of India, [1988]  1  SCC  668 petition  was filed to restrain the screening of the  serial ‘Tamas’ on the ground that it violated Articles 21 and 25 of the  Constitution and Section 5B of the Act.  Based  on  the novel  of Bhisma Sahni this serial depicted the events  that took place in Lahore immediately before the partition of the

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country.  Two Judges of the Bombay High Court saw the serial and  rejected the contention that it propagates the cult  of violence.  This Court after referring to the observations of Hidayatullah, CJ. in K.A. Abbas proceeded to state as under:          "It  is no doubt true that the motion picture is  a          powerful instrument with a much stronger impact  on          the  visual and aural sense of the spectators  than          any other medium of communication; 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 interest, scenes  depicting          mutual   respect  and  tolerance,  scenes   showing          comradeship, help and kindness which transcend  the          barriers   of  religion.    Unfortunately,   modern          developments both in the field of cinema as well as          in the field of national and international politics          have rendered it inevitable for people                                                        623           to face realities of internecine conflicts,  inter          alia,  in the name of religion.  Even  contemporary          news  bulletins very often carry scenes of  pitched          battle or violence.  What is necessary sometimes is          to  penetrate  behind the scenes  and  analyse  the          causes  of  such  conflicts.  The  attempt  of  the          author  in this film is to draw a lesson  from  our          country’s  past  history,  expose  the  motives  of          persons  who operate behind the scenes to  generate          and foment conflicts and to emphasise the desire of          persons to live in amity  and the need for them  to          rise above religious barriers and treat one another          with  kindness,  sympathy  and  affection.   It  is          possible only for a motion picture to convey such a          message  in depth and if it is able to do this,  it          will be an achievement of great social value."      This Court upheld the finding of the Bombay high  Court that  the  serial  viewed  in its  entirety  is  capable  of creating  a lasting impression of this massage of peace  and co-existence  and  there  is no fear  of  the  people  being obsessed, overwhelmed or carried away by scenes of  violence of fanaticism shown in the film.      As  already  pointed  out  earlier  this  Court  in  S. Rangarajan’s  case  (supra)  emphasised  that  the   freedom conferred  on  a citizen by Article  19(1)(a)  includes  the freedom  to  communicate one’s ideas or thoughts  through  a newspaper,  a  magazine or a movie.  Although  movie  enjoys that freedom it must be remembered that movie is a  powerful mode  of  communication  and  has the  capacity  to  make  a profound  impact  on  the minds of the viewers  and  it  is, therefore,  essential to ensure that the message it  conveys is  not  harmful  to the society or even a  section  of  the society.   Censorship by prior restraint,  therefore,  seems justified  for the protection of the society from  the  ill- effects  that a motion picture may produce  if  unrestricted exhibition  is  allowed.  Censorship is  thus  permitted  to protect  social  interests enumerated in Article  19(2)  and

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section  5B  of  the  Act.   But  such  censorship  must  be reasonable  and  must answer the test of Article 14  of  the Constitution.   In this decision the fundamental  difference between  the U.S. First Amendment and the freedom  conferred by  19(1)(a), subject to Article 19(2) has been  highlighted and we need not dwell on the same.      Every right has a corresponding duty or obligation  and so has the fundamental right of speech and expression.   The freedom conferred by                                                        624 Article  19(1)(a) is, therefore, not absolute as perhaps  in the  case  of the U.S. First Amendment; it carries  with  it certain responsibilities towards fellow citizens and society at  large.  A citizen who exercises this right  must  remain conscious  that his fellow citizen too has a similar  right. Therefore, the right must be so exercised as not to come  to direct conflict with the right of another citizen.  It must, therefore, be so exercised as not to jeopardise the right of another or clash with the paramount interest of the State or the   community   at  large.   In  India,   therefore,   our Constitution   recognises  the  need  to  place   reasonable restrictions  on  grounds  specified by  Article  19(2)  and section 5B of the Act on the exercise of the right of speech and  expression.  It is for this reason that this Court  has recognised  the need for prior restraint and our  laws  have assigned a specific role to the censors as such is the  need in  a  rapidly  changing  societal  structure.   But   since permissible  restrictions,  albeit reasonable, are  all  the same  restrictions on the exercise of the fundamental  right under  Article 19(1)(a), such restrictions are bound  to  be viewed as anathema, in that, they are in the nature of curbs or limitations on the exercise of right and are,  therefore, bound to be viewed with suspicion, thereby throwing a  heavy burden  on  the authorities that seek to impose  them.   The burden would therefore, heavily lie on the authorities  that seek  to  impose  them to show  that  the  restrictions  are reasonable are permissible in law.      From    the   above   discussion   it   follows    that unquestionably  the  respondent has a right  to  convey  his perception  of  the  gas  disaster  in  Bhopal  through  the documentary  film prepared by him.  This film not  only  won the  Golden  Lotus  award  but  was  also  granted  the  ‘U’ certificate   by  the  censors.   Even  according   to   the petitioners ‘the documentary is an appraisal of what exactly transpired in Bhopal on the date the gas leak occurred.  The petitioners,  therefore,  concede that the  film  faithfully brings  out  the events that took place at  Bhopal  on  that fateful night.  Therefore, the respondent cannot be  accused of  having distorted the events subsequent to the  disaster. How than can 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 how 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                                                        625 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

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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.   We, therefore,  see no reason to interfere with the  High  Court order.      In  the result both the appeals fail and are  dismissed with costs. T.N.A                                    Appeals dismissed.                                                        626