The Central Board of Film Certification Ministry of Information and Broadcasting (Government of India) vs The Film Certification Appellate Tribunal

Arunachalam, J.—Certification of a Tamil film titled ""KUTRAPATHIRIKKAI"" (CHARGE-SHEET) Under category ""A"" is the subject-

matter of this writ petition. Petitioner herein is the Central Board of Film Certification (Ministry of Information and Broadcasting, Government of

India), Madras-6. The first Respondent is the producer of the film, while the second Respondent is the Film Certification Appellate Tribunal, New

Delhi, which directed issue of an ""A"" Certificate for this Tamil Film, subject to carrying out of certain cuts/reductions listed by it.

This case has a chequered history. The first Respondent, producer of this film, made an application on 31-12-1992 u/s 4 of the Cinematograph

Act, 1952, to the Board of Film Certification. On 3.2.1993, this film was viewed by an Examining Committee appointed by the Regional Officer,

to examine the film. The Examining Committee was of the unanimous opinion that this film should not be censored for exhibition, though the reasons

for such refusal were varied. Meanwhile, the Government of India, in exercise of its powers u/s 6(1) of the Act, called for the records of the case

from the Regional Board, Madras. This was sometime in the middle of February, 1993. Since the first Respondent was in the dark for a few

months as to the decision taken on its request for certification, it preferred Writ Petition No. 19052 of 1993 praying for issue of a writ of

mandamus, directing the Union of India and the Petitioner herein, to consider its application and grant the certificate pleaded for. Distributor of the

first Respondent at Madras also preferred a similar writ petition in W.P. No. 18568 of 1993, praying for the same relief. this Court passed a

common order on 3.2.1994 in both the writ petitions directing the Union of India and the Petitioner herein to pass orders on the application of the

first Respondent on its inherent merits in accordance with law, on or before 31.3.1994. The judicial intervention resulted in the Government of

India returning the papers called for by it u/s 6(1) of the Act to Madras Regional Office. A Revising Committee was constituted by the Chairman

of the Board to view this Tamil film. The, Revising Committee viewed the film on 30.3.1994. The Revising Committee offered the unanimous

opinion that this film cannot be certified for exhibition. By an order dated 31.3.1994 (Petitioner claims that this was also orally communicated to

the first Respondent), the application preferred by the first Respondent for censorship was rejected. It appears that the first Respondent received

the rejection order on 6.4.1994. On 16.4.1994, first Respondent preferred Appeal No. 5 of 1994, challenging the order of the Revising

Committee refusing certificate to it, before the second Respondent, the Film Certification Appellate Tribunal, New Delhi. This appeal, in which the

Petitioner has been shown as the sole Respondent, was heard on 26.6.1994. On the same day, the Tribunal had the film screened for their seeing.

On the next day (27.6.1994) the appeal was allowed directing issuance of an ""A"" certificate subject to seven deletions/reductions. On re-

submission of the first print on 25.7.1994, to the Petitioner by the first Respondent, for certification, after effecting the necessary cuts and deletions

directed by the second Respondent, Petitioner granted Certificate ""A"" on the same day.

On 4.8.1994, the instant writ petition was filed. It was taken up for hearing by a learned single Judge on the same day. Since the learned judge

felt that knowledge of Tamil would be necessary for appreciating the contentions raised in the writ petition, ordered placing of the entire papers

before the Honourable the Chief Justice for listing of this writ petition before some other learned judge having knowledge of Tamil. On the

directions of the Honourable the Chief Justice, this writ petition was listed Before another learned single judge, who, in turn, directed obtaining of

further orders from the Honourable the Chief Justice for listing of this writ petition before some other learned judge. It was under these

circumstances that the Honourable the Chief Justice, in order to ensure early reaching of finality in this writ petition, felt it necessary to post the

same before a Division Bench for disposal and that is how this writ petition is before us.

On 11.8.1994, as soon as we took up this writ petition for hearing, Mr. G. Vasantha Pai, learned,-Senior Counsel, submitted that he was

raising a preliminary objection as to the maintainability of this writ petition at the instance of the Petitioner. He observed that we will hear him on

this preliminary objection, after hearing Petitioner''s counsel about the nature and scope of this writ petition. While Mr. V.T. Gopalan, learned

Senior Central Government Standing Counsel representing the Petitioner submitted that in law, the Petitioner was entitled to maintain this writ

petition as an aggrieved party. Mr. G. Vasantha Pai, learned Senior Counsel appearing on behalf of the first Respondent, vehemently submitted

that a subordinate authority like the Petitioner can neither contradict nor challenge the verdict by the higher authority and more so, when a

certificate stood issued by the Petitioner to the first Respondent, on the basis of the directions issued for such grant, by the second Respondent,

Appellate Tribunal. Counsel on either side cited a few decided cases in support of their respective propositions and it was fairly apparent, that

even the preliminary objection, was a mixed question of law and fact and may have to be dealt with in great detail. In that view, we felt it expedient

to hear expeditiously the instant writ petition on merits, of course, subject to its maintainability, on which aspect, we were prepared to hear and

scrutinise the contentions of either party. On 11.8.1994, in that view, this writ petition was taken on file, subject to maintainability. On the same

day, in W.P. No. 20624 of 1994, we directed issue of an interim injunction, restraining the first Respondent, or its agents, assigns, or any person

through it or representing it from exhibiting the film ""KUTRAPATHIRIKKAI"" (CHARGE-SHEET) in any manner whatsoever till 31.8.1994.

We commenced hearing in this writ petition on 25.8.1994 and heard arguments in extenso on the preliminary objection on 25.8.1994 and

26.8.1994. We then decided to view the film and thereafter hear counsel on either side, on inherent merits of their respective cases, so that we

could pronounce our verdict on the merits as well as the preliminary objection, in a consolidated form. In that view, we saw the picture screened

for us specially on 29.8.1994 and thereafter continued hearing the submissions of counsel on either side from 31.8.1994. Since the arguments did

not reach their termination on 31.8.1994, we directed extension of interim injunction ordered by us on 11.8.1994, till 21.9.1994.

Initially, we will take up for our consideration the preliminary objection addressed before us by first Respondent''s counsel regarding

maintainability of the writ petition.

Now, we will delve in depth on the preliminary objection that the Petitioner has no locus standi to initiate this writ petition and that by any

standard, the Petitioner cannot be held to be an ""aggrieved person"".

Mr. G. Vasantha Pai, learned Senior Counsel, raising this preliminary objection submitted that the Petitioner-Board and the Appellate Tribunal,

the second Respondent herein, are parts of a composite body. The Act provides for three remedies (1) direct certification by the Board; (2) on

Board''s refusal to grant a certificate, ""person aggrieved"", who can only be the producer, has a right of appeal before the second Respondent; and

(3) in the event of the Board directing certification, a duty is cast on the Petitioner to issue a certificate for exhibition of the film. He pointed out

Section 5-D(11) to contend that on the order of the Tribunal, the Board shall dispose of the matter in conformity with such order. By reference to

case law, he submitted that the Tribunal has the trappings of a Court and it was exercising a judicial function. If that be so, a subordinate court like

the Petitioner-Board, cannot arrogate to itself and question by way of a writ, in a Court of Law, the verdict of a superior authority. He further

contended that the first Respondent has an inviolable right of freedom of expression and once the Tribunal has chosen to zealously guard that right,

it will not be possible for this Court to interfere on questions of fact unless it found any error in jurisdiction. He pointed out that not only the object

of the Act must be noticed, but the scheme of the Act will also have to be scrutinised. He further urged that the approach of the Petitioner to this

Court with a writ petition, exhibited utter mala fides. He vehemently argued that the compass for interference by this Court was circumscribed and

it cannot sit as a Court of Appeal. Anyhow, he continued that the law is very clear that this Court will be very slow in interfering with the verdict of

the second Respondent-Tribunal. He commented upon the stand of the Petitioner that certain contentions raised before the Tribunal by the

Petitioner herein were not considered by the Tribunal and submitted if such a grievance was bona fide, the same could have been put forth before

the Tribunal by way of a review petition. Mr. Vasantha Pai, with all the force he could command, submitted that the Petitioner-Board was only

peeved now, since its decision stood upset by the Tribunal. He stated that the Board can place before the Tribunal its view, but has no right to

challenge the verdict of the Tribunal.

On the contrary, Mr. V.T. Gopalan, learned Senior Central Government Standing Counsel appearing on behalf of the Petitioner submitted that

the first Respondent himself has impleaded the Petitioner as party-Respondent before the Tribunal and such impleadment was not without

significance. He referred to Section 5-D(11) of the Act and pointed out the following words, ""The Tribunal may, after making such enquiry into the

matter as it considers necessary, and after giving the Appellant and the Board an opportunity of being heard in the matter, make such order"". This

language, according to Petitioner''s counsel, clearly indicated that the Tribunal owed a duty to afford an opportunity to the Board to put forth its

case, in a similar manner as the first Respondent and then make an order in relation to the film as it thought fit. In other words, the submission was

that the first Respondent, as well as the Board were parties before the Tribunal and if that be so, it cannot be contended by the first Respondent,

that the Petitioner is not an aggrieved party, having an inbuilt right to challenge the order of the Tribunal before this Court under Article 226 of the

Constitution of India. of course, to this counsel Mr. Vasantha Pai submitted that the Board had only a limited duty to play by production of record

and nothing more. Mr. Gopalan further contended that a distinction was always made between personal/pecuniary right of a person and the interest

of statutory bodies, which have a duty to see that the provisions of law are conformed as well the interests of the public are safeguarded.

Therefore, the Court will owe a duty to look into the scheme of the Act and find out if the enactment was a social measure brought in, in the

interests of the public, as a reasonable restriction under Article 19(2) read with Article 19(1)(a) of the Constitution, or the Act, was merely

intended to regulate rights of private individuals. He then referred to Section 5-B(1) of the Act and submitted that Article 19(2) stood bodily

incorporated in this section. He then brought to our notice Section 8(2)(m) vesting powers to make rules for any other matter, which is required to

be or may be prescribed, and then took us through Rule 22(9) and Rule 24(9). These two rules are almost similar, though the former Rule refers to

the Examining Committee while the latter Rule concerns itself with the Revising Committee. Under Sub-clauses (f) of Sub-rule (9) of these two

Rules, each member of the Examining Committee or the Revising Committee will have to spell out in clear terms the reason therefor and state

whether he or she considered that the film was not suitable for unrestricted or restricted public exhibition, that is, that the film be refused a

certificate. He also referred to Form VIII, which is common for Rules 22(9) and 24(9), which under numerical ''5'', in Part-B contains the

guidelines. These guidelines have been extracted by the Supreme Court in paragraph 17 in Life Insurance Corporation of India and Union of India

and another Vs. Prof. Manubhai D. Shah and Cinemart Foundation, . He then contended that u/s 5-C(1), a person applying for a certificate under

the contingencies mentioned therein, if aggrieved by any order of the Board, may, within 30 days of the date of such order, prefer an appeal to the

Tribunal. Petitioner''s counsel pointed out that if any other person, other than the producer, was aggrieved, the Act contained no provision for

preferring of an appeal. In that context, he submitted that the Petitioner, even if held to be a non-aggrieved person, has still a right to draw the

attention of this Court to the danger fraught by allowing public exhibition of such a film, which relates to the activities of a banned organisation. He

then submitted that under most of fiscal legislation original authority do have a right to prefer an appeal before the appellate forum. He contended

that the final orders of the Tribunal were certainly amenable to certiorari jurisdiction of this Court. He pointed out that the Petitioner has neither

personal/pecuniary interest nor a rival claim to be presented. Nevertheless, as a responsible statutory body, invested with a duty to see that the

provisions of the Act as well as the guidelines are conformed to, had a duty to bring to the notice of this Court errors apparent in the order of the

Tribunal. In that context, it cannot be argued that the Board is a stranger and cannot take steps to set right a wrong order. He then pointed out the

difference between the Board as such and its duty to constitute Examining Committees and Revising Committees, the views of which will be

binding on the Board. Mr. Gopalan strenuously contended that though it may be embarrassing, the Petitioner was bound to exercise its right in

public interest. It cannot be overlooked that the Petitioner is a statutory body entrusted with a public duty. He then pointed out paragraph 2 of the

reply affidavit on maintainability and contended that on the directions of the Government, the Board has preferred the instant writ petition against

the impugned order of the Tribunal. To this submission Mr. Vasantha Pai took objection that we must not take note of this submission unless the

first Respondent was afforded an opportunity to cross-examine some of the officials of the Union Government, who have sworn to affidavits, either

on the grant of permission by the Union of India to file this writ petition, or/with regard to the nature of arguments advanced by Petitioner''s counsel

before the Tribunal. We do not think it necessary to enter into this controversy, for, sans these details, this writ petition can be disposed of.

On the question of mala fides, it was the case of Mr. Vasantha Pai that the Congress party was behind this litigation and it was anxious to

support one of its party members, who has produced a film on the life of Rajiv Gandhi, and not wanting the fortunes of that film to suffer, they are

behind the efforts taken for non-certification of this film. If we hold that the Petitioner has a right to move for ""certiorari"", or at least it could very

well bring to the notice of this Court serious infirmities in the impugned order, the question of mala fides may not arise to arrive at a decision on the

maintainability, though that aspect may have to be audited, while considering the case on its inherent merits.

The time is ripe now to have a quick-look into the case law available on the subject of ""person aggrieved"". In Ramesh v. Union of India A.LR.

1988 S.C. 775, Petitioner Ramesh happened be a practising Advocate of the Bombay High Court. He approached the Supreme Court by means

of a petition under Article 32 of the Constitution for issue of a writ in the nature of prohibition or any other appropriate order, restraining the

Respondents, namely, the Union of India, the Director-General of Doordarshan, New Delhi, Blaze Advertising Pvt. Ltd., and Govind Nihalani, the

producer, from telecasting or screening the serial titled TAMAS"" and to enforce his fundamental rights under Articles 21 and 25 of the Constitution

and declaring the screening or televising of ""TAMAS"" as violative of Section 5-B of the Cinematograph Act, 1952.

Before the matter reached the Supreme Court, one Javed Ahmad Siddique filed a writ petition in the High Court of Bombay, which was heard

by a single judge, who, while admitting the same, chose to grant a stay of further telecasting of the said serial on television, till further orders. The

Respondents before the Supreme Court challenged the said order before a Division Bench of the Bombay High Court. The two learned judges,

who constituted the Division Bench, saw the complete serial and vacated the stay and it was the Division Bench judgment, which was impugned in

the Special Leave Petition. The Supreme Court mentioned in passing that four episodes of the said serial had already been telecast. It was urged

before the Supreme Court that exhibition of the said serial was against public order and it was likely to incite the people to indulge in commission of

offences and, therefore, was violative of Section 5-B of the Cinematograph Act and destructive of the principle embodied under Article 25 of the

Constitution. It was also contended that the presentation was likely to promote or attempt to promote, on grounds of religion, caste or community,

disharmony or feelings of enmity, hatred or ill-will among different religious, racial, language, regional groups or castes or communities and further

would be prejudicial to the maintenance of harmony between such groups and would incite people to participate or train them to the use of criminal

force or violence, or actually participate in such criminal acts. In short, it was argued that the serial was prejudicial to national integration. We may

have to refer to this decision over again when we consider the inherent merits of the order of the Tribunal now challenged before us, but suffice at

this stage to refer only to a part of the observations made by the Supreme Court, which -read as hereunder:

We, however, accept the position that the Petitioner has a right to draw attention of this Court to ensure that the communal atmosphere is kept

clean and unpolluted. He has done well to draw attention to this danger.

Irrespective of the Petitioner being a person aggrieved, which question we will presently consider, it is certainly possible in law for the Petitioner to

draw our attention to the order of the Tribunal, while underlining that it has a duty to see that the provisions of the Act as well as the guidelines

stood conformed to, keeping in view the ultimate public interest.

u/s 253(2) of the income tax Act, 1961, the Commissioner may, if he objects to any order passed by a Deputy Commissioner (Appeals) or, as

the case may be, a Commissioner (Appeals) under certain sections, direct the assessing officer to appeal to the Appellate Tribunal against the

order. u/s 253(1)(a), any Assessee aggrieved by such orders, may appeal to the Appellate Tribunal. u/s 254 of the Act, the Appellate Tribunal,

after giving to both the parties to the appeal an opportunity of being heard, pass such order thereon, as it thought fit. Similarly, u/s 256 of the Act,

the Assessee or the Commissioner, may, within 60 days prescribed in that section, require the Appellate Tribunal to refer to the High Court any

question of law arising out of such order. A reference to the Supreme Court has been made feasible u/s 257 of the Act.

The concept of an Appellate Tribunal hearing the assessing authority at the hearing of any appeal, forms part of Section 37 of the Tamil Nadu

General Sales Tax Act.

u/s 35-B(2) of the Central Excise and Salt Act, 1944, the Collector of Central Excise, may if he was of the opinion that an order passed by the

Appellate Collector of Central Excise u/s 35 or the order passed by the Collector (Appeals) u/s 35-A, was not legal or proper, direct any Central

Excise Officer authorised by him in that behalf, to appeal on his behalf to the Appellate Tribunal, or, as the case may be, to the Customs and

Excise Revenues Appellate Tribunal.

u/s 129-A(2) of the Customs Act, 1962, the Collector of Customs, if he was of the opinion that an order passed by the Appellate'' Collector

of Customs u/s 128, or the order passed by the Collector (Appeals) u/s 129-A, was not legal or proper, direct preferring of an appeal on his

behalf to the Appellate Tribunal by a proper officer.

It is not as though the concept of preferring of appeals by the original authority is something abhorrent. of course, Mr. Vasantha Pai was right

in contending that in the aforestated enactments special provisions stood enshrined in the Act, providing for appeals by the original authorities,

which provisions were conspicuously absent in the Cinematograph Act.

Under Section 5-C of the Cinematograph Act, any person applying for certificate in respect of a film and who stood aggrieved by any order of the

Board refusing to grant a certificate or granting only an ""A"" certificate or an ""S"" certificate or a ""UA"" certificate or directing the applicant to carry

out any excisions or modifications, may, prefer an appeal to the Tribunal. The Section naturally does not provide any right of appeal to the Board,

which in effect, had passed orders refusing certification or granting partial certification based on the opinion of the Examining or Revising

Committees. It is possible to differentiate between the Board as such and the two Committees, namely, the Examining Committee and the Revising

Committee, which the Board constitutes, for offering of their opinion as the case may be, for certification or otherwise of the film, for which

certification stood requested.

That the Board is a necessary party before the Tribunal, is clear from Section 5-D(11) of the Act, which so far as it is relevant in this context,

reads as follows:

The Tribunal may, after making such inquiry into the matter as it considers necessary, and after giving the Appellant and the Board an opportunity

of being heard in the matter, make such order in relation to a film as it thinks fit....

In an appeal by an aggrieved person, who, u/s 5-C of the Act is the person applying for certification, the Board has a right to be heard and the

Tribunal has a duty cast on it to provide the Board with an opportunity of being heard. It is only under that contingency, before the Tribunal, the

first Respondent had made the Board as party-Respondent to the appeal preferred by it u/s 5-C of the Act. We are not prepared to agree with

Mr. Vasantha Pai, learned Senior Counsel, that the Board was made a party before the Tribunal by the first Respondent, only because the

Tribunal was duty bound to call for records from the original authority and to facilitate that administrative process, the Board was shown as a

Respondent. The further contention that only for clarification, the Board had to be represented before the Tribunal does not make any impact on

us, more so, when, u/s 5-D(11), the legislature had made it clear, the mandatory need to afford an opportunity to the Board ""of being heard"". That

an order passed under the provisions of the Cinematograph Act, is amenable to certiorari jurisdiction of this Court can admit of no doubt and if any

authority is required, useful reference can be found in Hiralal M. Shah Vs. The Central Board of Film Certification Bombay and Others, .

In Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, , the question if the State Bar Council was a person aggrieved to maintain an

appeal u/s 38 of the Advocates Act, came in for consideration. The Supreme Court held that the Bar Council was a person aggrieved for certain

reasons spelt out by it. First, the words ""person aggrieved"" in the Act were of wide import in the context of the purpose and provisions of this

statute. In disciplinary proceedings before the Disciplinary Committee, there was no lis and there were no parties (M.H. Beg, J. contra only on the

point of existence of lis between the Bar Council and the delinquent)1 advocates).

Therefore, the word ""person"" would embrace the Bar/Council of the State. Secondly, the Bar Council was a ""person aggrieved"", since it

represented the collective conscience of the standards of professional conduct and etiquettes. The Bar Council acts as the protector of the purity

and dignity of the profession. Thirdly the function of the Bar Council in entertaining complaints against advocates was when the Bar Council had

reasonable belief that there was a prima facie case of misconduct, that a disciplinary committee was entrusted with such enquiry. Once an inquiry

commenced, the Bar Council had no control over its decision. The Bar Council may entrust it to another Disciplinary Committee or the Bar

Council may make a report to the Bar Council of India. This indicated that the Bar Council was all the time interested in the proceedings for the

vindication of discipline, dignity and decorum of the profession. Fourthly, the decision of a disciplinary committee can only be corrected by appeals

as provided under the Act. When the Bar Council initiated proceedings by referring cases of misconduct to its disciplinary committee, the Bar

Council, in the performance of its functions under the Act, was interested in the task of seeing that the advocates maintained the proper standards

and ''etiquette of the profession. Fifthly, the Bar Council was vitally concerned with the decision, in the context of the functions of the Bar Council.

The Bar Council would have a grievance if the decision prejudiced the maintenance of standards of professional conduct and ethics.

That was aiase wherein the Bar Council of Maharashtra had issued notice u/s 35 of the Advocates Act to the Respondents before the

Supreme Court. The Notice was described as a suo motu inquiry against the Respondents. The Bar Council constituted a disciplinary committee

and the said disciplinary committee heard evidence and ultimately, after nearly four years, found the Respondents guilty of conduct which seriously

lowered the reputation of the Bar in the eyes of the public. The disciplinary committee directed that the Respondents would stand suspended from

practising as Advocates for a period of three years. Respondents therein preferred appeals before the Bar Council of India. They impleaded the

Bar Council of Maharashtra as the Respondent. The disciplinary committee of the Bar Council of India allowed the appeals and set aside the

orders of the disciplinary committee of the Bar Council of Maharashtra. While setting aside the orders of the Bar Council of Maharashtra, the

disciplinary committee of the Bar Council of India stated that the Bar Council of Maharashtra had not appeared even though they had started the

proceedings suo motu. All that they could say was that they expected the Bar Council of Maharashtra to be represented in the appeal, because

proceedings were started suo motu.

While considering the meaning of the words ""any person aggrieved"" by an order made by the disciplinary committee of the Bar Council of

India, occurring in Section 38 of the Advocates Act, the Supreme Court noticed that the Advocate-General of the State or the Attorney General

of India, as the case may be, have been given specific rights of appeal, those provisions having been introduced by amendment made in 1974 by

amending Act 50 of 1973.

We cannot overlook that the concepts of ""locus standi"" and ""person aggrieved"" have been given the widest possible meaning by several

pronouncements. It is true that the words ""person aggrieved"" have been used in Section 5-C of the Cinematograph Act only with respect to a

person applying for a certificate. That the word ""person aggrieved"" will have a wider spectrum of significance, is clear from Section 5-D(11) of the

Act. We are looking into the law laid down by the Supreme Court in Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, in the context

of the possibility of the Bar Council, which initiated the disciplinary proceedings suo motu, challenging the appellate order of the Bar Council of

India, while it was sought to be made out before the Supreme Court, that the authority subordinate in the hierarchy of vertical exercise of powers,

arrogating to itself pleading existence of a right to challenge the verdict of a superior authority in a third forum.

It is an accepted proposition that the meaning of the words ""person aggrieved"" will have to be ascertained with reference to the purpose of the

provisions of the statute. As observed by the Supreme Court, sometimes, it is said, that the words ""person aggrieved"" correspond to the

requirement of locus standi, which arises in relation to judicial remedies. After considering the restricted meaning given to the words ""person

aggrieved"" in certain statutes, which provided remedies for the protection of private legal rights, the Supreme Court stated that a mere liberal

approach was required in the background of statutes which do not deal with property rights, but dealt with professional conduct and morality. The

role of Bar Council under the Advocates Act was comparable to the role of guardian in professional ethics. The words ""person aggrieved"" in

Section 37 and 38 of the Advocates Act, according to the Supreme Court, were of wide import and should not be subjected to a restricted

interpretation of possession or denial of legal rights or burdens of financial interest. The test was whether the words ""person aggrieved"" include a

person who has genuine grievance, because an order stood made, which prejudicially affects his interest. Thereafter, the Supreme Court traversed

into the arena of finding out whether the Bar Council had a grievance in respect of an order or decision affecting the professional conduct and

etiquette. The conclusion was that the Bar Council had no personal or pecuniary interest, but it had the statutory duty and interest to see that the

rules laid down by the Bar Council of India in relation to professional conduct and etiquette were upheld and not violated. The Bar Council acted

as the sentinal of professional code of conduct and was vitally interested in the rights and privileges of the Advocates as well as the purity and

dignity of the profession. After holding that the Bar Council acts as the custodian of the high traditions of the noble profession, the Supreme Court

stated that if any decision of the disciplinary committee of the Bar Council of India was, according to the State Bar Council, such as would lower

the standards and imperil the high traditions and values in the profession, the State Bar Council was ""an aggrieved person"" to safeguard the

interests of the public, the interests of the profession and the interests of the Bar. Beg, J. in the course of his reasoning has observed as follows:

But if the Bar Council has separable interest as a guardian of the rights and privileges of the members of the Bar, specifically mentioned by Section

6(1)(a) of the Act, there is no reason why a right to represent this interest before its own Disciplinary Committee as well as before the Bar Council

of India, on an appeal u/s 37 of the Act, or on the further appeal to this Court u/s 38 of the Act, should be denied to it.

Learned judge construed the dual role of the State Bar Council in its executive capacity and its functioning as the judicial wing, through its

disciplinary committee.

V.R. Krishna Iyer, J., stated as follows on the expression ""person aggrieved:

Precedental erudition and traditional approaches notwithstanding, the key to the meaning of the expression in question, lies in plain English plus the

social feel of the statute and the public commitment of the legal profession.

Again, the learned judge stated:

This conspectus will show what a vibrant and responsible role the Bar Council has to play at the State and national levels and any interpretation

which will detract from this supervisory status of the Bar Council will be incongruous with the founding creed of the institution. The Bar is not a

private guild but, by bold contract, a public institution committed to public justice and are on a public service.

The observations of Professor H.W.R. Wade, stood quoted in the aforestated decision and they read as hereunder:

In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of the actio popularis. This is because it

looks beyond the personal rights of the applicant; it is designed to keep the machinery of justice in proper working order by preventing inferior

tribunals and public authorities from abusing their powers.

On the law laid down by the Supreme Court, we are able to comprehend the feasibility of exercise of a right, in public interest by the Petitioner

to challenge the order of the Tribunal, now impugned before us. In Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, ,

on the meaning-of the words ""person aggrieved"", the Supreme Court stated as follows:

Is the statute, in the context of which the scope of the words ""person aggrieved"" is being considered, asocial welfare measure designed to lay down

ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?

It is possible to hold that the Petitioner is a statutory body entrusted with a public duty and that would make all the difference. It may be that

sometimes, such exercise of rights may appear embarrassing, but the majesty of law will have to ultimately prevail.

In Maharaj Singh Vs. State of Uttar Pradesh and Others, , V.R. Krishna Iyer, J., had the following observations to make:

Where a wrong against community interest is done, ''no locus standi'' will not always be a plea to non-suit an interested public body chasing the

wrong-doer in Court. In the case before us, Government, in the specious sense of ''person aggrieved'' is comfortably placed.

Learned judge quoted the observations of Lord Denning in Attorney General of Gambia v. Peria Serr N''Jie 1961 A.C. 617 which read as

hereunder:

The words ''persons aggrieved'' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a

mere busy body who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order

has been made which prejudicially affects his interests.

Petitioner is in a more comfortable position, since it has chosen to place before this Court the decision of the Tribunal, while challenging it,

alleging that the impugned order, if allowed to stand, would be against public interest. The merit of such contention may have to be decided

separately,, but entertaining of this writ petition cannot be blocked at the threshold on the premise of lack of locus standi. Mr. Vasantha Pai did

refer to several pages in the decision of the Supreme Court in Associated Cement Companies Ltd. Vs. P.N. Sharma and Another, , to contend

that Tribunals occupied a special position of their own under the scheme of our Constitution and it was not really possible or even expedient to

attempt to describe exhaustively the features which are common to the Tribunal and the Courts and the features which were distinct arid separate.

The basic and fundamental feature, which was common to both the Courts and the Tribunals was that they discharge judicial functions and exercise

judicial powers which inherently vest in a sovereign State. The attempt made by Mr. Vasantha Pai was to impress upon us that the subordinate

Court should not be allowed to arrogate itself to question, by way of a writ of certiorari in this Court, the order passed by a superior authority. The

principal point of law which arose in that appeal by Special Leave was whether the State of Punjab exercising its appellate jurisdiction under a Rule

of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952, was the Tribunal within the meaning of Article 136(1) of the

Constitution. It ultimately held that it was the State Government, which exercised its appellate jurisdiction-under the rule, and it was a Tribunal

within the. meaning of Article 136(1) and therefore the appeal brought before that Court against the impugned appellate order was competent. This

decision does not appear to have considered the proposition, if the original authority would be competent to file an appeal. For answering the issue

raised on maintainability, this decision may not be of any help.

The following observations of the Supreme Court in K.A. Abbas Vs. The Union of India (UOI) and Another, were brought to our notice by

first Respondent''s counsel:

Censorship in India (from which pie-censorship is not different in quality) has full justification in the field of exhibition of Cinema films and is justified

under the Constitutions. Section 5-B(2) authorises the Central Government to issue such-directions as it may think fit setting out the principles

which shall guide the authority competent to grant certificates under the Act in sanctioning films for public exhibition. The Central Government in

dealing with the problem of Censorship will have to bear in mind the principles stated in Sub-section (1) The Central Government''s Regulations

are there for consideration in the light of the guaranteed freedom and if they offend substantially against that freedom, they may /be struck down.

But as they stand they cannot be challenged on the ground any recondite theory of law-making or a critical approach to the separation of powers is

infringed. The general principles which are stated in the directions, seek to do no more than restate the permissible restrictions as stated in Article

19(2) and Section 5-B(1) of the Act. They cannot be said to be vague at all.

The items mentioned in the directions are not by them-selves defective. The real flaw in the scheme of directions is total absence of any direction

which would tend to preserve art and promote it. Such directions need to be included. Whether this is done by Parliament or by the Central

Government it hardly matters. The whole of the law and regulations under it will have always to be considered and if the further tests laid down in

Ranjit D. Udeshi Vs. State of Maharashtra, are followed, the system of censorship with. the procedural safeguards, that there must be a

reasonable time-limit fixed for the decision of the authorities censoring the film, and that the appeal should lie to a Court or to an independent

Tribunal and not to the Central Government, will make censorship accord with our fundamental law.

It is only after rendering of this decision that an appellate power to the Tribunal was brought in as a part of the Cinematograph Act. While the

producer has a right for freedom of expression under Article 19(1)(a) of the Constitution, H can reasonably be restricted as stated in Article 19(2).

It is evident that the permissible restrictions as stated in Article 19(2) have been virtually incorporated in Section 5-B(1) of the Act. This again may

be a question which touches upon the merits of the case and will not arise in the area of maintainability.

Even at this stage, it was urged with all'' vehemence by Mr. Vasantha Pai, learned Senior Counsel, that the delay in taking action, by moving a

writ of certiorari, after issuing a certificate in terms of the order of the Tribunal, indicated utter mala fides. This will have to be necessarily relegated

for consideration while we take up the inherent merits of the verdict of the appellate Tribunal allowing certification of the film with certain cuts

suggested by it.

The decision of the Supreme Court in The Registrar of Trade Marks Vs. Ashok Chandra Rakhit Ltd., was then placed by first Respondent''s

counsel to draw our attention that, once the Tribunal had exercised its discretion, interference by the High Court cannot be readily done, since the

process-will have to be slow and it will be the duty of the High Court to consider whether the Registrar had really gone wrong as to make it

necessary to interfere with this direction. This decision, again will have to be treated as a trespasser in the field of consideration of the question of

maintainability, though it may have a bearing on the next question relatable to the merits or otherwise of certification of the film.

Mr. Vasantha Pai then contended that there were two vital distinctions between the Bar Council and the Censor Board in that the supervision

over the Advocates was a continuous process and not for one instance. The jurisdiction and obligation were so intermingled. The second

distinction was that censorship of film is undertaken only at one stage and not at different stages, as provided under the Advocates Act. A

reference was made to paragraphs 23, 24, 25, 30, 39 and 40 in the decision of the Supreme Court in Bar Council of Maharashtra Vs. M.V.

Dabholkar and Others, by Mr. Vasantha Pai. The crux of the submission was that the Bar Council was not the same body as the Disciplinary

Committee, though the Bar Council alone can initiate a proceeding. Most of the passages pointed out by Mr. Vasantha Pai, in our view, indicate

the position contra and all that would be required to appreciate the law laid down by the Supreme Court in the aforestated case, is to substitute the

Board wherever the Bar Council stands referred.

Mr. Vasantha Pai again referred to the observations of the Supreme Court in Adi Pherozshah Gandhi Vs. H.M. Seervai, Advocate General of

Maharashtra, Bombay, and submitted it the Advocate-General cannot be held to be a party to the lis and at best when he chooses to render

assistance in a proceeding by appearing at the hearing and putting before the Disciplinary Committee the facts in their proper perspective and

advancing the proper inference to be drawn therefrom, there was an end of the matter so far as he was concerned. He cannot have any grievant,

because the decision of the Bar Council is against his submission or not to his liking. We cannot ignore that there was an amendment to the

Advocates Act only after rendering of this decision and the Advocate-General was afforded in law right to prefer an appeal Mr. Vasantha Pai

contended that even after amendment, all that the Advocate-General could do will be to prefer an appeal and nothing more, for he cannot take

over the position of the Bar Council. We have already referred to the judgment of the Supreme Court m Ramesh Dalal Vs. Union of India (UOI)

and Others, , wherein the Supreme Court has accepted the position that the Petitioner therein had a right to draw the attention of that Court to

ensure that the communal atmosphere was kept clean and unpolluted.

The Supreme Court further observed that the Petitioner therein had done well to draw the attention of the Supreme Court to that danger. The fact

therefore remains that when a public duty is cast on the Petitioner-Board and it has to zealously guard the guidelines provided under the Act in

public interest, it would be justified in bringing to the notice of this Court the serious infirmities in the order of the Tribunal, which tend to shatter the

object and the scheme of the Act. It was pointed out by first Respondent''s counsel that no amendment was introduced to Cinematograph Act as

was done in Advocates Act and therefore no parallel can be drawn between the provisions of Advocates Act and the provisions of

Cinematograph Act. We have already considered in extenso the effect of Section 5-D(11) of the Cinematograph Act, whereunder the Tribunal has

to afford an opportunity to the Petitioner Board to put forth its case. When the law is clear, it would suffice for us to say this much and nothing

more.

First Respondent''s learned senior counsel then submitted that Petitioner''s counsel had no right to argue before this Court that certain

Contentions raised by him before the Tribunal were neither adverted to nor considered and therefore he was entitled to plead for issue of a

certiorari. The contention was that if the Tribunal had omitted to consider any salient submission made, the counsel for the Board owed a duty to

have placed before the Tribunal such deficiency and prayed for reconsideration, at least to the extent of the submissions overlooked. Not having

done so, the Petitioner-Board would be estopped from putting forth the Contention that the Tribunal had omitted to advert to certain salient

contentions. In this context, Petitioner''s Counsel drew our attention to the judgment of Balakrishna Ayyar, J., in Virabhadra Rao v. Gokalchand

Chunnilal 1951 M.W.N. 327. Learned judge observed therein that a statement in a judgment or order as to what had taken place in Court was

conclusive and cannot be allowed to be controverted by an affidavit or otherwise and if a part was aggrieved by what he considered a wrong

statement in a judgment, he will apply to the very same judge for review. The legal position is clear and there is no scope, whatever, for

divergence. However, it is not the case of the Petitioner-Board that any wrong statement forms part of the order of the Tribunal, but the claim is

that the Tribunal had overlooked very many material features, which are apparent on the record placed before it. For the same purpose, Mr.

Vasantha Pai relied upon the judgment of the Supreme Court in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, wherein it was

observed that the judges'' record was conclusive and that neither lawyer nor litigant may claim to contradict it, except before the judge himself, but

nowhere else. The Court could not launch into inquiry as to what transpired in the High Court. The nature of challenge made will always be a

question of fact and there cannot be a second opinion that neither lawyer nor litigant can contradict judges'' record, which may be held to be

conclusive. It is also settled law, that if material evidence stood overlooked and error apparent on the face of the record was clear, there will be

justification for interference, for, they would have an effect on the exercise of jurisdiction by the Tribunal and a question of law, which goes to the

root of the matter, would thereby be evident.

Again, it was emphasised by Mr. Vasantha Pai that all that the Board can do before the Tribunal was to place its view and nothing more and it

had no right to challenge the order of the Tribunal. We have said enough on this issue, and we do hot intend reiterating over again our definite

conclusions.

Reference was then made by first Respondent''s counsel to the decision of the Patents Appeal Tribunal In the matter of Bernard Dirks'' v.

Standard Telephones and Cables Ltd. 1960 R. PJD. TM. 1 where Mr. Justice Lloyd Jacob observed that a hearing officer should not be called

upon to consider the validity of statutory instruments issued by the Board of Trade or to review the exercise of his discretionary powers by the

Comptroller. The further observations, which were brought to our notice, read as hereunder:

I find it no less inconceivable that the Legislature intended a Hearing Officer to decide upon the validity of rules issued by the Board of Trade of

which the Patent Office is one department or to review in relation to any discretionary powers thereby given to the Comptroller-General their

exercise by his Official Superiors The complexity of the argument and the allegations of ultra vires actions upon which such argument is based have

led me to conclude earlier in this decision that the Legislature cannot have intended that, on opposition, the Comptroller-General should have to

pass upon the propriety of the authority under which he has quoted or of such extension of time as he has previously sanctioned.

The challenge before us by the Board has a different complexion altogether and the duty cast on it will have to be read in a conjunction with the

provisions of Section 5-D(11) of the Cinematograph Act. This decision of Patents Appeal Tribunal cannot alter the legal position, in the instant

case.

Much emphasis was laid by Mr. Vasantha Pai on the law laid down by CEGAT, West Regional Bench, Bombay in 1984 ECR 990 , to

impress upon us that a Collector of Custom would not fall within the ambit of ""any person aggrieved"". We have already referred to certain

provisions of the Customs Act, income tax Act, Central Excise and Salt Act and the Sales-Tax Act, to hold that under certain circumstances, in

law, appeal by the original authority stood provided by the respective enactments and therefore there/ was nothing abhorrent about the challenge

made before a Court by the original authority, on an illegality that was apparent. A decision of a Tribunal cannot be held to be binding on this

Court. Though Editor''s comments cannot have a role to play in arriving at our decision, it will be relevant to note that in respect of this decision,

Editor''s comments at the end of the decision show that the correctness of this decision was open to doubt, more so, after rendering of its view on

person aggrieved"" by the Supreme Court in Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, which was neither stated, nor

considered by the Tribunal. Such orders, in our view, as the one placed before us, cannot have any precedental value, as far as this Court is

concerned.

It will be relevant at this stage to extract the following observations of the Supreme Court in Bar Council of Maharashtra Vs. M.V. Dabholkar

and Others, :

If we are holding that a Bar Council, dissatisfied with a decision of its Disciplinary Committee, can appeal against it, we have to, I think, as its

logical corollary also hold that it is a party to a lis. But opinion that it is a ""person aggrieved"" within the meaning of that expression as used in

Sections 37 and 38 of the Act (Advocates Act) necessarily implies that.

In view of Section 5-D(11) of the Act, we are bound to conclude that the Board is a party to the lis and so, logically it would be ""a person

aggrieved"". As rightly pointed out by Mr. Gopalan, learned Senior Central Government Standing Counsel representing the Petitioner,

Cinematograph Act 1952 contains several provisions regarding examination f films by Examining Committee and the Revising Committee, backed

up by relevant rules. Procedure prescribed is quite comprehensive and it can be compared to the procedure prescribed under the advocates Act.

It is on this parameter of reasoning bat we have earlier observed that all that would be required would be to substitute the Petitioner-toward,

wherever the Bar Council stood referred to Bar Council of Maharashtra v. M.V. Dabholkar A.LR. 1975 S.C. 2092. Petitioner''s counsel referred

to the judgment of Supreme Court in S. Rangarajan Vs. P. Jagjevan Ram and Others, to impress upon lis that Union of India did take up the

matter before the supreme Court challenging the judgment of the division Bench of this Court revoking certificate issued to a Tamil film called

ORE ORU GRAMATHILE"" (In one village), for public exhibition. The purpose for reference to this decision was o emphasise that the Union

Government has a right to challenge the impugned order and the cause-title to the writ petition would clearly show that the Central Board of Films

Certification was a part of Ministry of Information and Broadcasting, government of India. We have already noticed that the first Respondent''s

counsel has taken serious abjection to the stand of the Petitioner, that the Union Government, had authorised, preferring of this writ petition and to

our minds, it will be totally unnecessary to get into this controversy, for we have already definitely concluded, that the Petitioner will certainly-be a

person aggrieved"" and that in any event, once it had chosen to bring to the notice of this Court the serious legal infirmities apparent in the order of

the Tribunal, then this Court would be justified in suo motu scrutinising the validity or otherwise of the impugned order On the entire material made

available for consideration. Our aforestated conclusion will put an end; to the preliminary objection and how we have to embark upon the inherent

merits of the order passed by the Tribunal and sans the hurdle of maintainability, which now stands cleared.

On merits, Mr. V.T. Gopalan, Senior Central Government Standing Counsel, submitted that the impugned order of-the Tribunal except stating

in paragraph 3 of its order that the Examining Committee unanimously recommended refusal of certification, which was unanimously upheld by the

Revising Committee, had not considered or accepted the inherent merits of the findings recorded by these committees made available in the file

submitted and made further explicit in the order of the Board, which ought to have attracted its attention, more so, when it was disposing of an

appeal, wherein factual and legal details required scrutiny. He referred to a decision of the Supreme Court to contend if relevant pieces of evidence

stood completely overlooked by the Tribunal, it would indicate an error of law apparent on the face of record, which would justify issue of a

certiorari. He then submitted that since the first Respondent, as the Appellant, had chosen to challenge the verdict of the Board, the Tribunal owed

a duty to have analysed and audited the reasonings, which led to the verdict of the Board and ultimately concluded as to how the order of the

original authority was either liable to be upheld or quashed. The Tribunal also owed a duty to have posed before itself the relief to which the parties

were entitled to. By reference to certain other authorities, which we will refer to a little later, Petitioner''s counsel contended that if the appellate

jurisdiction stood not exercised in a manner in which it ought to have been exercised, it must be held that there was an error in law, which would

justify interference by means of a certiorari. Petitioner''s counsel submitted that it was rather strange that the order of the Tribunal does not refer to

any of the contentions advanced by the Appellant before it (first Respondent herein) except mentioning towards the fag end of the order as follows:

We may add that the Appellant''s Learned Counsel stated that while no cuts/reductions were called for, the Appellant would abide by the norms in

the event of our imposing them.

Continuing his submissions, Petitioner''s counsel urged that the Tribunal could not have ignored certain provisions of law taken note of by the

original authority. He pointed out that the Tribunal was aware, as was evident from paragraph 5 of its order, that the hand of LTTE, a banned

organisation, was suspected, but still had not adverted to and/given a finding as to the impact of the ideals of a banned organisation being projected

in the impugned film. In other words, he submitted that the law connected with the banning of this outfit, would be a relevant issue, which could not

have been by-passed by the Tribunal. Petitioner''s counsel then contended that though the Tribunal had referred to certain arguments advanced on

behalf of the Board, they were not total and complete and it would be odd for the first Respondent''s counsel to suggest that the Petitioner ought to

have approached the Tribunal with this grievance, for the purpose of review, when it cannot be disputed that on pronouncement of its orders, the

Tribunal would become functus officio. After conceding that it would be the duty of the Petitioner to discharge its onus, that in view of provisions of

Article 19(2) of the Constitution getting attracted, the first Respondent had to be denied the right available to him under Article 19(1)(a) of the

Constitution, he pointed out that the first Respondent had not sought to project his own views in the picture and added that it was expression of

view of the first Respondent, which would require protection under Article 19(1)(a). Petitioner''s counsel referred to paragraph 10 of the impugned

order, wherein the Tribunal has observed as follows:

Further, in the matter before us, unlike the case before the Supreme Court, the producer is not even projecting his own message. What he is

projecting is, in Mr. Gopalan''s own words, reproduced by us in para 5 above,'' a total simulation'' of the events that actually happened without

injecting therein his own likes, dislikes or prejudices, personal or political. In a word what the producer seeks to do is to place before the public a

true account of what has passed into history.

Again, in paragraph 12, the Tribunal has observed as hereunder:

We again reiterate that unlike the matter before the Supreme Court - in the instant case before us, all that the producer does is merely to project

the facts ant events as they actually happened.

Contending about the attributes of a fundamental right, Petitioner''s Counsel submitted that such a right would take in its fold the right to inform

and a right to be informed and in that context posed a question as to whether a banned organisation had a right to inform its objectives in

commission or crimes and then urge that such projection requires protection under Article 19(1)(a) of the Constitution Thereafter, Petitioner''s

counsel referred to various portions of the script, which we will go into in detail a little later after listing out the arguments advanced by either

counsel. After pointing o�t several portions of the script, projecting conspiracy, modus operandi and subsequent achievement of the commission

of crime, by the banned outfit, Mr. Gopalan contended that though it is the definite case of the Board that the impugned picture sought to project

the LTTE, that had not been objected to in the counter-affidavit filed by the first Respondent. Mr. Gopalan questioned as to whether what cannot

be permitted directly, could be permitted indirectly, through the powerful medium of cinema. He submitted that if the guidelines provided under the

Act and Rules have been observed before certification of the film or the provisions of law stood conformed to would certainly be justiciable. A

reference was then made to the order of the Unlawful Activities (Prevention) Tribunal, in In re: Liberation Tigers of Tamil Eelam (LTTE)

pronounced by Mr. Justice P.N. Nag and published in the Gazette of India Extraordinary Part II Section 3, Sub-section (ii), dated November 20,

1992, from page 2 to 9. The said Tribunal has observed as follows:

In these facts and circumstances, I am of the firm view that the Central Government has shown sufficient cause for declaring the LITE as an

''unlawful association'' and such a declaration accordingly is required to be confirmed. The Act contemplates only the Association, which is being

banned u/s 3 of the Act, which is entitled to show cause. Therefore, LTTE alone is entitled to be heard in the matter. Only LTTE through its own

office-bearers could represent against the notification and not the so-called ''International Secretariat''. Moreover, this organisation has not made its

submission in a sworn statement In the light of what is discussed above, I am of the firm opinion that the Central Government has shown sufficient

cause for declaring the LTTE as an unlawful association under the Act and the same was necessitated in national interest. The declaration made by

the Central Government vide Notification dated 14-5-1992 is, therefore, hereby confirmed.

Again by Notification issued by Ministry of Home Affairs dated 14.5.1994 in its Gazette Extraordinary Part II, Section 3, Sub-section (ii), the

Central Government declared LTTE, to be an unlawful association and directed that the said notification shall subject to any order that may be

made u/s 4 of the said Act, have effect from the date of its publication. In that Notification, Sub-clause (d) reads as follows:

LTTE has established strong presence to secure forced release of its cadres from State''s custody in Tamil Nadu.

The argument was that the trial in what is widely known as Rajiv Gandhi Assassination case, was pending before the Designated Court, Madras

and it was those in confinement in prison in respect of the said case, belonging to LTTE cadre, whose forced release from State''s custody, has led

to a, strong presence of the LTTE in Tamil Nadu. According to Mr. Gopalan, the first Respondent had no message to be conveyed to the public,

but was bent upon portraying purely and simply the objectives of an unlawful association and a banned outfit. He pointed out the manner in which

the impugned film projected extinguishing of all the adversaries by the banned outfit and its projection of its objective that its duty did not end with

the assassination of Rajiv Gandhi and that its next target was the Chief Minister of Tamil Nadu. He further submitted that picturisation of the Chief

Minister in the film completely resembled the Chief Minister of Tamil Nadu. The picture had again projected the abortive attempt made on the life

of the Chief Minister. He emphatically argued that as an aftermath, public tranquility will be affected, for, the assassination of the late Prime

Minister was sought to be resurrected in the film. He took pains to impress upon us that the modus operandi of the banned organisation in crime

commission, was the main fabric of the film and as such this projection cannot be compared with the compensation claim made in the Bhopal

Tragedy case. He submitted that the test of reasonableness will depend upon the facts and circumstances of the case and in the instant case the

security of the State, public order, decency and morality were involved and it was a textbook example, where the provisions of Article 19(2) of the

Constitution stood attracted. He also submitted that apart from the trial pending before the Designated Court, reference stood made to Mr. Justice

Jain Commission by the Union Government, which was also pending consideration and when the matter was subjudice, projection of the instant

film would even amount to contempt of Court. He submitted that passions will be rekindled and aroused and the manner in which political leaders

have been portrayed clearly picturising their identity, would lead to crossing of swords, necessarily resulting in violence. It was incitement for

commission of offences, which would affect the security of the State. He then argued that this case has no parallel and if witnesses to the

prosecution in Rajiv Gandhi Assassination case were to see this film they would become aware as to how the adversaries were done away with,

which was bound to affect the prospects of the pending trial. He submitted that there was lot of difference between flashing of news soon after the

occurrence or its having been exhibited in the news track, for this picturisation exhibited day-in-and day-out would be virtually enacting ceaselessly

the assassination of Rajiv Gandhi over again, while proclaiming the objects, the scheme and the ultimate achievement of the objects, as well as the

scheme, by a banned organisation. He then argued that the love story projected in the film was only a camouflage to focus a banned outfit. It will

be the duty of the Court to look into the overall impact of the film on the public mind. He also contended that post-justification of subsequent

events cannot be allowed. Extraneous and irrelevant matters will have to be omitted from consideration. This was a case of a terrorist organisation-

banned outfit, attempting to create chaos and confusion.

Mr. Gopalan referred to the Notification dated 23rd August, 1991 issued by Ministry of Home Affairs appointing Mr. Justice Jain as a

Commission of Inquiry to make an inquiry with respect to the following matters:

(a) the sequence of events leading to, and all the facts and circumstances relating to, the assassination of Sri Rajiv Gandhi at Sriperumbudur (other

than the matters covered by the terms of reference for the Commission of Inquiry headed by Shri Justice J.S. Verma);

(b) Whether any person or persons or agencies were responsible for conceiving, preparing and planning the assassination and whether there was

any conspiracy in this behalf and, if so, all its ramifications.

On the basis of this notification, Petitioner''s learned Senior Counsel submitted that Clause (b) of the notification, on which inquiry was pending,

would cover the activities of the LTTE, the banned organisation and hence when a Commission of Inquiry was pending, the first Respondent would

not be justified in projecting the ideals of the banned organisation.

Countering these contentions, Mr. G. Vasantha Pai, learned Senior Counsel representing the first Respondent, submitted that Thiru

Ramakrishnan was present before the Appellate Tribunal, when arguments were advanced, but he had not chosen to file a supporting affidavit, as

to all that had happened during the process of hearing before the Tribunal. He pointed out that the order the Tribunal was made on 24-6-1994 and

certification by the Board was made on 25-7-1994. It was after a long delay that the Petitioner had chosen to move this Court byway of this writ

petition and he urged that preferring of the writ petition after a delay of eight days on 4.8.1994, after certification, and over 38 days after the

impugned order was passed, would certainly suffice to project mala fides of the Petitioner. He vehemently contended that all that was sought to be

projected in the film, regarding Rajiv Gandhi assassination, had already been published in the newstrack as well as in a variety o dailies and

weeklies including ""Sunday"" and ""Indu Today"" in June 1991. A matter of public knowledge through the news media for over one year has only

been projected in the impugned film. Most of the shots were taken as stills. His contention was that ii the news media could publish all about

assassination of late Rajiv Gandhi, projection of this film alone cannot be faulted. He contended, that if appreciated in the correct context, the film

was in defence of the police, and the portrayal was, of the meticulous duties performed by the police force. In other words, this social picture was

showing the bravery of the police personnel and their discharging their duties against odds even when the volunteers of the Congress party had run

away from the scene of assassination. While picturising the duties of the police, their personal lives also stood portrayed as a part and parcel of the

theme. Depiction of true facts, was conveyed to the public through this media. He emphasised that it was not becoming of political party who had

run away from the scene of assassination to charge the producer with ulterior motive in production of this film. He stated that the title ""Charge-

Sheet"" (KUTRAPATHIRIKKAI) would itself suffice to show that the film stops at a stage before the trial commenced, and therefore, it would be

odd to advance an argument that the pending trial would stand affected due to certification of the impugned film. He submitted that the object of

the film was to educate the people by showing the efforts taken by the State to control militants and in a way the film was exposing the terrorist

organisation. He argued, that when the press itself had stated that the Chief Minister of Tamil Nadu was in the hit list, the film had only sought to

project the truth and nothing more. He was at pains to submit that the organisation and its ideology stood exhibited in the film only with the object

of curbing the outfit. Mere banning of an organisation cannot affect the film, for nowhere in the film it has been projected that the ban should be

lifted or that the producer was supporting the people of the banned organisation. He submitted that projection through the television was far more

wide arid better spread than the cinema. If Srilanka was putting down the LTTE, we are also equally doing it, is the message sought to be

conveyed through the film. By reference to a certain decided cases, which we will refer to a little later, he submitted that the argument of sub judice

cannot prevent exhibition of this film, for even while criminal cases are pending, events concerned with the crime were allowed to be exhibited in

the form of a cinema by the Supreme Court. He then contended that the community was anxious to know all that had exactly happened at or about

the time of Rajiv Gandhi assassination and the producer had done nothing against the norms. He urged that a fair and accurate rendering of factual

situation cannot attract the provisions of the Contempt of Courts Act. While reiterating that emphasis of the film was not on the LTTE, Mr.

Vasantha Pai submitted that crimes happen everyday and hence mere portraying Rajiv Gandhi''s death can have no adverse impact, more so, when

it was merged in the story of love affairs in the lives of two police officers. The film further portrays the dereliction of duty by one of the officers,

while picturising the duty consciousness of another officer, who had taken all pains to avert the assassination attempt made on the Chief Minister of

Tamil Nadu. If the picture projected joining together of certain people with an object to conspire and plan about execution, there was nothing -

special about it, for it happens almost in every crime. If the Petitioner''s counsel chooses to exaggerate that this film has something special, because

it relates to Rajiv Gandhi, such an argument cannot be upheld. If a person is against another in the criminal world, killing the opponent, appears to

be the usual pattern and, therefore, objection cannot be taken to the extinguishing of adversaries, by the LTTE.

In a similar way, as Mr. Gopalan had pointed out to various portions of the script, Mr. Vasantha Pai, in his turn, referred to a few more

passages in the script in support of his contention that if the Tamil people needed to know all about Rajiv Gandhi''s assassination, that should be

taken to be the message of the film and incidentally, as a warning to the terrorists. He pointed out that the modus operandi was the same in all

political murders that one comes across. He posed a question as to whether the producer could be faulted, if he had chosen to depict the

characters in this film, in the same manner as they had been depicted in the news media. He submitted that the whole theme projected a public man

hunt and wanted the people to join in the combing operations. That the militants are all over the place and people are against them, was also a

message sought to be conveyed through this film. According to Mr. Vasantha Pai, it would be odd to draw a conclusion, as suggested by

Petitioner''s counsel that the film would shake the whole of Tamil Nadu. This film does not, anywhere, refer to the training of militants while in the

news media, such training stood projected. He conceded that there was reference to the LTTE in the film, but quickly added that the film was not

about their activities. He submitted that u/s 5-D(10), a Tribunal can regulate its own procedure and it was not bound to conform to the provisions

of the Code of Civil Procedure. He invited us to hold, that the order of the Board and the order of the Tribunal had got merged together and hence

the Board cannot be allowed to challenge the order of the Tribunal. Mr. Vasantha Pai commented that the producer has not challenged the orders

of the Examining Committee and the Revising Committee before the Tribunal, for copies of such orders were not furnished to him. At this stage,

Mr. Gopalan intervened and submitted that even according to the first Respondent in his counter affidavit, he was informed on 31-3-1994 orally

by the Petitioner that certification was rejected by the Revising Committee and on 6-4-1994 he was served with the order of the Petitioner

rejecting the certificate. Mr. Gopalan further contended that in terms of the provisions of Cinematograph Act, the first Respondent will not be

entitled to supply of the opinion offered by the members of the Examining Committee and Revising Committee, for all that the first Respondent

could claim, would be the order of rejection of certification by the Board and the reasons therefor. Mr. Vasantha Pai nextly Submitted that it would

not suffice for the Petitioner to state that it had discharged its onus under Article 19(2) of the Constitution on mere ipse dixit, but must exhibit fin

factual data its having discharged the onus cast on it. Again, Mr. Vasantha Pai emphasised that the message of the film was to provide an insight as

to how a militant organisation could be tackled by the authority in power. Generally, Mr. Vasantha Pai submitted that no commission of contempt

by the producer stood shown by the Petitioner and merely contending that public security was affected cannot advance the case of the Petitioner.

Finally, Mr. Vasantha Pai contended that after 25-7-1994, the first Respondent had taken out sixty prints of the film, by spending over Rs. 35

lakhs. He added that it would be wrong to suggest that this film had eulogised the LITE organisation. He submitted that this Court must hold that

the verdict of the Tribunal needed no interference, whatever, for if truth stood depicted, the producer cannot be blamed.

Before stepping into the case law dais it would be necessary to go deep into the factual details, which get crystallised in the script of the film. It

cannot be gainsaid that application of law can only be on the basis of factual foundation. Counsel on either side have made extensive references to

the script, while attempting to substantiate their respective contentions.

We have already stated that we had the impugned film specially screened for us so that we would be in a better position to assess the inherent

merits of the rival submissions. We are left with an indelible impression, after viewing the film that the love story of two police officers has

practically no link or connection either with the picturisation of assassination of Rajiv Gandhi or the attempted assassination of the Chief Minister of

Tamil Nadu. It looked as though, an attempt stood made, to project the ideologies of the LTTE, and their modus operandi, in achieving their

targeted decisions. We individually and collectively felt that the love story, which forms only an infinitesimal portion of the film, stood introduced

only as a ruse to lay bare the movements and activities of an organisation, while highlighting their objectives, knowing fully well that the said

terrorists organisation stood banned by virtue of law enacted and upheld by the Tribunal constituted under the said law.

Now, our concentrated attention, will stand restored, on the script. The opening scene of the film projects the conversation between

Padmanabha, EPRLF leader and his comrades. Padmanabha informs his comrades that he had met the All India Congress Leaders at Delhi and

specifically Rajivji. Further he makes them aware, that Rajivji would accept their political decision to contain the tigers democratically. The

conversation makes it apparent that the EPRLF and the tigers (LTTE) were at loggerheads. Within a flash second, a group of armed men rush into

the apartments where Padmanabha was conversing and kill Padmanabha and some others in a gun battle before escaping. Mr. Gopalan, was quite

justified in pointing out, that the object sought to be projected, of the banned outfit was, the manner in which they wanted to do away with their

adversaries. It is not as though this is the only portion of the film on which Mr. Gopalan has placed reliance to pinpoint this objective, for as we

proceed later, similar such instances do surface.

It is widely known in Tamil Nadu, that the militants were smuggling petrol, diesel rice and ammunition to Srilanka, out of this country. It is in

that background the conversation in the house of a prominent smuggler, projected in the film, becomes relevant. A person offers his salutation to

his boss and informs him, that petrol, diesel, rice and ammunition were ready and they can be despatched on that very night. Another person

contradicts him and states to his boss, that it may not be possible, since police security was there. The boss slaps the second person and questions

him, if he knew why he was so slapped. The second person replies that he was taken to task because he intervened to state that despatch was not

possible on that night. The boss repudiates him and explains that slapping was not for the purpose he had imagined, but for his having got scared.

Immediately the boss questions him as to from when did he commence to be afraid of police. The second person poses a question ""if police

arrests""?. The boss replies as hereunder:

Will they arrest? Shall I go? Fear is the enemy to our job. If the Government is in the hands of the people, then the Government is in my hands. I

bought everything with my money and power. If the. Government pays people working in the Department a thousand a month, I pay them two

thousands. To whom would they be loyal to?

This conversation outright/shows, that the organisation was bent upon smuggling essential commodities by hook or crook and one need not have to

be bothered about existence of a police force. Though this portion of the conversation inside the house, may tend to project the (sic) acquisition of

certain essential commodities by the terrorist organisation to smuggle them out of the country, that alone may not suffice to deny certification to the

impugned film. The object probably was to project that corruption was rampant everywhere and money power plus rowdyism would suffice to

achieve any object. This objective may not be something special or exclusive to this organisation, for that appears to be the watch word or slogan

of bullies backed up by money power.

Yet another scene on the sea-shore introducing Siva, who is supposed to be the brain behind the killing of Rajiv Gandhi, appears to be rather

revealing. The boss is informed that Siva has come. The boss welcomes him stating, that he had already received the message in the morning about

his arrival. Siva asks Shanmugham, the boss, whether he had message about his arrival or what he was bringing, Shanmugam replies ""both"". Siva

exclaims as follows:

our people living for Tamil land and dying for Tamil land.

In continuation of this scene, a conversation follows between Siva and Hari, a photographer. Hari informs Siva that he wants to be the best

photographer and everybody should talk about him everywhere. Siva questions him if he was ready to take any risk and the answer was in the

affirmative. Siva tells Hari, that he wants photographs of important places in Madras City, top political leaders, their houses and offices.

Photographer Hari asks Siva the purpose for which such photographs were required. Siva interrogates Hari as to why he was asking, for these

photographs were to be published world-wide and he would select only ten even if ten thousand snaps stood collected by Hari. Siva continues that

there was need for standards. The argument of Mr. Gopalan, was that on the arrival of Siva into this country to achieve the objectives of the

terrorists group, he had made arrangements to have photographs taken of certain political leaders (standard), their houses and officers, to provide

easy access to those places, by publishing them worldwide to the terrorist outfit spread over, the object being to achieve eradication of Rajiv

Gandhi. Again, in the sea-shore, a person tells Siva that Rajiv Gandhi, was arriving on the next day to Madras to address an election meeting at

Sriperumbudur and that was the right time, for nobody would control people going closer to Rajiv Gandhi, because of elections. Siva replies, that

the matter is different and this plan should not be known to Tamil friends helping them, for they would not agree to this conspiracy, however,

affectionate they were with them. It should be known, only to the comrades of their movement. It is in this context Mr. Gopalan submitted, to our

minds, rightly, that the execution plan to assassinate Rajiv Gandhi by a terrorist organisation, was sought to be projected with a warning that only to

some extent the help of Tamil friends could be taken and specific plans should not be divulged to them, for then, there would be opposition. The

object, as contended by Mr. Gopalan, appears to be that there should be no opposition to their plan and in the event of opposition, the adversaries

should not be left, to tell their tales. Mr. Gopalan was correct in pointing out that the projection of ""our movement"" was referable to the terrorist

movement.

Nextly, under the foot of a Hill, a person tells Siva that the jacket produced by him Was not an ordinary jacket, but a human bomb. If he were

to wear that jacket instead of a brassiere and then checked as usual, even with the metal detector, nothing can be found out, because it was not

completely a metal bullet, but made of plastic1 bullets. While referring to the movement, the objects of the outfit, as well as secrecy to be kept in

the-movement, certainly to get projected. Again underneath the foot of a hill, Siva exclaims that it was not important as to who among them died,

but their aims should succeed. This is followed by an echo of comrades, ""succeed, succeed"". Mr. Gopalan correctly submitted, that the purpose of

arranging for photographs indicating the topography of the residences and official spots of the political leaders, was the modus operandi adopted

by the LTTE, to help them in executing crimes to achieve their objectives. These facts, have ample bearing, as vital material, in the trial,

pendingbefore the Designated Court in relation to Rajiv assassination.

The next reference in the script relates to the meeting at Sriperumbudur. The script reads as hereunder:

Sriperumbudur Meeting.

A leader: Dear voters of Tamil Nadu, we are waiting for our former Prime Minister of India, Rajiv Gandhi. Prime Minister Rajiv Gandhi is on his

way. Waves of flood of people clash all over.

Inspector: What lady?

Woman: Want to garland the leader.

Inspector: Not possible.

Woman: I came from a long distance for that.

Inspector: If you come from a long distance.

Woman: You should arrange somehow.

Inspector: Why do you kill me? Stand there. Go.

Man: Come here. Time for him to come. Keep the crowd in control.

Inspector: All arrangements have been done Sir. Who

are you Lady?

Woman: Sir

Inspector: Come out, Come out, Who are you? Why are you standing here?

Woman: To garland S.I.: Sir, leave her sir. Inspector: Why leave her? S.I.: Has come for garlanding. Inspector: Name is in the list? S.L. No sir.

Inspector: How many would garland? Out, go Lady go. Look don''t allow anyone not in the list.

Voice: We are prepared to wait for ages for the man who protected our mother and bearing with numerous hardships and miseries. We should let

the world realize that the son of Indira Gandhi who is going to hoist the flag of success is the only guiding heir to the helpless Indians. No force can

win us if we unitedly work. We should work for our success never minding day or night, hot or cold. We should forget if there is difference of

opinion within ourselves and work for the success of our front. Leader Rajiv Gandhi has come. Public should be calm. All should be calm please.

Public should be calm. We request all to be calm please. Calm Calm....

Inspector: Sir, What is the disturbance there?

Form a line of garlanders.

Rajiv arrives. A leader hails him.

A woman tries to go towards him. The police stop her.

Rajiv: Let her come.

She garlands him. There is an explosion within a few seconds. Wailing sound.

Voices: Ayyo brother Rajiv, killed our brother Rajiv. Ayyo Rajivji is gone like this. Killed unjustifiably.

On the basis of this script, if Mr. Gopalan has attempted to impress upon us, that this subject-matter stood referred to for an inquiry, before Mr.

Justice Jain Commission, we cannot easily brush aside the same as irrelevant. The specific reference reads as follows:

Whether any person or persons or agencies were responsible for conceiving, preparing and planning the assassination and whether there was any

conspiracy in this behalf and, if so, all its ramifications.

When the criminal trial before the Designated Court and inquiry before Mr. Justice Jain Commission are pending and verdicts are expected in

those proceedings in due course, projecting those themes as true happenings, would certainly affect the sanctity of those proceedings. We cannot

also overlook, that the first Respondent seeks to project, that the happenings leading to relating and following Rajiv Gandhi assassination, as

published in the news media, were true and the public had a right to know the truth through this film. The version, the first Respondent seeks to

project at this stage, has to be held one-sided, for, it will tend to affect prejudicially the defence of the accused facing trial, as well as lapses, if any,

in security arrangements at Sriperumbudur, which had facilitated conceiving, preparing and planning of assassination of late Rajiv Gandhi, which in

turn would have an adverse impact on the police force, even before the matter is judicially determined. Then, the actual assassination of Rajiv

Gandhi stands pictured. Soon after assassination, a telephonic conversation between Sundaram and the man in the assassination spot appears to

be significant. Sundaram questions as to what had happened to photographer Hari and the reply is that Hari was lying badly wounded and there

was lot of excitement, at the explosion site, which prevented him from going nearer. Sundaram was interested in finding out as to what had

happened to the camera and the reply that was flung at him was that he was not aware as to where the camera was lying down. Sundaram chides

the convener at the other end as ""stupid"" and sounds a warning that the camera was important and if it does not reach him, both of them would be

killed. This again, as submitted by Mr. Gopalan, would indicate that to achieve the objectives of the organisation, killing galore was a necessary

need and if there was any lapse on the part of anybody in the calibered path of commission of crime, the penalty was forced death, a little later in

the party office of Dravida Munnetra Kazhagam, the flag-staff is cut and the man who cuts it, exclaims, that the head should be cut and not the flag.

The person belonging to the Dravida Munnetra Kazhagam party exclaims that cutting of flag posts was like cutting their throats and torching of the

party flag was like torching their family. The object, for need of retaliation is also projected, while exclaiming that the party members were

maintaining patience out of respect to the party leadership and the fabric of discipline. The voice of the leader of D.M.K. party, is also miked out.

Not only there is no change in character sequences, but also resemblances of political leaders, some of whom are still alive, are meticulously

pictured and it cannot be held to bean empty submission, if Mr. Gopalan asserts, that there was bound to be a re-kindling of passions, inevitably

leading to crossing of swords between political parties with different objectives.

After the assassination, the assailants, exclaiming, that it was difficult to escape then, also stands flashed on the screen. Siva states that the sea

route cannot be used to escape from Indian soil for the Navy was in control and therefore there was need for them to get separated and go

underground within Tamil Nadu. He advises his comrades not to use old contacts or meet old friends, because the CentralBureau of Investigation,

led by Kartbikeyan has taken charge of the case and that this person was more than God, for may be God was there or not, Karthikeyan will be

everywhere. This portion of script, pointed out to us, probably will be the reaction of every criminal, when his escape routes are blocked and on

this score, certification for this film cannot certainly be refused.

Then, the scene picturing Siva''s anger about Murugan not having left for Jaffna, is shown. He was surprised, that Murugan was in Tamil Nadu

and exclaims, that he had not lost his hearing, though he had lost his eye, for a spontaneous answer was not forthcoming. Another person replies,

that Murugan was living with a woman without their knowledge and that instead of proceeding to Jaffna, as advised by Siva, both Murugan and

Nalini went over to Tirupati and got married. Earlier, the arrest of Murugan and Nalini gets exhibited in the film. Siva replies that an important

person among them has got into the police hands. As long as he was their brother, he would not divulge the truth to the police, but with love and

marriage, he would have a desire to live and therefore, he cannot be trusted thereafter. As rightly emphasised by Mr. Gopalan, the attitude of the

terrorist outfit, to possible adversaries, does get projected.

Then, we have the seizure of arms, after digging up of the earth. A little later, in Siva''s place, one of the comrades, exclaims, that they cannot

keep running for long, for there was ho place to run thereafter and that instead of being caught, he and another as well, could die together. Siva

replied as follows:

We are militants. Born to fight, completed only one job. There is another job as balance. Even death should be a gallant death. Not out of fear for

our lives, that we go underground. If the tiger backs out, it is not out of fear. It is to bounce back.

That the ""job balance"", related to the murder plan of the Chief Minister of Tamil Nadu, gets revealed a little later when Siva states:

I think CM. murder plan has been found out"" and therefore it is better if we don''t stay in Tamil Nadu for sometime"". Again, at Siva''s place, Siva

interrogates his comrade, ""would arrest Sivarajan, Will arrest? Twenty five thousand Indian police are searching day and night saying that they will

arrest. Would they arrest Sivarajan"". The comrade replies, Not you, they cannot arrest even your shadow.

In another scene, the discussion between two police officers stands screened. A senior police officer on the death of Shanmugham, suicide or

homicide, states:

Do you know how big loss is this? The whole world is watching how this case is conducted. Even if a small mistake is committed, it will reach

everybody before you wink. We were faltering without proper evidence. Lost a big witness that we got.

Another police officer replies as follows:

Nobody expected that he will commit suicide.

The reply is:

If it is a suicide then it shows the negligence of the department. If it is a murder, it is not the murder of an individual person. It is the murder of the

whole department.

This scene, according Petitioner''s counsel, is intended to project, that the militant organisation would not allow witnesses to depose against their

outfit and involvement in crime, and they will not hesitate to see to it that no longer such a witness will be available to the human agency.

The next projection relates to the hide-out of the militants outside Tamil Nadu. The house, where Siva and other militants were hiding, stands

surrounded by the police on all sides and the militants express their agony that they cannot escape thereafter. Siva kills his woman associate and

swallows cyanide and puts an end to his life. One of the militants exclaims as hereunder:

They have killed Siva. Before we die, we should destroy those who destroyed us and die. The victory conference of the history of bravery takes

place. The CM. participates in it. This is their first anniversary of their victory. This should be her final festival.

One of the comrades states, that he would mix with the crowd with a pistol and that she (Chief Minister) cannot escape from his target. A second

comrade intervenes and exclaims that if the first man misses the target, he will go close as a human bomb like Thanu and certainly she (Chief

Minister) will die in his operation. Rajesh apparently the leader available, vows that even if ""that did not work out, the pots will break up one by

one during the dance performance, to be held, to bless the Chief Minister, and from each pot ""colours"" will rain. Then the second comrade states.

But when one pot breaks up, the earth will shake up"" and ""Conference will turn into a graveyard. CM. cannot escape from this"".

Then, all that, according to Mr. Gopalan is justification for the attack, is projected on the basis of the following conversation:

Look here. I didn''t say as you have been asking as a police officer so far. Asked as a brother, I''ll tell you now. You fed us with rice. I am not

denying that. Gave clothes. I am not denying that. Showed love and affection. I am not denying that. But you buried us alive, like taking away the

life after giving the eyes. When the whole world asked u$ to stop the struggle, we did not listen. But because an Indian asked we bowed and

accepted it, thinking that the whole India has asked. Till today, we couldn''t raise our hands which we lowered that day. If we haven''t laid down

our arms trusting your talks that day, we need not run for life. We should live. We got to live. We will sacrifice anyone for that. When we run to

save our life we dash against the person coming towards us. Don''t dash wantonly. Like that you and I are dashing against each other. Have you

witnessed your mother being raped? Have you witnessed your sister being raped? Have you witnessed your wife being raped in front of your

eyes? Never seen. Never seen. I saw them. We saw. Still we are seeing. That''s why we have turned into animals. Each blow we suffer today,

each drop of blood we shed today, are not for us. For our future generation''s life, honour and their freedom.

of course, it was pointed out by Mr. Vasantha Pai, that the Tribunal had directed that this portion must be deleted from the film. It does not appear

that this portion has yet been deleted, for this scene appears to have been available when we viewed the screening of the film. Whatever it be, this

portion of the film is bound to give an insight as to the object and intention with which this film was sought to be screened with the apparent

purpose of impressing upon the viewers who have sympathy for the banned outfit, about the clear message of the banned organisation. In a way

this conversation refers to failure of Indo-Srilankan Accord.

Even before we narrate and discuss the specific answers put forth by Mr. Vasantha Pai to these pieces of script leading to picturisation,

referred to by Mr. Gopalan, we have to observe that it will be our duty not to be carried away by certain pieces of conversation and picturisation,

by magnifying them and at the same time we should not attempt to minimise the effect, that such scenes would have on the public in general and the

terrorists in particular. We will be duty-bound to consider the overall impact of the film, based on its entirety, on the public mind.

Now, we will refer to the explanations sought to be offered by Mr. Vasantha Pai, to portions of the script and the screening referred to earlier.

He posed a question as to how it was wrong if EPRLF leader Padmanabha, had met, All India Congress Leaders in Delhi and Rajivji, to be

specific, and further if Padmanabha had stated that Rajivji would accept their political decision to contain the tigers democratically. He submitted,

that there was nothing wrong if persons against Padmanabha killed him. The word ""tigers"" need not have to necessarily refer to the LTTE. We are

unable to agree with Mr. Vasantha Pai, that mere mention of ""tigers"" can lead one nowhere, for the whole object, purpose and picturisation will

have to be taken, without truncating it, which, when done, would clearly suffice, indisputably, to conclude, that the word ""tigers"" stood referred

only to LTTE. He then justified the conversation of the boss who exclaimed, that he had bought everything with his money and power and that the

people in the Government were loyal to him, since Ids payment was more than what they would receive from the Government. We have already

observed, that, may be corruption is prevalent extensively, and on this score, screening of the film, cannot be refused to be certified. The

contention of Mr. Vasantha Pai, was that the conversation of Siva with Shanmugham in the sea-shore stating ""our people"", living for Tamil land and

dying for Tamil land"", will only refer to Tamil land in Jaffna and not the State of Tamil Nadu. He suffixed it by stating that all of them were fighting

there in Srilanka and they were not dying in the State of Tamil Nadu. This submission appears to be contrary to the facts picturised, for the rival

militant organisation had not only attempted to extinguish the opponents, but had also succeeded to a certain, extent, as projected in the film, while

referring to the request of Siva to the Photographer, to picture all important places in Madras City, top political leaders, their houses, offices etc.,

counsel questioned what could be the risk if Hari, the photographer had chosen to exclaim, that he was prepared to take any risk. It is apparent

that clicking of snaps of top political leaders and important places in Madras City would not be very easy, for sufficient security protection would

reasonably be expected.

It is not only the risk factor for the photographer, but also the risk to which the top leaders would be put to, because of such photographic

exposures, virtually placing such leaders at the mercy of a terrorist organisation. While commenting about the assertion of Siva, that the

assassination plan of Rajiv Gandhi should not be known to the Tamil friends helping them, for they would not agree tothis conspiracy, however

affectionate they were, and that this scheme should be known only to the comrades of their movement. Mr. Vasantha Pai submitted, that the object

sought to be projected was that Tamil friends were not accomplices. He expatiated his submission by urging, that Tamil people needed to know

that they are not accomplices and that is the message of the film, which indirectly, was also a warning to the terrorists. On the contrary, if the

impact as a whole, has to be taken note of, it will become apparent that the terrorist outfit was using the Tamil friends to a very great extent, to

collect all information about their opponents, while choosing to keep them in the dark at the crowning stage of commission of the crime planned. It

is also evident from all that we have discussed earlier, that if any Tamil friend had become acquainted with their ultimate deeds and there was a

possible exposure, the definite plan of the banned organisation was to extinguish them. If any Tamil friend is a privy to a part of commission of

crime, he cannot escape from being characterised as an accomplice. We are unable to find any assuaging message to the Tamilians. But, on the

contrary, the film projects that crime would pay and accomplices would suitably be rewarded. Each arid every act heed not have to be specially

projected, for the necessary inference, which cannot be explained away on any other reasonable hypothesis, will also have to be taken note of

while judging the ''effect impression'' of this film on the public mind.

Mr. Vasantha Pai then submitted that the fact of wearing a human bomb jacket, can have no sinister significance. The impression sought to be

projected is very clear, for the offender concerned is emboldened by the assertion; that even with a metal detector, the bullets cannot be detected

since they stood made with plastic.

Mr. Vasantha Pai then submitted that the voice of generality in reply to the Inspector of Police at Sriperumbudur, which reads as hereunder:

Voice: We are prepared to wait for ages for the man who protected our mother land bearing with numerous hardships and miseries. We should let

the world realise that the son of Indira Gandhi who is going to hoist the flag of success is the only guiding heir to the helpless Indians. No force can

win us if we unitedly work. We should work for our success never mining day or night, hot or cold. We should forget if there is difference of

opinion within ourselves and work for the success of our front. Leader Rajiv Gandhi has come. Public should be calm. All should be calm please.

Public should be calm. We request to be calm please. Calm.... Calm....

Would go against the argument of Mr. Gopalan, for Rajiv Gandhi stood eulogised. This voice does not appear to have any bearing to the terrorists

and an unconnected portion, cannot be singled out, in justification of projection of the impugned film. While commenting about certain other pieces

of conversation referred to earlier by us. Mr. Vasantha Pai commented, that the policemen talk and do nothing more, and if the arrest of Nalini and

Murugan was a fact, there was nothing wrong in portraying the same. He did not have any comments about the distrust against Murugan expressed

by Siva, apart from asserting, that statement of facts which cannot be blamed, are looked into with perverted eyes. He commented that the film, in

effect, has an appreciation of the great efforts made by the police force to nab the culprits. He asked us, as to what was wrong if death of a

witness was pictured, for already such deaths have been published in the news media. He submitted that the tall talk between some comrades

expressing their desire to kill the Chief Minister of Tamil Nadu, though exaggerated, need not have to be believed and the public will be in a

position to differentiate between actualities and exaggerations. As far as the other portions of the script are concerned, the burden of the song of

Mr. Vasantha Pai was that the crime pattern was not anything different from any other crime, which occur day in and day out. He also emphasised

again, that in all political murders, the modus operandi would be the same and therefore too much of a sensitivity need not have to be exhibited,

merely because assassination was of late Prime Minister, presumably by the LTTE and that stood pictured.

We cannot ignore that most of the characters in the film have been purposely made to resemble the political leaders or the alleged offenders.

As far as the political leaders are concerned, their identity can easily be understood, for they are no strangers to the Tamil Nadu public, much less,

to the country as a whole. As far as offenders are concerned, as pointed out Mr. Vasantha Pai, their photographs have appeared in the news

media and the public do have a clear impression about all the physical appearances of the offenders allegedly involved in the grave crime. Though

some of the portions of the film, culled out of still photographs, show the political leaders in flesh and blood and their participation in some meetings

or programmes, in the other parts, either the Prime Minister or the Chief Minister of Tamil Nadu is projected by characters, who have a striking

resemblance to those leaders not only by their appearance, but also in the pattern of their attires. There cannot be any divergent opinion, if one

views the film that the object of the terrorist organisation was to kill their opponents, and late Prime Minister Rajiv Gandhi and the Chief Minister of

Tamil Nadu were in the list of such opponents. The query of Mr. Vasantha Pai, was that the whole world knew about the leaders in the hit list of

terrorists and if that be so, why should the producer be faulted for projecting information, which was no longer a secret. We can only answer, that

while projecting certain facets of alleged truth, the first Respondent had.dearly mtermingled messages of terrorist organisations so that they can be

spread to whomsoever it may concern. Such spreading includes the objectives, activities and attitude and spirit of revenge strongly embedded in

the minds of the members of the outfit.

At this stage, we are constrained to pose a question to ourselves, as to what the need was, to introduce in this picture the assassination of Rajiv

Gandhi and the attempted killing of the Tamil Nadu Chief Minister, when they appear to have practically no relevance to the love affair in which

two police officials were involved. Day in and day out, of course, crimes are committed, and most often police and political interference in such

commissions of crime, do stand picturised. However, they are general in nature, without specifically referring to personalities in power. If the object

of the producer was to expose crime, which stood backed up by political and police support, he could have easily done so in the same pattern as

similar crime stories tend to exhibit on the screen. If we consider the whole episode in that perspective, the only answer is that the love story,

totally unconnected, is only a camouflage to project the banned outfit, in all its glory and indirectly attempt to crown them as heroes. Probably, if

we dissect certain parts of the film, as suggested by Mr. Gopalan, or Mr. Vasantha Pai, they are bound to project support or opposition, to the

rival contentions. That approach cannot, but he held as partial. To reiterate, the total impact of the whole film must be taken as the sine qua non to

arrive at a decision if the film deserves certification under any category and if the decision of the Tribunal could be sustained, overruling the

objections sought to be put forth by the Petitioner-Board, through its Examining or Revising Committee.

Petitioner-Board, while rejecting certification, has informed in writing, to the first Respondent, the reason''s for such refusal. It will be better to

list out those reasons, before we advert to the approach made by the Tribunal, in disposal of the appeal preferred by the first Respondent, without

even taking note of certain vital and valid reasons, which it was duty bound to consider, before upholding or rejecting the same, on sufficient and

sustainable groups. The reasons are:

The story is based on the real incident of the assassination of Shri Rajiv Gandhi, under investigation by the Central Bureau of Investigation. The

film presents the entire story in an angle imitable to the activities and the ideologies of the banned organisations. The terrorist outfit is banned in

India. This outfit, is reportedly actively involved in the criminal conspiracy to murder Shri Rajiv Gandhi.

The film itself opens with the sequence of the assassination of EPRLF leader Padmanabha with all its attendant details. Many of the characters in

the film have names identical or nearly identical to the characters involved in the real incident.

The film also introduces a character Ramakrishnan and contains sequence of Ramakrishnan saving the life of Chief Minister of Tamil Nadu Ms.

Jayalalitha. Fiction and fact are inextricably woven into the film, but the impression in the minds of the viewers is one of resurrection of the

assassination episode with extracts from the newspaper headlines and speeches of political leaders.

The ban on the said outfit, upheld by the court, is still on. So long as the ban on the outfit is enforced in attempt through the"" cinema medium to

present a viewpoint, highlighting the activities of the banned organisations will not be in public interest.

Presenting the film before the Indian public at this stage would do a lot of harm to the on going enquiry into the assassination of Shri Rajiv

Gandhi. It is likely that the film could create sympathy in a section of society in favour of the banned organisation, by indirectly trying to portray

through the film and overall justification for what had actually happened in May, 1991. The public exhibition of the film is also likely to put

hindrance in the non-going campaigns against terrorism.

The overall impact that tends to project a view opened in favour of the banned organisation cannot be reduced by cuts/deletions.

Therefore, taking into consideration the total impact and the presentation, the film is violative of guidelines 2(xiv) prejudicial to sovereignty and

integrity of India. 2(xv) security of India being jeopardised or endangered, 2(xvii) public order and 3(i) judged in its entirety from the point of view

of its overall impact.

It will be better to refer, at this stage, to the contention of Mr. Vasantha Pai, that the first Respondent was served with the details of opinion,

offered by the Examining Committee or the Revising Committee. Under Rule 22(4) of the Cinematograph (Certification) Rules, 1983, all previews

of films for the purpose of examination for certification and the reports and records relating thereto shall be treated as confidential. Similarly under

Rule 24(6), the provisions of Sub-rules (4) to (8) of Rule 22, shall apply mutatis mutandis to the examination of films by the Revising Committee or

the Board. Apparently, those records shall have to be treated as confidential. Communication to the applicant is contemplated under Rule 25. This

Rule reads that on receipt of orders of the Board u/s 4 or Section 5-A, the Regional Officer shall communicate the same to the applicant by

registered post or in such other manner, as in the circumstances of the case he deems fit and take such other steps in accordance with the said

orders as he may deem necessary. Needless to add that u/s 4 of the Act, any person desiring to exhibit the film shall in the prescribed manner

make an application to the Board, for a certification in respect thereof, and the Board may, after examining or having the film examined in the

prescribed manner, sanction certification under any one of the categories or refuse to sanction the film for public exhibition. u/s 5-A of the Act, if,

after examining a film or having it examined in the prescribed manner, the Board considered certification under any category, or non-certification

was needed, order accordingly and it is that order containing reasons of the Board, which will have to be communicated to the first Respondent

under Rule 25. u/s 5-A(2), a grant or refusal of certification in respect of any film shall also have to be published in the Gazette of India.

Under Rules 22 and 24, referable to Examining Committee and Revising Committee, respectively the names of the members of those

Committees examining the film shall not be disclosed to variety of persons contemplated therein, inclusive of the applicant or his representative.

These rules also prohibit presence of the applicant or his representative inside the preview theatre, wherein the Examining Committee or the

Revising Committee was expected to view the film. The onerous duty cast on the Examining Committee and the Revising Committee forms part of

Rule 22(8) applicable to Rule 24 as Well. These Committees shall examine the film having regard to the principles for guidance in certifying films,

specified in Section 5-B(1) and the sidelines issued by the Government u/s 5-B(2). Under Rule 22, immediately after the examination of the film,

each member of the Examining Committee, attending the examination, shall before saying the preview theatre, record his opinion in writing Form

VIII set out in the Second Schedule, spelling out in clear terms the reasons therefor and stating whether he or she considered that the film vas

suitable for exhibition under any one of the categories or was not suitable to be certified. Under Rule 24(8), a similar provision is provided for the

Revising Committee. It will not only be necessary but also relevant to have a look into Form VIII prescribed under Rule 22(9) and 24(9). In serial

number 5, under Part-B certain guidelines have been provided, which must be taken note of by members of either of the Committees, while

arriving at their decisions. We deem it necessary to extract numerical 5 under Part-B, to Form VIII, which reads as hereunder:

If you recommend a certificate (a) are you satisfied that in the film:

(i) anti-social activities such as violence are not glorified or justified?

(ii) the modus operandi of criminals or other visuals or words likely to incite the commission of any offence are not depicted?

(iii) pointless or avoidable scenes of violence, cruelty and horror are not shown?

(iiia) scenes which have the effect of justifying or glorifying drinking are not shown?

(iv) human sensibilities are not offended by vulgarity, obscenity and depravity?

(iva) visuals or words depicting women in ignoble servility to man or glorifying such servility as a praiseworthy quality in women are not presented.

(v) visuals or words contemptuous of racial, religious or other groups are not presented?

(vi) the sovereignty and integrity of India is not called in question?

(vii) the security of the State is not jeopardised or endangered?

(viii) friendly relations with foreign States are not strained?

(ix) public order is not endangered?

(x) visuals or words involving defamation or contempt of court are not presented?

(b) Whether the film has been

(i) judged in its entirety from the point of view of its overall impact?

(ii) examined in the light of contemporary standards of the country and the people to which the film relates.

We have already noticed that Article 19(2) has been bodily incorporated in Section 5-B(1) of the Cinematograph Act. We have to specifically

point out, that apart from other categories contemplated u/s 5-B(1), a film shall not be certified for public exhibition, if in the opinion of the

authority competent to grant certificate, the film involved contempt of Court or was likely to incite commission of any offence.

Not only the first Respondent has affirmed in the counter-affidavit dated i8th August 1994, that on 31.3.1994, he was orally informed, that

certification for the film was rejected and on 6.4.1994, he received the order of the Board rejecting his request for certification, but also his

acknowledgment on 31.3.1994 placed before us, would confirm, that oral communication, of the decision, of refusal to certify given by the

Revising Committee, was made to him. Apparently, thereafter, reasons for rejection of certification have been conveyed; Therefore, there is no

substance in the submission made by Mr. G. Vasantha Pai, that no oral communication of rejection was made to the first Respondent about the

decision of the Committees, to refuse certification for this film.

In Ramesh Dalal Vs. Union of India (UOI) and Others, ; while scrutinising the provisions of Section 5 of the Cinematograph Act vis-a-vis

screening on the television of a serial titled ''Tamas'' coupled with fundamental right contemplated under Article 21 and 25 of the Constitution, and

the Supreme Court stated as hereunder:

even on the statute as it presently stands the procedure for grant of certificate of exhibition to a film is quite elaborate and the unanimous approval

by the Examining Committee must be given full weight. As pointed out by Krishna Iyer, J. in Raj Kapoor Vs. Laxman, a Court would be slow to

interfere with the conclusion of a body specially constituted for the purpose.

The purpose for which these observations were brought to our notice, by learned Senior Counsel appearing on behalf of the Petitioner, was to

impress upon us, that the reasons put forth by the Board for rejection of certification must have been seriously taken note of by the Tribunal in the

appeal preferred by the first Respondent. If that had not been done, the Petitioner would be justified in pointing out that relevant material had been

completely overlooked.

Again, in S. Rangarajan Vs. P. Jagjevan Ram and Others, , though the position contra was considered, the importance, of the views offered by

the Committees, was highlighted by the Supreme Court. Relevant observations are extracted down below:

In this case, two Revising Committees have approved the film, The members therefor come from different walks of life with variegated

experiences. They represent the cross-section of the community. They have judged the film in the light of the objectives of the Act and the

guidelines provided for the purpose.

The emphasis of Mr. Gopalan was, that the Tribunal was duty-bound to have taken note of that weighty material, in the process of disposing of the

grievances of the first Respondent and if it had not done so, this Court will be justified in holding that there is an error of law apparent on the face

of record. We entirely agree with Mr. Gopalan, that the reasons listed out by the Board, while rejecting certification must have been considered by

the Tribunal, though not in seriatum at least as a whole, and such consideration must be apparent in the impugned order, for otherwise, it will be

open to the Petitioner to point out existence of a grave lacuna. That the Tribunal was alive, to those reasonings furnished by the Board, to refuse

certification, must have been exhibited in the order, though the reaction to every ground need not have to be made explicit, as long as an overall

picture of application of mind to vital facts, can be spelt out from the impugned order. It may be, that the Tribunal had noted the grounds of

challenge of the Appellant, before it, but the impugned order does not ever refer to the same, even to the required minimum extent. The approach

made by the Tribunal in disposing of the appeal preferred by the first Respondent, does not appear to conform to any standard of normal

expectation of disposing of appeals by a Tribunal or a Court. Unless the working of the mind of the Tribunal could be made explicit in the

impugned order, it will be difficult for the Courts, to appreciate the mode and the manner in which conclusions were arrived at, without apparent

discussion on the vital issues involved or placed for offering of a verdict. It should have been possible for the Tribunal, to have at least stated that

none of the reasons recorded by the Board were justified on the basis of the guidelines available under the Act and therefore there was no need to

separately list out the reasons and dispose them of. Even this approach is conspicuously absent in the instant order....

In S.K. Dutt, Income Tax Officer and Another Vs. Anglo-India Jute Mills Co. Ltd., , a Division Bench of the Calcutta High Court stated thus:

If an error can be corrected by a certiorari, only if it appears on the face of the order, as it used to be said at one time, or on the face of the

record, as it has been said in one or two recent cases, it is pertinent to enquire what the record is, ''What, then is the record? asked Denning L.J. in

the Court of Appeal in (1952)1 KB 338 (C) 352 and after referring to certain decided cases, the learned Lord Justice answered his own question

as follows:

Following these cases, I think the record must contain at least the document which initiates the proceedings; the pleadings, if any and the

adjudication; but not the evidence, nor the reasons, unless the Tribunal chooses to incorporate them. If the Tribunal does state its reasons, and

those reasons are wrong in law, certiorari lies to quash the decision.

Veeraswami, J., as he then was, in his order dated 15.10.1962 in W.P. No. 1163 of 1961 (Sowdambiga Motor Service v. Sri Jagannathan

and Bros. and Ors.)observed as follows:

The learned Advocate General for the Petitioner submits that the order of the Tribunal is vitiated by an error apparent on its face because it set

aside the permit granted to the Petitioner by the RTA without considering and comparing the merits and demerits pertaining to the Petitioner on the

one hand and the first Respondent on the other and arriving at a conclusion that the first Respondent had a superior qualification so that the latter

could be said to be aggrieved by the grant of the permit to the Petitioner by the RTA. To put it differently, his point is that the Tribunal has failed to

find whether the first Respondent''s qualification was superior to that of the Petitioner. As a proposition of law, there can be no doubt that failure

on the part of a Tribunal charged with quasi-judicial jurisdiction to find on an essential question of fact is an error of law. If authority is needed,

reference may be made to Sheik Rahmat Elani v. Mohamed Bayat Khan 1943 70 IP 225 where it was laid down.

There is no difference in principle between a failure to appreciate and determine the real question of fact to be tried and a failure to appreciate and

determine a question of fact, which vitally affects the issue stated in the case, and in the latter case the failure of the courts below to investigate and

come to a finding on that vital basic, question of fact equally constitutes an error in law against which, by virtue of Section 100 of the Code of Civil

Procedure, a second appeal will lie''.

No doubt that case was decided with reference to Section 100 of the CPC and in a petition for certiorari the question will be not merely whether

there is an error of law, but whether such an error appears on the face of the order.

We are constrained to hold that the Tribunal cannot ignore certain provisions of law taken note of by the original authority. The very first reason for

refusal of certificate extracted earlier shows that the film was presenting the entire story in an angle imitable to the activities and ideologies of the

banned organisation. The terrorist outfit is banned in India. This outfit, is reportedly actively involved in the criminal conspiracy to murder Shri Rajiv

Gandhi. In conjunction with this reason, reason 4 reads as follows:

The ban on the said outfit upheld by the Court is still on. So long as a ban on the outfit is enforced any attempt through the cinema medium to

present a viewpoint highlighting the activities of the banned organisation will not be in public interest.

These two reasons cannot be just brushed aside, even without consideration, as having no material significance. We have already extracted the

order of the Unlawful Activities Prevention Tribunal headed 5y Mr. Justice P.N. Nag, holding sufficient cause having been shown by the Central

Government, for declaring the LTTE as an unlawful association under the Act and that the same was necessitated in national interest. It is not as

though the Tribunal was not made aware that the LTTE was a banned organisation, for paragraph 5 of the impugned order, would incorporate

such awareness.

If that be so, the Tribunal did owe a duty to have considered as to how those reasons could not be upheld as valid. We have been taken through

the impugned order by counsel on either side. But, nowhere, do we find an answer to this very germane question. Law connected to the banning of

this organisation will certainly be an issue, which ought to have been gone into by the Tribunal. In T.C. Basappa Vs. T. Nagappa and Another, ,

the Supreme Court had the following observations to make:

A Tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where

ho particular procedure is prescribed, it may violate the principles of natural justice. A writ of ''certiorari'' may be available in such cases. An error

in the decision or determination itself may also be amenable to a writ of ""''certiorari'' but it must be a manifest error apparent on the face of the

proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be

corrected by ''certiorari'' but not a mere wrong decision.

It is therefore clear that though the Tribunal can frame its own procedure, still in deserving cases, the remedy of certiorari cannot be denied to the

party seeking it, pointing out errors apparent.

The following observations of the Supreme Court in The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, also

appear to be very significant in the present context.

Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be

quashed on the ground of mala fides dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the

purpose of the legislation which confers the powers, since the authority has to act in accordance with and within the limits of that legislation, its

order can also be challenged if it is beyond those limits or is passed On grounds extraneous to the legislation or if there are no grounds at all for

passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of

these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant

facts.

The submission of Mr. Gopalan that the first Respondent had not sought to project his own views in the picture"" and it was only expression of such

views, if any, that requires protection under Article 19(1)(a) of the Constitution, must be held to have sufficient strength. In the impugned orders,

the Tribunal has observed as follows:

Further, in the matter before us, unlike the case before the Supreme Court, the producer is not even projecting his own message, what he is

projecting is, in Mr. Gopalan''s own words reproduced by us in para 5 above, ''a total simulation'' of the events that actually happened without

injecting therein his own likes, dislikes or prejudices, personal or political.... Further, by the very same judgment, the Supreme Court allowed the

appeal on the ratio that in a democracy open criticism of Government''s policies is permissible within Article 19(1) of our Constitution. We again

reiterate that unlike the matter before the Supreme Court in the instant case before us, all that the producer does is merely to project the facts and

events as they actually happened.

We are prepared to uphold that under a pretended claim under Article 19(1) of the Constitution, the first Respondent cannot be permitted to

project information, on activities, modus operandi and crime commission achievement of a banned outfit and still insist, that such exhibition in a film

would require protection under Article 19(1)(a) of the Constitution. We have said enough that this film seeks to project the modus operandi of this

banned organisation eliminating one by one its adversaries. There cannot be a divergent note, that an indelible impression is bound to be formed in

the minds of the public or atleast in the minds of those sympathizers of this organisation, who would apparently feel elated. Those against the

organisation, as correctly contended, would stand demoralised and the consequence would be mutual recrimination. At the risk of repetition, we

underline that His film, under the guise of portraying factual events, cannot arrogate itself to eulogies activities of this banned outfit. If the-Tribunal

had not considered this important issue, we will be justified in commenting that it had failed to exercise jurisdiction vested in it.

We are able to visualise, that the effect of viewing a film in a theatre, would certainly produce a distinct impact on the viewers, contra

distinguished from sporadic exhibition of certain events alone in the newstrack or the television. It would suffice to extract the observations of the

Supreme Court on this particular aspect, as is available, S. Rangarajan Vs. P. Jagjevan Ram and Others, :

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 aural 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, light 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

production the present movie is a powerful means of communication.

It can, therefore, be said that the movie has unique

capacity to disturb and arouse feelings, It has as much potential for evil as it has for good. It has an equal potential to instill or cultivate violent or

good behaviour. With these qualities and since it caters for mass audience who are generally not selective about what they watch, the movie cannot

be equated with other modes of communication. It cannot be allowed to function in a free market place just as does the newspapers or magazines.

Censorship by prior restraint is, therefore not only desirable but also necessary.

There is clear distinction, in exhibition of a T.V. serial ""TAMAS"", which was the subject matter of consideration in Ramesh Dalal Vs. Union of

India (UOI) and Others, . In the words of the Supreme Court.

Tamas takes us to a historical past � unpleasant at times, but revealing and instructive. In those years which Tamas depicts a human tragedy of

great dimension took place in this sub-continent though 40 years ago-it has left a lasting damage to the Indian, psyche. It has been said by Lord

Morley in ''On Compromise'' that it makes all the difference in the world whether you put forth in the first place or in the second place. It is true

that a writer or a preacher should cling to truth and right, if the very heavens fall. This is a universally accepted basis. Yet in practice, all schools

alike are forced to admit the necessity of a measure of accommodation in the very interests of truth itself. Fanatic is a name of such ill repute,

exactly because one who deserves to be so called, injures good causes but refusing timely and harmless concession; but irritating prejudices that a

wiser way of urging his own opinion might have turned aside; by making ho allowances, respecting no motives, and recognising none of those

qualifying principles that are nothing less than necessary to make his own principle true and fitting in a given society. Judged by all standards of a

common man''s point of view of presenting history with a lesson in this film, these boundaries appear to us could have been kept in mind. This is

also the lesson of history that naked truth in all times will not be beneficial but truth in its proper light indicating the evils and the consequences of

those evils is instructive and that message is there in Tamas'' according to the views expressed by the two learned judges of the High Court. They

viewed it from an average, healthy and commonsense point of view. That is yardstick. There cannot be any apprehension that it is likely to affect

public order or it is likely to incite into the commission of any offence. On the other hand, it is more likely that it will prevent incitement to such

offences in future by extremists and fundamentalists.

In that case, the Supreme Court noted that two learned judges have found that die message of the film was good. They have stated that the film

showed how realisation ultimately dawned as to futility of violence and hatred and how the inherent goodness in human nature always triumphed

The Supreme Court also stated as follows:

It is true that in certain circumstances, truth has to be avoided.

It is under that peculiar fact conspectus, that certain observations were made in the aforestated case. There cannot be a second opinion that the

film will have to be viewed from an average, healthy and commonsense point of view and that should be the yardstick. In the present case, what is

projected is not history, which had occurred decades ago, but relates to gruesome assassination of the former Prime Minister. The incident, as

such, is quite fresh in the minds of general public, let alone pendency of prosecution against the accused and an enquiry before Mr. Justice Jain

Commission. In view of these salient features, visualisation in this picture of those events will lead to the consequence of undesirable reaction,

bound to affect public order.

How can we say that the producer was depicting true facts? Even here, to repeat, Supreme Court has observed that in certain circumstances

truth has to be avoided. Details of assassination of Rajiv Gandhi flashed in the news media and placed before the Designated Court in the form of a

final report, cannot be held, at this stage, to be the truth, as the case put forth by the prosecution will have to be assessed on its inherent merits

during the course of the pending trial. It cannot be disputed that the accused involved in this crime may have a different story to offer, which may,

or may not, tend to affect the details of assassination portrayed by the prosecution. If there was a conspiracy or a particular modus operandi was

adopted by any agency, still they have to be decided not only in the trial, but also in the inquiry before Mr. Justice Jain Commission. We are unable

to understand as to how the Tribunal has chosen to observe as follows:

While on this aspect, we may advert to Mr. Gopalan''s assertion that should we allow certification of this film, we would be committing contempt

of the designated court as also of the commission of enquiry. This must indeed be the thin end of the wedge, which we do not regard with the

pessimism as does Learned Counsel.

In A.K. Gopalan v. Nooreen AIR S.C. 1694 the Supreme Court stated as hereunder:

It must be shown that it was probable that the publication would substantially interfere with the due course of justice, commitment for contempt is

not a matter of course but within the discretion of the Court which must be exercised with caution. To constitute contempt it is not necessary to

show that as a matter of fact a judge or a jury will be prejudiced by the offending publication but the essence of the offence is conduct calculated to

produce an atmosphere of prejudice in the midst of which the proceedings will have to go on and a tendency to interfere with the due course of

justice, or to prejudice mankind against persons who are on trial or who maybe brought to trial. It must be used to preserve citizens'' right to have

a fair trial of their causes and proceedings in an atmosphere free of all prejudice or pre-possession. It will be contempt if there is a publication of

any news or comments which have a tendency to or calculated to or are likely to prejudice the parties or their causes or to interfere with due

course of justice.

The imminence of proceedings will be of paramount importance. In the aforestated case, since only a first information report was pending,

Supreme Court stated that lodging of a first information report does not by itself establish that proceedings in a Court were imminent. It further

stated:

it would depend on the facts proved in a particular case whether the proceedings are imminent or not.... Ordinarily until an accused is arrested it

cannot be said that any proceedings in a Court are imminent against that person, because he may never be arrested or he may be arrested after a

lapse of months or years.

Facts placed before us affirm, that after conclusion of investigation, charge-sheet stood laid in Rajiv Gandhi assassination case, before the

Designated Court and the trial is in progress. Apart from it, the accused facing trial were arrested and they are now inmates of special prison. It

can easily be concluded, that proceedings in the Designated Court are imminent. The same parity of reasoning will apply to the inquiry pending

before Mr. Justice Jain Commission. The further observations of the Supreme Court in the same case aptly apply to the issue involved in the instant

writ petition. They read as hereunder:

To advance the day of imminence to the day when the police makes a report u/s 173, Code of Criminal Procedure would do untold harm to those

who may actually be ultimately prosecuted. Not only will it tend to harm the accused, but would also tend to subvert the scheme of our criminal

law and procedure. It would subvert it because it would tend to encourage public investigation of a crime and a public discussion of the character

and antecedents of an accused in detention. The investigation of a cognizable case is eminently the province of the police and if a person has

information relevant to the commission of a particular crime, there is nothing to prevent him from transmitting it to the police.... But as far as an

investigation of a charge of murder is concerned once an accused has been arrested proceedings in Court should be treated as imminent.

A Division Bench of this Court in Haji Rasheed Mohammed v. D. Ramanujam A.LR. 1986 Mad 119 had occasion to consider as to what

would amount to contempt when writ petitions challenging video legislation were pending decision. this Court observed as follows:

Where knowing about the pendency of any stay granted in the writ proceedings in the High Court challenging the validity of video legislation the

participants in a Doordarshan discussion programme referred to such proceedings and talked in favour of and justified the legislation, they were

guilty of committing contempt of Court u/s 15 read with Section 2(c)(iii) since their speeches tended to interfere with the administration of justice.

A speech touching upon a pending proceeding may amount to contempt, even if the speaker did not actually intend thereby to interfere with the

course of justice and the speech did not in fact interfere with the course of justice if the speech is likely to have that effect.

As rightly contended by Mr. Gopalan, if witnesses for the prosecution were to view this film, they would become aware as to how the banned

outfit were extinguishing adversaries and that would certainly have an effect on the pending proceeding. We will have to necessarily hold that no

parallel can be drawn to the instant film by comparing it with certain other films which had passed through censorship, the correctness of which

stood challenged before Courts.

On the guidelines provided u/s 5-B of the Act, while certifying films, the Supreme Court stated in S. Rangarajan Vs. P. Jagjevan Ram and

Others, as follows:

It will be thus seen that censorship is permitted mainly on social interests specified under Article 19(2) of the Constitution with emphasis on

maintenance of values and standards of society. Therefore, the censorship by prior restraint must necessarily be reasonable that could be saved by

the well accepted principles of judicial review.

In the same case, some more observations need extraction:

The Censor Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of

the country. The moral values in particular, should not be allowed to be sacrificed in the guise of social change or cultural assimilation. Our country

has had the distinction of giving birth to a galaxy of great sages and thinkers. The great thinkers and sages through their life and conduct provided

principles for people to follow the path of right conduct. There have been continuous efforts at rediscovery and reiteration of those principles. Adi

Guru Sankaracharya, Ramanujacharya, Madhwacharya, Chaitanya Maha Prabhu, Swami Ramakrishna Paramahamsa, Guru Nanak, Saint Kabir

and Mahatma Gandhi, have all enlightened our path. If one prefers to go yet further back, he will find ""Tirukkural"" the ethical code from

Thiruvalluvar teaching which is a ''general human morality and wisdom''. Besides, we have the concept of ''Dharma'' (righteousness in every

respect) as unique contribution of Indian civilization to humanity of the world. These are the bedrock of our civilization and should not be allowed

to be shaken by unethical standards. We do not, however, mean that the censors should have an orthodox or conservative outlook. Far from it,

they must be responsive to social change and they must go with the current climate. All we wish to state is that the censors may display more

sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of those who see it. Krishna Iyer, J. in Raj Kapoor

Vs. Laxman, in words meaningful expressed similar thought ( SCC. 180 10 : SCR p.517):

The ultimate censorious power over the censor belongs to the people and by indifference, laxity or abetment, pictures which pollute public morals

are liberally certificated; the legislation, meant by Parliament to protect people''s good morals, may be sabotaged by statutory enemies within.

The people of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article

19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression arid special

interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it

cannot be suppressed unless the situations created by allowing the freedom are pressing and community interest is endangered. The anticipated

danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought

should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action

contemplated like the equivalent of a ''spark in a power keg''.

Thereafter, Supreme Court chose to refer to the observations of the Bombay High Court in Manohar Damodar Patil and Another Vs. The

Government of Bombay, . In that case, the writer of an article in a newspaper was convicted for an offence under the Press (Emergency Powers)

Act, 1931, for incitement to violence. The writer had suggested the people to follow the example of China by rising against Anglo-American

Imperialism and their agents. He had also suggested to his readers to pursue the path of violence as the Chinese people did, in order that Anglo-

American Imperialism should be driven out of this country. Chagla, C.J., while quashing the conviction said (A.I.R. p.213):

It is true that the article does state that the working class and the toiling masses can get hold of power through the path of revolution alone. But the

expression ''revolution'' is used here, as is clear from the context, in contradistinction to reformism or gradual evolution. The revolution preached is

not necessarily a violent revolution.... As the writer has not stated in this article that the toiling masses should take up arms and fight for their rights

and thus achieve a revolution, we refuse to read this expression as inciting the masses to violent methods.

There cannot be a better illustration that facts in each case will be decision factor. All that the impugned film apparently justifies and preaches is

unabated violence to finish off adversaries as though that was a sacrifice on the part of the offender. The picturisation, in our view, would suffice to

incite violence, for reasons spelt out by us, at several stages, in this Order. It will be better to refer to Guidelines 2 and 3 extracted by the Supreme

Court in the same case and its further observations:

Guideline (2) requires the Board to ensure that: (i) anti-social activities such as violence are not glorified or justifies; (h) the modus operandi of

criminal or other visuals or words likely to incite the commission of any offence are not depicted; (iii) pointless or avoidable scenes of violence,

cruelty and horror are not shown; (iv) human sensibilities are not offended by vulgarity, obscenity and depravity; (vi) the sovereignty and integrity of

India is not called in question; (vii) the security of the State is not jeopardised or endangered; (viii) friendly relations with foreign states are not

strained; and (ix) public order is not endangered.

Guideline (3) also requires the Board to ensure that the film (i) is judged in its entirety from the point of view of its overall impact; and (ii) is

examined in the light of contemporary standards of the country and the people to whom the film relates.

It will be thus seen that censorship is permittee mainly on social interests specified under Article 19(2) of the Constitution with emphasis on

maintenance of values and standards of society. Therefore, the censorship by prior restraint must necessarily be reasonable that could be saved by

the well accepted principles of judicial review.

Further observations of the Supreme Court in the same case are as follows:

Even the European Court''s approach in protecting the freedom of expression is not different although they have the extensive list of circumstances

for limiting the freedom. Article 10 of the European Convention of Human Rights and Fundamental Freedom provides:

(1) Every one has the right to freedom of expression.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or

penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety,

for the prevention of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of the judiciary.

We have carefully kept in our view that the fundamental freedom under Article 19(1)(a) can reasonably be 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.

Counsel on either side placed for our scrutiny the judgment of the Supreme Court in Life Insurance Corporation of India and Union of India

and another Vs. Prof. Manubhai D. Shah and Cinemart Foundation, to project their own points of view. Even in that case, the principle enunciated

by the Supreme Court is clear that it was manifest from Article 19(2) that the right conferred by Article 19(1)(a) was 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.

That case related to the documentary ""Beyond Genocide"", televising Bhopal Gas Disaster and another. In the words of the Supreme Court, 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. While Mr. Gopalan contended, that what was subjudice was

the compensation claims, Mr. Vasantha Pai emphasised the prosecutions were also on the anvil in that tragedy, and so it cannot be argued without

reservation, that compensation claims alone were subjudice. We have already considered, ''imminence of proceedings'' and it appears to us that in

the aforestated case, the concentration of the Supreme Court related to pendency of claims for compensation, in which light, they observed, that

they did not render that matter subjudice so as to shut out the entire film from the community. The tragedy was unique and the Supreme Court

stated that the film had not only won the Golden Lotus Award, but was also granted ""U"" Certificate by the censors and merely because it was

critical of the State Government, perhaps, because of its incapacity to cope with unprecedented situation, was no reason to deny selection and

publication of the film. The picturisation of Bhopal tragedy, obviously is so different and not comparable even on any remote standard with the

impugned film, which, as we have stated many times earlier, is bent upon projecting the objectives of a banned organisation and confusing the

public mind as if the picturisation was of the whole truth, paying no heed, whatever, to the pending proceedings before a Criminal Court and a

Commission.

As to the effect a movie would have on impressionable minds, we need only refer to the Following statement made by the Supreme Court in

Moorthy Vs. State of Tamil Nadu, :

His mental agitation was further fuelled by the movie, showing murder after murder. The vicious effect of films picturising violence in detail on

impressionable minds has been subject of serious concern for some time now, but unfortunately no effective step has been taken so far to curb the

growing tendency of a section of the film industry to cash on human weakness.

In Shankar @ Gauri Shankar and Others Vs. State of Tamil Nadu, similar such observations were made by the Supreme Court and they read as

follows:

It is, however, pleaded that by imposing death sentence, it may be possible to get rid of the criminals but not the crime of this nature which has

become an integral part of the urban life where the modernisation particularly the type of films exhibited and the books published, have their own

impact. There cannot be any dispute that modernisation is an important factor and needed very much in a developing country; but this makes us

ponder over whether the voyage we have undertaken on the basis of the principles enshrined in the Constitution, is carried on right lines, for it is

not the distance we have travelled that matters, but it is the direction in which we have travelled that really matters. Are we merely moving or truly

advancing? Are were merely changing or effectively progressing and whether we are aware of the significant difference between moving and

advancing and between changing and progressing? These are all aspects of great importance and wider amplitude involving socio-political issues to

be considered at a different level. We do not propose to deliberate on the same in this case and say whether we have truly advanced and

effectively progressed by embracing the so-called modernisation and whether the so-called progressive relaxations are true in spirit or self-

deceptive by and large? It is for those who are really concerned in their wisdom to take a deep look into these issues and do the needful.

Shri S. Muralidhar, Learned Counsel for the Appellants, who has made an intensive study of the records in this case, in the end pleaded or rather

lamented that A-l having seen such films depicting sex, violence and illicit business etc., got misguided and ended up as a criminal and therefore the

makers of such films are also vicariously responsible. The lamentation appears to be justified. We are at a loss to know whether it is compulsory

that a heroine should invariably appear on the screen with accentuated angularities, deepened depressions and exaggerated protuberances of the

body? Is it an irrevocable convention that the violence unleashed by the wicked or the evil-minded villain or the hero''s valour in punishing those

wicked and the villain must only be shown in such a cruel, gruesome and diabolical manner. When promotion of art and culture is the primary

underlying object, how can obscenity, cruelty and many such wicked things be depicted and shown in such blown-up and magnified manner

leaving an impression that the film is meant only to depict such things. It is here that the Censor Board should step in firmly and insist that the film

being released has a message meant to improve the values of life and should see that the film contains only such scenes which do not affect the

values of life. By exhibiting scenes of violence, sex, rape, bootlegging and drug trafficking etc., in such a manner or manners which have the

propensities of disturbing or corrupting the minds of some viewers like children and particularly of those who are weak-minded, wayward, in

disciplined, frustrated and likewise, who are very likely to become wicked and evil-minded and ultimately end up as criminals indulging in organised

crime, the avowed object gets frustrated. The films should be of educative value and then only they can play an important role in subserving the

interests of the society. No doubt, entertainment is one of the important underlying objects but it is mainly meant to make the viewers mentally

relaxed and enjoy and not to render them heavy-hearted, sensually aroused and mentally disturbed which may lead them to indulge in frivolities,

perversions and dangerous addictions, which ultimately are likely to pave the way to end themselves up as criminals.

Again, the Supreme Court observed in the case, as follows:

While dealing with the audience reaction the Committee observed that children retain 70% of what the adults retain upon seeing a film and some of

the impressions become mature and clearer with the passage of time and a scene in a film shapes the attitudes and social values of children and any

kind of medium which employs visual or aural communication makes a deep and lasting impact upon an impressionable mind Quite a few films are

shown on TV. The constraints that are applicable to film media equally apply to TV media also and the authorities concerned must exercise proper

discretion in selecting the films to be telecast. Therefore among the available sources movie and TV have key roles in modifying human behaviour

and one can easily observe the effect of movie and TV that day-to-day affects all children, adolescents and youths in dress, action and expression

etc. and even the modus operandi adopted by some criminals to commit the crime has been found to be akin to that of the herb or villain in a

particular movie. This subject because of its importance has been attracting the attention of the eminent people including psychologists, doctors and

professors who have written several books after intensive study and we do not want to have a detailed discussion on the subject in this case.

However, we sincerely hope that all those concerned, in whose wisdom we have faith, would act timely and promptly to set right this scenario. We

may add that we should not be understood to mean that all films are of that nature but in the context some of that nature are enough to cause the

damage and the Censor Board is dutifully expected to stop such films from being released in an earnest manner.

While on reasonable restrictions, we are bound to quote the observations of the Supreme Court in Harakchand Ratanchand Banthia and

Others Vs. Union of India (UOI) and Others, , they read as follows:

It is necessary to emphasise that the principle which underlies the structure of the rights guaranteed under Article 19 of the Constitution is the

principle of balancing of the need for individual liberty with the need for social control in order that the freedoms guaranteed to the individual

subserve the larger public interests. It would follow that the reasonableness of the restrictions imposed under the impugned Act would have to be

judged by the magnitude of the evil which it is the purpose of the restrains to curb or emanate.

The scope of expression ""in the interests of public order and disturbance of public order"" stood discussed in Madhu Limaye Vs. Sub-

Divisional Magistrate, Monghyr and Others, . We quote the following passage:

Public order'' includes absence of all acts which are a danger to the security of the State and also the acts designated by the French as ordre

publique, that is the absence of insurrection, not turbulence or crimes of violence. But it does not include acts which disturb only the serenity of

others.

The words ''public order'' and ''public tranquillity'' overlap to a certain extent, but there are matters which disturb public tranquillity without being a

disturbance of public order. No doubt public order also requires absence of disturbance of a state of serenity in society but it goes no further.

The expression ''in the interests of public order'' in the Constitution, which is of very wide amplitude, is however capable of taking within itself not

only those acts which disturb the security of the State or are within ordre publique but also certain acts which disturb public tranquillity or are

breaches of the peace.

It is not necessary to give that expression in the Constitution a narrow meaning as in the case of the phrase ''maintenance of public order'' used in

the preventive detention law, as embracing only graver episodes not involving cases of law and order which are not disturbances of public

tranquillity of ordre publique.

In The State of Bihar Vs. Shailabala Devi, the following observations were made in relation to interpretation of Clause (a) of Section 4(1) of

Press (Emergency Powers), Act, 1931:

Clause (a) of Section 4(1) deals with words or signs or visible representations which incite or encourage, or tend to incite to or encourage the

commission of any offence of murder or any cognizable offence involving violence. It is plain that speeches or expressions on the part of an

individual which incite to or encourage the commission of violent crimes, such as murder, cannot but be matters which would undermine the

security of the State and come within the ambit of law sanctioned by Article 19(2) of the Constitution.

The observation of the Supreme Court in Santokh Singh v. Delhi Administration AIR 1973 S.C. 1991, which reads as follows:

The analogy between Section 124-A, I.P.C. and Section 9 of the Act (Punjab Security of the State Act) is wholly misconceived and in view of the

comprehensive sweep of Article 19(2) we are unable to restrict Section 9 of the Act only to those speeches and expressions which incite or tend

to incite violence, are amply revealing.

Mr. Vasantha Pai submitted that Mr. Gopalan will not be justified in commenting about presence of dead bodies at Sriperumbudur, for the

Tribunal has ordered deletion of all shots of dead bodies after the human bomb exploded. At the same time, he posed a question to us as to what

would be the usefulness of the film even if the dead body of Rajiv Gandhi were to be removed and pleaded that permission should be granted to

show in the film the mutilated dead body of Rajiv Gandhi. If, according to Tribunal, all shots of dead bodies, after explosion of human bomb, had

to be deleted, we are unable to understand as to how the mutilated dead body of the late Prime Minister alone can be allowed to remain in the film,

for exhibition.

This insistence, obviously on instructions, can-only reinforce the Ultimate object with which the film was shot and the message the terrorists would

like to convey that anybody against their movement, directly or indirectly, would have to meet with the same fate.

Mr. Vasantha Pai produced a letter signed by Mukta v. Srinivasan, dated 11-8-1994 and forwarded to the first Respondent, stating that

members of the Congress party who saw the. film ""KUTRAPATHIRIKKAI"" felt that certain portions mentioned therein should be removed from

the film as they believed that they offended the feelings of Congressmen. The submission was that the Congress Party was behind refusal of

certification by the Petitioner-Board and to that extent mala fides must be held to be patent, for the ultimate object was to permit a film on Rajiv

assassination, taken by the members of the Congress Party. In other words, it was contended that if positive certification was issued to this film, the

prospects of success of the film produced by the Congressmen would be at stake. It is true that one Mukta v. Srinivasan had listed out certain

shots, which will have to be removed, since those portions offended the feelings of Congressmen.'' It also shows that members of the Congress

Party had seen the film. Under the Rules and Regulations, the identity of the members of the Examining Committee and Revising Committee shall

not stand disclosed to any one, inclusive of the applicant or his representatives. It is quite possible that some members of the Examining Committee

or the Revising Committee could have been members of the Congress party and while we say so, it can be taken that there is some basis for this

observation, of course, based on the relevant papers in relation of the public, or anyone else will be in a position to witness a film before

certification and if that had been done, it would certainly affect the sanctity of the procedure followed. We are prepared to hold that, on the facts

available, the opinion of a single member of a particular party could have been flashed as that of a few members of the party, in spite of the fact

that only a single member had authoritatively viewed the screening of the film. It is, of course, not proper for an individual to communicate with the

producer regarding cuts to be imposed, for that duty is cast on the Board and none else. of course, in appeal, the Tribunal can direct cuts and in

proceedings arising out of the original or appellate orders, in Courts, the Courts will have such power preserved in law. While holding that the

correspondence of one member of Congress Party to the first Respondent was neither in order, nor justified, we find that on this score alone, mala

fides cannot be attributed. However, on facts presumed suspicion need not have to be elevated to the status of existing mala fides. We are unable

to agree with Mr. Vasantha Pai on this ground.

We have already stated that publication in news media, soon alter the crime, or some sporadic repetitions later, cannot have the same impact

of screening of a film inside the four walls of the theatre, consistently and repeatedly, and in affirmation of our views, we have quoted the

submission of the first Respondent''s counsel, that the object of the producer was in defence of the police and to highlight their duty-consciousness.

We had occasion to mention earlier that the picture shows one of the police officers having been suspended, for having left the scene and its effect

on the police force was, that some politicians were the cause for the same. Of course, scores and scores of pictures do project either bravery of

police force or their total inefficiency. That probably may have to be taken, as the way of the world and on the ground alone, denying certification

can neither be just nor proper. We have earlier pinpointed that the love story of policemen, two in number, appears to be only a ruse to depict out

and out a banned organisation and its activities. Some little part here and some little part there in the film, hot depicting the banned outfit cannot, in

our view, affect the adverse impact of the film in general. In a way the object of the producer appears to be to mix politics, by showing that

members of one political party had fled away from the scene soon after Rajiv killing. Even this projection cannot be held against the producer, for

these acts of running away coming together are parts of day-to-day political life. Mr. Vasantha Pai took pains to pick out a few scenes of this

nature in support of his contentions. But the answer we are bound to give is, that conclusions will have to be drawn on the whole film and not on

infinitesimal, truncated, chosen scenes.,

Referring to a letter dated 31-3-1994, addressed by the Petitioner to the first Respondent, Mr. Vasantha Pai contended that the very title

KUTRAPATHIRIKKAI"" would suffice to indicate that the picture stopped with the stage of filing of the final report and did not proceed any

further and, therefore, the argument of subjudice etc., will have to be rejected as totally irrelevant. This letter dated 31-3-1994 informs the first

Respondent that the Board had come to the conclusion that certification cannot be granted for exhibition. This letter will also be an answer to the

submission of Mr. Vasantha Pai, that nothing was orally communicated to the first Respondent, for this letter, admittedly received by the first

Respondent, in paragraph 2, affirms that the reason for the above decision, orally communicated to the first Respondent, were again furnished

overleaf. To recapitulate, we have already found that the Petitioner had communicated such reasons orally to the first Respondent. It will be too

late in the day to contend that no opportunity was given to the first Respondent, for no reasons were supplied. As a matter of fact, no such ground

appears to have been placed before the Tribunal. We have stated earlier, based on case law, as to When proceedings in Court can be held to be

imminent, and that answers this submission.

A fervent plea was made by Mr. Vasantha Pai inviting us to hold that the film was expected to expose the banned organisation and such

exposure would be good to educate the people. The viewing of the film does not even remotely cast an impression on these lines.

Mr. Vasantha Pai was then attempting to justify that there was nothing wrong in the first Respondent having attempted to picturise the attempt

made to murder the Chief Minister of Tamil Nadu, for the whole world knew through the Press that she was in the hit list. We do not think it

necessary to repeat that the film media is totally different from occasional outbursts in the news media. They can stand no comparison. It will be

again not in the correct perspective to argue that if a person was in the hit list, why not project actual ''hitting attempt''. Depending upon the power,

popularity and love, a political leader enjoys, such an attempt on the person concerned, sought to be shown on the screen, would certainly tend to

arouse the feelings of large percentage of the members of the public owing allegiance to that leader. Rancour and retaliation will be the necessary

outcome. It maybe commented that these are common features in the present political world, but, we cannot overlook that these features are not

shown isolatedly. They are sought to be connected with the assassination of Rajiv Gandhi by certain disgruntled people, whose avowed object, as

picturised in the film, was to do away with some of those similarly placed in power as late Rajiv Gandhi. That is the impact, an ordinary man of

commonsense, is bound to experience. We cannot omit to mention, the assertion of Mr. Vasantha Pai that, of course, the organisation and its

ideologies stood exhibited in the film, but that was intended to curb such organisation and ideologies and not for any other purpose. This argument

exposes the object behind the film. We have already, at more places than one, in our order, have stated that the contention, that the purpose of the

film was to show the LTTE as a blacksheep only in an attempt to curb its activities, does not impress us even in the least. The admission is clear

that exhibition of the picture, was the outcome of desired projection of the banned organisation and its ideologies. There appears to be no merit in

the submission that the film had a message that if Srilanka was putting down LTTE, we were also doing it.

We have already referred to the contradictory contentions advanced by opposing counsel, if the fact of subjudice will or will not affect

certification of the film, and given out our answers as well. Mr. Vasantha Pai pointed out paragraph 12 of the judgment of the Supreme Court in

Charan Lal Sahu Vs. Union of India, , wherein mention has been made about laying of charge-sheet u/s 304, 324, 325 and 429 I.P.C. read with

Section 35, I.P.C. before the Chief Judicial Magistrate, Bhopal, in the Bhopal tragedy case and contented that in spite of pendency of prosecution,

the documentary ""Beyond Genocide"" Was allowed to be exhibited. In Bhopal tragedy, negligence was the foundation on which the superstructure

was built. In Life Insurance Corporation of India and Union of India and another Vs. Prof. Manubhai D. Shah and Cinemart Foundation, , the

Supreme Court observed that ""Beyond Genocide"" was a documentary and pendency of claims for compensation did not render the matter

subjudice so as to shut out the entire film from the community. To reiterate, ""Beyond Genocide"" can stand no comparison to the impugned picture,

which does not appear to have any parallel. Mr. Vasantha Pai contended that in the present guidelines, Clause 5(ii) in Part B, appended to Form

VIII, namely the modus operandi of criminals or other visuals or words likely to incite the commission of any offence are not depicted, does not

find a place. Mr. Vasantha Pai does not appear to be right, for, on verification, we find that Sub-clause (ii) in Clause 5, does exist even now, as in

the past, and this fact, counsel had to concede. It is apparent that Learned Counsel was able to visualise the importance of this clause, which has a

direct bearing on the screening of the impugned film. We say this much and nothing more.

Pointed reference was made to paragraph 20 of the judgment in Life Insurance Corporation of India and Union of India and another Vs. Prof.

Manubhai D. Shah and Cinemart Foundation, to impress upon us that the attempt of the author in that film was to draw a lesson from our

country''s past history, expose the motives of persons, who Operated 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.

Supreme Court stated even therein, that if it was possible for a motion picture to convey such a message in depth and if it was able to do that, it

would be an achievement of great social value. This has reference to ""A Tale of Four Cities"" produced by K.A. Abbas. His case was the subject

matter of decision in K.A. Abbas Vs. The Union of India (UOI) and Another, . Can it be said by any standards that any such message is sought to

be conveyed by the impugned film? The answer can only be an emphatic ""No"", which, in all probability, cannot allow entertainment of a dissent.

First Respondent''s counsel then urged, on the basis of Section 4 of the Contempt of Courts Act, that fair and accurate report of judicial

proceedings would not amount to contempt, when such report was made at any stage of a judicial proceeding. We have already dealt with the

case law on contempt and when proceedings can be stated to be imminent. If proceedings are imminent, public investigation and public discussion

will certainly attract contempt of Court. We have earlier stated that the first Respondent cannot escape by stating that only truth was picturised, for

what exactly is the truth, will have to be verdicted in the pending proceedings or pending inquiry. Mr. Vasantha Pai laid emphasis on the synopsis

of ""KUTRAPATHIRIKKAI"".

Synopsis of ""KUTRAPATHIRIKKAI.

Ramakrishnan and Arun are two good friends working as Assistant Commissioners of Police in Madras.

Ramakrishnan and Divya are living happy married life.

Arun and Geetha are a separated couple due to a small misunderstanding.

At this juncture of their respective life, Thiru Rajiv Gandhi visits Tamil Nadu for election campaigning. Assistant Commissioner Mr. Arun has been

posted on-duty to provide complete security for Thiru Rajiv Gandhi. Unfortunately, Thiru Rajiv Gandhi has been killed by a bomb blast.

Arun has been suspended on grounds that security had not been adequate enough.

The enquiry commission formulated to enquire into the murder of Thiru Rajiv Gandhi included the Assistant Commissioner Mr. Ramakrishnan.

During the course of investigation it has been found that the prime accused Sivarasan and Subha had committed suicide.

The Commission had been brought to the notice of a plot being made by the terrorists to kill the Chief Minister of Tamil Nadu. Ramakrishnan

saves the Chief Minister from the alleged plot of the terrorists.

Meantime, Arun who had been re-included to duty saves Mrs. Ramakrishnan from the terrorists attack. The separated couple Arun and Geetha

reunite and the two young officers continue their duty.

Even a casual perusal of the synopsis, would suffice to show that the synopsis has scrupulously avoided the very live-wire of the film. On the basis

of this synopsis, Mr. Vasantha Pai contended that emphasis was not on the LTTE. Maybe, on the synopsis it is not so, but on viewing the film, the

only impression an ordinary man with commonsense would derive, will be that not emphasis alone was. on LTTE, but the whole picture was a

song of eulogy on its terrorist activities, in spite of its being a banned organisation. The casual manner in which Mr. Vasantha Pai submitted that

crimes happen day in and day out and most often politics and crime go together, cannot really be an answer, to the issue involved in, the present

writ petition. Pictures in general, may portray groups of criminals, specializing in a type of crime or another, with political support and money

power that this film is totally unique in that the only purpose appears to be to project a terrorist organisation and its activities, which are still reigning

in the minds of the public, irrespective of the fact that the said organisation has been held to be an unlawful group and thereby stood banned in this

country. A faint attempt was made by Mr. Vasantha Pai to submit that reference to LTTE in the film, though clear, it does not contain anything

about its activities. This argument, after seeing the film, reminds of the famous Tamil proverb that ""a full pumpkin cannot be hidden in a morsel of

food"".

First Respondent''s counsel placed reliance on the judgment of Bombay High Court in Hiralal M. Shah Vs. The Central Board of Film

Certification Bombay and Others, , which dealt with the revisional powers exercised by the Government to deny certification to a film, based on a

chain of murders, that took place in the City of Pune and which created quite a sensation and ultimately led to criminal trial, came to be known as

Joshi-Abhyankar Murder trial"" and ended in conviction of the accused and imposition of death sentences. Before the matter was dealt with in

revision by the Government, the Examining Committee, consisting of five members, decided to grant ''A'' certificate without any cuts. The

Chairman, Central Board of Film Certification on his own, referred the film to the Revising Committee, consisting of nine members. Six members

felt that ''A'' Certificate should be granted, but differed amongst themselves about the cuts to be effected, while the remaining three members

declined to issue certificate for the release of the film. Thereupon a second Revising Committee was constituted by the Chairman and this

Committee Unanimously communicated refusal of certificate. A revised version was again presented and this time, both the Examining Committee

and the Revising Committee recommended refusal of certificate. The producers therein preferred an appeal before the Tribunal, which directed

issue of ''A'' Certificate by the Censor Board, after effecting of all cuts suggested by it. The Board then informed the producer that the matter stood

referred to the Government. This decision does not appear to have gone into the questions of subjudice. Probably, its facts stated in paragraph 2

of the judgment, can be re-read, and it shows that the picturisation was after the termination of the murder trial. The main principle laid down by

the Bombay High Court was that in a revision against an order of an appellate Tribunal, the revisional powers should be exercised sparingly and in

exceptional circumstances. While doing so, the Bombay High Court observed as follows:

The. question as to whether a film offends the guidelines as regards the violence, vulgarity or obscenity depends upon several factual circumstances

and in respect of which when the expert body, like an Appellate Tribunal, has opined, then it is desirable that the Central Government should not

casually disturb that conclusion and especially by exercise of powers by the Secretary who is not qualified to judge the effect of film on the public.

The Secretary should not have substituted his personal opinion in place of the decision given by an expert body constituted by the statutory

provisions. The decision recorded by the Secretary clearly indicates that the matter has been treated as another appeal against the order of the

Appellate Tribunal and that was certainly not permissible. The decision is, therefore, required to be set aside on the ground of exceeding

jurisdiction conferred u/s 6.

This decision, apparently, cannot help the first Respondent.

To support his contention that Courts should be slow in interfering with verdicts of Tribunals, Mr. Vasantha Pai referred to the decision

rendered by the Supreme Court in State of Gujarat Vs. Adam Kasam Bhaya, . In that case which dealt with a preventive order passed under the

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974), the Supreme Court stated that the rule that guilt must

be proved beyond reasonable doubt, was not applicable while the High Court was exercising power under Article 226 of the Constitution. It was

limited only to see whether the order was passed on some material or on no material. Adequacy of material was not to be examined. The

parameters dealing with preventive law are so well-known that it cannot be confused with the powers exercisable under Article 226 of the

Constitution when an error apparent on the face of the record, is brought to the notice of this Court, as in the instant case.

For the same purpose, the law laid down In the matter of an Application by F. Roddaway and Company to Register a Trade Mark (Reports

of Patent, Design and Trade Mark Cases XLIV page 27) was relied upon. It was pointed out in that case, that unless the Registrar had gone

clearly wrong, his decision ought not to be interfered with. Factually, it was found that the Registrar had treated the question involved as a practical

question. The principle laid down therein, in our view, has to be quite aptly applied to the instant case, for we are of the clear opinion that the

Tribunal had gone clearly wrong.

Relying upon the decision of the Supreme Court in Mis. Dwarkadas Marfatia and Sons v. Board of Trustees, Bombay Port AIR 1980 S.C.

1642 that it was not within the purview of a Court to substitute a decision by the constituted authority, simply because the decision sought to be

substituted is a better one. Mr. Vasantha Pai contended, that the decision of the Tribunal in the instant case must be upheld even if we were

inclined to take a different view. In that case, the Supreme Court found that the Bombay Port Trust had come to the conclusion that the only

possible way to develop the properties of Bombay Port Trust in compliance with the Town Planning Scheme was by allotting plots to holders of

major portions thereon. Accordingly, it took the policy decision to allot a plot to the tenant holding major portion thereon and to evict other tenants

from the plot. Under such circumstances, the Supreme Court stated that it could not be held that such policy decision was not in public interest.

That case arose under Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) and exemption from applicability of the Act to

public bodies. We have observed earlier and reiterate our view that the Tribunal had not kept in its view the guidelines for film certification and had

overlooked vital and salient material while arriving at its decision, apart from not adverting to the reasons given by the Petitioner-Board and how

they stood vitiated at least in a general way, though it was the opinion of the Tribunal, that it may not have to perform that exercise specifically.

Mr. Vasantha Pai then pointed out that two other (feature films ""I Love India"" and ""Roja"" Stood certified, though they had similar themes and

hence there was no justification to have treated this film differentially by refusing certification. He placed before us the synopsis of those two films

also. Each certification will depend on its own facts and following of the guidelines or otherwise, by the authorities concerned. No parallel can be

sought to be drawn, more so, when these two films did not form the subject-matter of the impugned order of the Tribunal, though a ground had

been raised by the first Respondent in the appeal. It is fairly clear that neither the ground raised by the first Respondent, nor the grounds put forth

by the Petitioner had been considered at all, in their proper perspective by the Tribunal. Even while referring to the case law, the Tribunal appears

to have considered a part of that, while not choosing to apply its mind to the whole facts on which principles were laid down. To cite an example,

while considering the judgment of the Supreme Court in S. Rangarajan Vs. P. Jagjevan Ram and Others, , the only portion referred to by the

Tribunal is that ""the producer may project his own message which the others may not approve of, but he has a right of ''think out'' and put the

counter-appeals to reason, that it is a part of a democratic give-and-take to which no one could complain and that the State cannot prevent open

discussion and open expression"". After observing that unlike the matter before the Supreme Court, the producer was not even projecting his own

message arid all that, was attempted was a total simulation of events, the Tribunal failed to note, that the first Respondent was neither thinking out

nor putting counter-appeals to reason, but was only projecting a banned organisation in all its glory. We have already an occasion to refer to the

observations of. the Supreme Court regarding limitations, even when truth was involved. We have further observed, that truth or otherwise, at this

stage, is in the melting pot and nothing can be taken or granted. Again, while considering about the right guaranteed under Article 19(1) of the

Constitution, the impact of Article 19(2) of the Constitution, amplified by the law laid down by the Supreme Court, has not been really touched

upon by the Tribunal.

We have considered the guidelines prescribed for film certification and we are unable to agree with the observations of the Tribunal, that the

supposed incapacity of Tamil Nadu Government to deal with breach of public order cannot be overcome by resort to censorship, for the factual

content projected in the film will indicate otherwise. The Tribunal ought to have considered the nature of impact the film would produce in the mind

of an average common viewer vis-a-vis the guidelines set out u/s 5-B(1) of the Act. Merely because the producer has spent huge sums of money in

producing this film, that cannot be held to be a passport for positive certification, irrespective of public interest and State interest, which form an

inseparable part of the guidelines listed out for film certification. The argument of Mr. Vasantha Pai was that there was a long delay in preferring of

the instant writ petition by the Petitioner, and that would suffice to show mala fides. Expatiating it, he pointed out though the order of the Tribunal

was passed on 27-6-1994, in pursuance of which the Board issued the certification on 25-7-1994, leading to the first Respondent spending

several lakhs to prepare good number of prints, the Board has chosen to take further time to initiate action through this writ petition, which, it could

have done before complying with the order of the Board and issuing a certificate for exhibition of this film. The impugned order of the Tribunal was

passed on 27-6-1994. It was despatched On 18-7-1994 and faxed on 21-7-1994. The instant writ petition was preferred on 4-8-1994. We are

unable to conceive any sinister delay, much less any mala fides.

On the available facts, the law laid down by the Supreme Court in The Registrar of Trade Marks Vs. Ashok Chandra Rakhit Ltd., cannot

ensure in favour of the first Respondent.

On the guidelines provided for certification we have audited the facts and scrutinised the law laid down by the Supreme Court, we are satisfied

that the Tribunal had disposed of the appeal preferred by the first Respondent, in a manner contrary of law, by overlooking the legal and factual

situation. We have no hesitation in holding that errors are apparent in the impugned order, which are bound lo be corrected by issue of a certiorari.

We quash the order of the Tribunaldated 27-6-1994 made in Appeal No. 5 of 1994 and direct revocation of certification ordered by it in relation

to Tamil Film ""KUTRAPATHIRIKKAI"". This writ petition is allowed. Parties to bear their own costs.

Mr. G. Vasantha Pai, learned Senior Counsel appearing on behalf of the first Respondent, made an oral plea for leave to appeal to Supreme

Court. We have based our decision on the law laid down by the Supreme Court and hence we are unable to accede to the plea made. Leave

refused.