R.M. Seshadri vs The District Magistrate, Tanjore and Another

Rajamannar, C.J.—The petitioner seeks directions from this Court in the exercise of our Jurisdiction and power under Article 226 of the

Constitution of India in the following circumstances. The petitioner is the owner of a permanent cinema theatre called Sri Brahnnayaki Talkies in

Thiruthuraipundi, Tanjore district. In accordance with the provisions of the Cinematograph Act, 1918, he applied for and obtained a licence from

the District Magistrate, Tanjore, in respect of his theatre. The period for which the licence was so obtained is from 6th September 1950 to 4th

September 1951. The licence was granted subject to certain conditions which were mentioned in the licence. We are concerned in this application

with condition 4(a) and (b) and the special condition No. 3. They run as follows:

4(a). The licensee shall exhibit at each performance one or more approved films of such length and for such length of time, as the Provincial

Government or the Central Government may, by general or special order, direct. (b) The licensee shall comply with such directions as the

Provincial Government may by general or special order give as to the manner in which approved films shall be exhibited in the course of any

performance"". Explanation: ''Approved film'' means a cinematograph film approved for the purpose of this condition by the Provincial Government

or the Central Government.

Special condition 3. The licensee should exhibit at the commencement of each performance not Jess than 2000 feet of one or more approved

films.

These conditions were imposed in pursuance of two notifications issued by the Government of Madras purporting to act in exercise of the powers

conferred by Section 8 of the Act. One of these notifications dated 20th March 1048 amended the Madras Cinematograph rules 1933 by

substituting the conditions 4(a) and (b) above set out in the place of the condition 4 in force previously. The second notification is dated 15th

September 1948 and ran as follows:

In pursuance of condition 4 of the conditions of licence in form A annexed to the Madras Cinematograph rules, 1933, His Excellency the

Governor of Madras hereby directs that every licences shall exhibit at the commencement of each performance not less than two thousand feet of

one or more approved films.

The petitioner''s case is that the conditions imposed by the said two notifications are ''ultra vires'', void and of no effect for several reasons. To

appreciate these reasons and the contentions of the petitioner it will be useful to make a brief reference to the material provisions of the Act.

The preamble of the Act (The Cinematograph Act, 1918) gives the object of the Act, namely, ""Whereas it is expedient for regulating exhibitions

by means of cinematographs"". Section 3 runs thus,

Save as otherwise provided in this Act, no person shall give an exhibition by means of cinematograph elsewhere than in a place licenced under this

Act, or otherwise than in compliance with any conditions and restrictions imposed by such licence.

Section 4 prescribes the authority to grant licences, namely, the District Magistrate in the moffusil and the Commissioner of Police in Presidency

town, Section 5 provides that a licensing authority shall not grant a license unless it is satisfied (a) that the rules made under the Act have been

substantially complied with, and (b) that adequate precautions have been taken in the place in respect of which the licence is to be given for the

safety of persons attending exhibitions therein. Under Sub-section (3) of Section 5, subject to the provisions of that section and to the control of

the Provincial Government, the licensing authority may grant licenses under the Act to such persons as it thinks fit and on such terms and conditions

and subject to such restrictions as it may determine. Section 8(1) empowered, the Provincial Government to make rules for the purpose of carrying

into effect the provisions of the Act, and in particular, to provide for the regulation of cinematograph exhibitions for securing the public safety; the

procedure of the authorities constituted for examining and certifying films as suitable for public exhibition and all matters ancillary thereto and the

fees to be levied by those authorities. There were two subsequent Acts amending some of the provisions of the original Act. In the latter Act, LXII

of 1949, there were several amendments of which we are concerned with the amendments to Section 5. Inter alia power was granted to the

Central Government to make rules providing for the delegation of any of the powers of the authority to such person or persons nominated by it, the

procedure of the authority for examining and certifying films as suitable for public exhibition and all matters ancillary thereto and the fees to be

levied by such authority and the conditions subject to which any certificate may be granted under the Act and the circumstances in which any

certificate shall be refused. A new section (Section 10) which was inserted by the amending Act empowers the Central Government to give

directions to any Provincial Government as to the carrying into execution the rules and orders made thereunder.

The first contention of Mr. Seshadri who argued the case ably appearing for himself is that u/s 5(3) of the Act the authority to impose conditions

in the licence is only the licensing authority, namely, the District Magistrate and the Government had no authority in law to grant the licensing

authority power to impose such conditions. There is no substance in this contention. Section 5(3) circumscribes the power of the licensing

authority, and clearly lays down that such power is subject to the provisions of the section and the control of the Provincial Government. The

control of the Provincial Government must have reference to the grant of the licences.

Nor is there any substance in the next contention, namely, that u/s 8 of the Act rules can be made only for the purpose of carrying into effect the

provisions of the Act and there is no provision relating to the kind of films to be exhibited and the policy of using the cinematograph for educational

purposes. The power to make rules has been conferred in the widest sense and the fact that there is no special mention of the purposes of

cinematograph exhibitions does not imply that no rules can be made relating to the kind of films to be exhibited and their effects on the audience.

The Act itself was passed with the avowed object of regulating exhibitions by means of cinematographs. Any rule providing for the kind of films to

be exhibited or prohibited from being exhibited will be a rule lawfully made in exercise of the powers conferred by Section 8 of the Act.

It was contended with great ingenuity that the licence can deal only with the place and therefore any condition which had no connection with the

safety or other requirements of the place as such is ''ultra vires''. The ruling in ''Theatre De Lux (Halifax) Ltd. v. Geldhill'' (1915) 2 K. B. 49 was

relied on in support of this contention. Before referring to that and other English decisions dealing with the legality of certain conditions imposed on

a licencee, it will be useful to refer to the relevant statutory provisions of the English Cinematograph Act, 1909.

The Act was entitled ""An Act to make better provision for securing safety at Cinematograph and other exhibitions"". Section 1 provided that no

exhibition of pictures by means of a cinematograph or other similar apparatus for the purpose of which inflammable films are used shall be given

elsewhere than in premises licensed for the purpose in accordance with the provisions of the Act. Section 2, Sub-section (1) ran as follows:

A county council may grant licences to such persons as they think fit to use the premises specified in the licence for the purposes aforesaid on such

terms and conditions and under such restrictions as, subject to regulations of the Secretary of State, the council may by the respective licences

determine"".

Section 3 imposed a penal liability for contravening any of the conditions or restrictions imposed by the licence.

The first case in which the legality of conditions attached to a licence for exhibition of cinematograph films came up for discussion is the ''London

County Council v. Bermondsey Bioscope Co., Ltd.'' (1911) 1 K. B. 445. A licence was granted to use certain premises for exhibition of pictures

by means of cinematograph apparatus and one of the terms and conditions on which it was granted was that the premises be not opened on

Sundays, Good Friday or Christmas day. Contrary to this condition, one Sunday there was an exhibition of pictures. A prosecution ensued for

contravention of the condition. The Magistrate agreed with the contention of the licensee that the condition in question was ''ultra vires'' having

regard to the scope and purposes of the Cinematograph Act. The case then came up before the Division Court of the King''s Bench, it was

contended on behalf of the licencee that the Cinematograph Act, as its title showed, was intended to provide against the danger which may arise

from the use of Inflammable films of cinematograph and other similar exhibitions and the words ""on such terms and conditions and under such

restrictions"" in Section 2(1) of the Act must have reference either to securing safety at the exhibition or to the user of the premises while they were

being kept open for the purposes of the exhibition; and the condition that the premises shall be closed on particular days was not a condition for

securing safety; nor did it have reference to the user of the premises. It was held that the condition was valid. Dealing with the argument that the

conditions which the County Council had power to impose were conditions for securing safety and with the scope of the title of the Act which was

referred to as indicating the nature of the conditions which may be lawfully imposed, Lord Alverstone C. J. observed thus,

I quite recognise that the title of an Act is part of the Act, and that it is of Importance as shewing the purview of the Act;.....It has never yet,

however, been laid down that, if the language of an Act is clear, full effect is not to be given to it because it goes beyond the title. The language of

Section 2, Sub-section (1) seems to me to be quite clear and we must therefore construe it according to its plain meaning. In my opinion that

section is intended to confer on the county council a discretion as to the conditions which they will impose, so long as those conditions are not

unreasonable.

Pickford and Avory JJ. agreed with the learned Chief Justice.

This case has always been cited as the leading authority on the power of the Council to impose conditions in a cinematograph licence which may

not have a direct relation to the safety of the premises.

In ''Rex. v. London County Council'' (1915) 2 K. B. 466 a Division Bench consisting of Lord Reading C. J. and Bray and Shearman JJ.

accepted the law as laid down in the ''London County Council v. Bermondsey Bioscope Co., Ltd.'' (1911) 1 K. B. 445 namely, that the powers

given to the council are not confined to securing the safety of the public and the Court of Appeal approved of it. Buckley L. J. said,

It is clear to my mind that the terms and conditions may cover a large field than that covered by the regulations of the Secretary of state for

securing safety. It seems to me that upon the true construction of the Act the discretion to grant licences to such persons as the licensing authority

thinks fit enables them to go beyond requiring provisions for safety and to impose other terms and conditions. This was decided by a Divisional

Court in 1910 in the ''London County Council v. Bermondsey Bioscope Co., Ltd. (1911) 1 K. B. 445.

In ''Stott v. Gamble'' (1916) 2 K. B. 504 the validity of the following condition in a licence came up for consideration,

No film shall be shown that is objectionable or indecent or anything likely to tending to educate the young in the wrong direction, or likely to

produce riot, tumult, or breach of the peace, and no offensive representations of living persons shall be shown. Provided also that no film shall be

exhibited if notice that the Justices i.e., the licensing authority, object to such film has been given to the licensee.

The learned Judge who decided the case cited the dictum of Pickford J. in the ''London County Council v. Bermondsey Bioscope Co., Ltd.

(1911) 1 K. B. 445 namely,

The County Council might impose such restrictions so long as they were not unreasonable, as they thought right,"" and held that the condition was

valid.

The question to be considered was whether the condition was unreasonable having regard to the subject-matter of the licence, and in his

opinion it was most desirable that Justices should when granting a licence put in a condition retaining to themselves power to stop the exhibition of

any film which they thought was objectionable upon the grounds mentioned in the condition. It is sufficient to cite the case in ''Mills v. London;

County Council'' (1925) 1 K B 213 as illustrative of the same principle. There the condition was, ""that no film other than the photographs of

current events'' which has not been passed for universal exhibition by the British Board of Films Censors shall be exhibited in the premises without

the express consent of the Council during the time that any child under or appearing to be under the age of 16 years is therein; Provided that this

condition shall not apply in the case of any child who is accompanied by a parent or bona fide adult guardian of such child."" It was held that the

condition was not Invalid, because it was not unreasonable. Lord Hewart C. J. followed the construction placed on Section 2(1) of the

Cinematograph Act by the learned Judges in the London County Council v. Bermondsey Biscope Co., Ltd., (1911) 1 K. B. 445. We may now

refer to Theatre De Lux (Halifax) Ltd. v. Gladhill'', (1915) 2 K B 49. The correctness of the decision in this case was apparently doubted in later

decisions, but it was always understood that it did not run counter to what was laid down in the ''London County Council v. Bermondsey Biscope

Co., Ltd. (1911) 1 K. B. 445. In this case the impugned condition was, ""Children under fourteen years of age shall not be allowed to enter into or

be in the licensed premises after the hour of 9 p. m. unaccompanied by a parent or guardian. No child under the age of ten years shall be allowed

in the licensed premises under any circumstances after 9 p. m."" Lush and Bowlatt JJ. held that the condition was ''ultra vires'' inasmuch as there

was no connection between the ground on which the condition was imposed, namely, regard for the health and welfare of young children generally

and the subject-matter of the licence, namely, the use of the premises for giving of cinematograph exhibitions. Atkin J. dissented. He held that the

only restriction upon the power of the licensing authority to impose conditions on the grant of licenses was that the conditions must be (1)

reasonable, (2) in respect of the user of the licenced premises, and (3) in the public interest. They were entitled to take into account the public

Interest so far as children are affected and the condition was not ''ultra vires''. So far as we are able to analyse the reasoning of the majority

Judges, we find that the ''ratio decidendi'' of their decision was that the condition had no connection with the subject matter of the licence. Lush J.

said:

The condition is reasonable, if at all, not because it is connected with cinematograph exhibitions but because it is desirable for the health and

welfare of small children that they should not be in any place of public entertainment in certain circumstances and unless accompanied by a parent

or guardian.

The learned Judge thought that there was no connection between the condition and the subject-matter of the licence because it was desirable that

young children should not be even in other places of public entertainment after certain hours. In a subsequent case reported in the same volume,

''Ellis v. North Metropolitan Theatres'' (1915) 2 K. B. 61 Bray J. justified the decision thus: ""The ground upon which the Court there proceeded

was that Section 3, which makes it an offence in the occupier of the licenced premises to allow them to be used in contravention of the conditions

on which the licence was granted was dealing with conditions which affect the user of the premises by the licensee, and that a condition which

restricted their use not by the licensee but by visitors of a tender age was hot within the Act and was invalid. Whether the majority of the Court in

that case were right in so deciding it is not for us to say, for we are bound by their decision, but here there is no question that the condition is one

which affects the user by the licensee. Therefore that case does not touch the present one."" The law on the point is briefly summed up by Halsbury,

2nd Edn., volume 32, Section 90 (page 72) thus: ""The conditions which may be imposed are not limited to matters of safety, but may deal with the

suitability of the films to be exhibited or the admission of children to the licensed premises."" We are therefore of opinion that the conditions in the

petitioner''s licence to which objection has been taken are not invalid for the reason that they are not within the powers of the licensing authority.

Mr. Seshadri next contended that the conditions infringe his fundamental right to freedom of speech and expression conferred on him by Article

19(1)(a) of the Constitution. We must confess that we have not been able to follow this contention. Reliance was placed on observations in a

recent Full Bench decision in ''Srinivasa Bhat v. The State of Madras'' 1951 1 M.L.J. 115 In that case the constitutional validity of Section 4(1)(a)

and (b) of the Press (Emergency) Powers Act fell to be determined. Security had been demanded from a printing press under the provisions of that

Act. In dealing with an argument based on Article 19(1)(a) the learned Judges interpreted the term ""freedom of speech and expression"" widely as

including the liberty to propogate not only one''s own views but also the right to print matters which are not one''s own but either have been

borrowed from some one else or are printed under the direction of that person. We are unable to see how it can be said that the right to freedom

of speech and expression of the petitioner has in any way been violated. It is impossible for us to accept the position that a licencee of a cinema

theatre who exhibits films is exercising a right of freedom of speech and expression in exhibiting films which he desired to exhibit. He is not

exhibiting them either as the expression of his thoughts and ideas or of those borrowed from some one else and adopted by him. In our opinion, the

petitioner is doing nothing but carrying on a business, and even remotely it cannot be suggested that these films represent his speech or expression.

His right to freedom and expression is no more infringed by his being prohibited from exhibiting certain films or by being directed to exhibit certain

films than in the case of a book seller who is prohibited from selling certain books or is directed to sell certain other books. There is no substance

in this contention.

The next contention of Mr. Seshadri was based on Article 19(1)(g). The imposition of films not of his choice and on condition that he should

pay for their exhibition infringed on his right to the free exercise of his business. The Government in effect requisition the use of his theatre to exhibit

their own films and far from paying compensation for it, make him pay for their hire. As he is compelled to exhibit not less, than 2000 feet of such

approved films, there is a necessary shortage of the time during which he can exhibit films of his own choice. All this constitute a serious and

substantial interference with his business. So the argument ran. Anticipating that the action of the Government may be sought to be supported by

the provisions of Article 19(6), Mr. Seshadri contended firstly that the condition in question was not a restriction so much as an imposition,

secondly that the restriction if it be such, is not reasonable, and thirdly, that the restriction is not In the Interests of the general public. Obviously

there is nothing in the first part of the argument. The imposition of the condition in question would certainly amount to a restriction in that it prevents

the full and free exercise of the petitioner''s right to exhibit such films as he wants. Then, is the restriction reasonable and is it in the Interests of the

general public? On behalf of the State, the Superintendent in the Home Department filed an affidavit in which the condition was justified in the

following manner:

As far as the compulsory exhibition of approved films is concerned, the State have thought that it is necessary to inform and educate the public in

various matters through the medium of films, and that the most effective way of doing this is to direct the exhibitors to set aside a certain amount of

screening time which is less than 10 minutes in the public cinemas by adding a condition in the licenses granted to the exhibitors.....To ensure a

regular supply of approved films of a sufficiently high standard and without duplication and wastages Govt. organisation named Films Division has

also been set up for the production and distribution of approved films......

The Government''s organisation distributes not only its own films but also suitable films purchased from private producers. It will be seen therefore

that the condition has been imposed in the interests of the general public"".

In our opinion, the provision for exhibition of films of educative and cultural value is in the interests of the general public. The advantage of

visual methods of instruction combined with a certain amount of entertainment cannot be sufficiently emphasised in a country like India where the

masses are practically illiterate, aS It is certainly one of the meritorious objects of a state to educate the masses, this attempt for that purpose must

be held to be in the interests of the general public. If that be so, we think that the provision is otherwise reasonable. If at the most, the time taken

for exhibiting these approved films does not exceed about 15 or 20 minutes, we think there is no unreasonable restriction on the exercise of the

petitioner''s right to carry on his business.

Once it is held that the condition in question is a reasonable restriction in the interests of the general public on the exercise of the right conferred

under Article 19(1)(g) then the fact that the petitioner has to pay rent for the use of such films is immaterial for a decision of the validity of the

condition. If the petitioner could be compelled to exhibit films of educative value, then he must obtain such films only on hire. If he obtains for use

such films from private producers, he will have to pay for them. If he gets them from the Government, he likewise pays them. Actually the rental

represents only about one per cent, of the average box office collections of the cinema.

The learned Advocate General attempted to rely on a provision inserted in the Act by the Amending Act, LXII of 1949, namely, Section 5(2-

A) which runs as follows:

The Central Government may from time to time issue directions to licensees generally, or to any licensee, in particular, for the purpose of

regulating the exhibition of any film or class of films so that scientific films, films intended for educational purposes, films dealing with news and

current events, documentary films or indigenuous films secure an adequate opportunity of being exhibited.

It was however pointed out that this Act came into force only on and from 15th January 1951 long after the grant of the licence to the

petitioner and further, it does not appear that the Central Government has issued directions to licensees under that provisoin. So reliance cannot be

placed en this provision for justifying the condition in question.

In our opinion, the conditions impugned by |the petitioner as being invalid and ''Ultra vires'' are valid and constitutional. The application is

therefore dismissed with costs.