Holding

The revocation of the ‘U’ certificate was invalid because the film did not contravene any of the grounds for restriction under Article 19(2) and the Revising Committees were lawfully constituted.

Summary

The producer S. Rangarajan sought a ‘U’ certificate for his Tamil film “Ore Oru Gramathile” which was initially refused, then granted after review by two Revising Committees. The Madras High Court later revoked the certificate on grounds that the film was biased, could incite caste‑based unrest and violated several guidelines. The producer and the Union of India appealed to the Supreme Court. The Court examined the scope of freedom of speech under Article 19(1)(a) and the permissible restrictions under Article 19(2), held that the film’s content did not threaten sovereignty, public order or morality, and that the Revising Committees were validly constituted under the Cinematograph Act. Consequently, the revocation of the ‘U’ certificate was set aside and the appeals were allowed, dismissing the writ petitions.

Issues considered

The validity of the High Court's revocation of the ‘U’ certificate granted to the film.
Whether the film’s content falls within the reasonable restrictions on freedom of expression under Article 19(2).
Whether the composition and procedure of the Revising Committees complied with the Cinematograph Act and Rules.
Whether anticipated public disorder can justify prior restraint on a film.

Legislation cited

Cinematograph Act, 1952s. 4, s. 5, s. 5A, s. 5B, s. 5C, s. 7B, s. 8
Cinematograph (Certification) Rules, 1983
Constitution of Indias. Article 19(1)(a), s. Article 19(2)

Subjects

freedom of speechArticle 19censorshipprior restraintfilm certificationreservation policycaste sensitivitypublic ordercinematograph act

Judgment

S. RANGARAJAN ETC.
A
v.
P. JAGJIVAN RAM & ORS.

MARCH 30, 1989

B [K.N. SINGH, K. JAGANNATHA SHETTY AND
KULDIP SINGH, JJ.]

Cinematograph Act, 1952 (Cinematograph (Certificate) Rules,
1983.

Sections 4, 5, 5A, B, C and 8/Guidelines ( 1)-(3) and notification
-
c dated January 21, 1987.

High Court revoking 'U' certificate granted by Censor Board-
Validity of High Court order-Duty of Censor Board-Obligatory duty
of state to protect freedom of expression.
D
Constitution of India-Articles 19( 1)(a) and 19(2)-Freedom of
speech and expression-Reasonable restrictions must be justified on
anvil of necessity and not quicks-Sand of convenience and
expediency-Obligatory duty of State to protect freedom of expression. 'r·
E The appellant, S. Rangarajan is a film producer. He produced a
Tamil film "Ore Oru Gramathile" and applied for certificate for exhi-
bition of the film. The examination committee upon seeing the film
refused to grant the Certificate but on a reference being made to the
2nd Revising Committee for review and recommendation, the Commit-
tee hy a majority of 5:4 recommended the grant of a 'U' certificate
F subject to deletion of certain scenes.

On 7.12.87 'U' certificate was granted which was challenged in
..
. '

the High Court by means of writ petitions. It was contended before the
High Court that the film is treated in an irresponsible manner, the
reservation policy of the Govt. has been projected in a biased manner
G and the so-called appeal in the film that "India is one" is a hollow
appeal which touches caste sensitivity of the Brahmin forward caste. It
was also asserted that the film would create law and order problem in
Tamil Nadu. The Writ Petitions were dismissed by the Single Judge but
upon appeal they were allowed and the 'U' certificate issued to the
appellant-producer was revoked. These two appeals, one by the pro-
H ducer of the film and the other by the Union of India have been filed by
204
S. RANGARAJAN v. P.J. RAM 205
-+- special leave of challenging the decision of the High Court.
A
The principal contentions raised on behalf of the appellants were:
(i) that the fnndamental right of freedom of free expression guaranteed
under the Constitntion covers even the medinm of movies; that the
opinion on the film ought not to be rested on the isolated passages
disregarding the main theme and its message; (ii) That the Court should B
not concern itself with the correctness or legality of the views expressed
in the film and the Court cannot limit the expression on any general
issue even if it is controversial and that the writings of the film must be
considered in a free and liberal manner in the light of the freedom of
expression gnaranteed nnder the Constitution. It was asserted that the
theme of the fllm is that reservation could be on the basis of economic
backwardness instead of caste. c
Counsel for the Respondents was critical about the manner in
which the reservation policy of the Govt. has been condemned and the
events and the characters protrayed in the film, as they are depicted in a
biased manner and reaction to the film in Tamil Nadu is bound to be D
volatile and likely to create law and order problem. Allowing the
appeals, this Court,

-I HELD: The motion pictures were originally considered as a
form of amusement to be allowed to titillate but not to arouse. They

-
were treated as mere entertainment and not an art or a means of E
expression. Movie motivates thought and action and assnres a high
degree of attention and retention. It makes its impact simultaneously
arousing the visual and aural senses. The movie had unique capacity
to disturb and arouse feelings. It has as mnch potential for evil as
it was for good. It has an equal potential to instil or cultivate violent
or good behaviour. [2110-E; 212G; 2130] F

Censorship by prior restraint is, therefore, not only desirable but
also necessary. [213E]

The Censors Board should exercise considerable circumspection on
movies affecting the morality or decency of our people and cultnral G
heritage of the country. The moral values in particular, should not be
allowed to be sacrificed in the guise of social change or cnltural
assimilation. [216G-H]

The Censors should be responsive to social change and they must
go with the current climate. The Censors may display more sensitivity H
/
206 SUPREME COURT REPORTS [1989] 2 S.C.R.

A to movies which will have a markedly deleterious effect to lower the -+--
moral standards of those who see it. [217C-D]

If the film is unobjectionable and cam1ot constitutionally he
restricted under Article 19(2), freedom of expression cannot he sup-
B pressed on account of threat of demonstration and processions or
threats of violence. That would tantamount to negation of the rule of
law and a surrender to black mail and intimidation. It is the duty of the
~
State to protect the freedom of expression since it is a liberty guaranteed ~

-
against the State. The State cannot plead its inability to handle the
hostile audience problem. It is its obligatory duty to prevant it and
protect the freedom of expression. [230C-D I
c
The Revising Committees have approved the film. The members
thereof 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. There is nothing wrong or contrary to the
D
Constitution in approving the film for public exhibition. [230E-F]

The framework of the Indian Constitution differs from the First
Amendment to the U.S. Constitution. "Article 19(l)(a) guarantees to all
citizens the right to freedom of speech and expression. The freedom of }---
the expression means the right to express one's opinion hy words of
E
mouth, writing, printing, picture or in any other manner, it would thus
include the freedom of communication and the right to propagate or
publish opinion. The communication of ideas could be made through
any medium, newspaper, magazine or movie. But this right is sub,ject to
reasonable restrictions on grounds set out unde.r Article 19(2). Reason-
-
able limitations can be put in the interest of sovereighty and integrity of )-
F
India, the security of the State, friendly relations with foreign States,
public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence. [212B-D]
..
In matters of certification of films, it is necessary to take prompt
action by the respective authorities. The producer who has invested a
G
large capital should not be made to wait needlessly. He has a statutory
right to have the validity of the film determined in accordance with law.
f
It would be, therefore, proper and indeed appreciative if the film is
reviewed as soon as it is submitted. It is not proper to form an opinion
hy dwelling upon stray sentences or isolated passages disregarding the
H main theme. [219E; 220B-C]
S. RANGARAJAN v. P.J. RAM 207

Freedom of expression is the rule and it is generally taken for A
granted. Every one has a fundamental right to form his own opinion on
any issue of general concern. He can form and inform by any legitimate
means. [223C]

Democracy is Government by the people via open discussion.
The democratic form of government itself demands its citizens an B
\ active and intelligent participation is a basic features and a rational
~ process of democracy which distinguishes it from all other forms
of govt. Public discussion on issues relating to administration had
positive value. l223D-E]

Our commitment to freedom of expression demands that it cannot
be suppressed unless the situations created by allowing the freedom are C
pressing and the 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 interests. In
other words, the expression should be inseparably locked up with D
the action contemplated like the equivalent of a "spark in a power
keg". [226G-H]

It is difficult to understand how the expression in the tilm with
criticism of reservation policy or praising the colonial rule will affect
the security of the State or sovereignty and integrity of India. There is E

- no utterance in the tilm threatening to overthrow the Govt. by unlawful
or unconstitutional means. There is no talk of secession either nor is
there any suggestion for impairing the integration of the country. The
film seems to suggest that the existing method of reservation on the
basis of caste is bad and reservation on the basis of economic backward-
ness is better. The tilm also deprecates exploitation of people on caste p
considerations. [222G-H; 223A]

The fundamental freedom under Art. 19(l)(a) can be reasonably
restricted only for the purposes mentioned in Art. 19(2) and the restric-
tion must be justified on the anvil of necessity and not the quicks and of
convenience and expediency. Open criticism of Government policies G
-~. and operations is not a ground for restricting expression. We must
practice tolerance to the views of others. Intolerance is as much danger-
ous to democracy as to the person himself. l230H; 231A-B]

The Court allowed the appeals, set aside the judgment of the High
Court and dismissed the writ petitions. [23IB-C] H
208 SUPREME COURT REPORTS [1989] 2 S.C.R.

A Mutual Film Corporation v. Industrial Commission, 235 U.S. 230
(1915) referred to, Burstyn v. Wilson, 343 U.S. 495 referred to,
Schenek v. United States, 249 U.S. 47 (1919) referred to, Santosh Singh
v. Delhi Administration, [1973] 3 SCR 533 followed, K.A. Abbas v.
Union of India, [1971] 2 SCR 446 referred to, Ramesh v. Union of
India, [1988] 1 SCC 668; Bhagwat Charan Shukla v. Provincial
B Government, AIR 1947 Nag 1 at 676, Rajkappoor v. Laxman, [1980] 2
SCR 512, Maneka Gandhi v. Union of India, [1978] 2 SCR 621;
Naraindas v. State of Madhya Pradesh, [1974] 3 SCR 624; Sakal v. --4
Union of India, [1962] 3 SCR 842; Whitney v. California, )274] U.S.
357, 375-378, 1927; Manohar v. Govt. of Bombay, AIR 1950 Bombay
210; Niharender Dutt Majumdar v. Emperor, AIR 1942 FC 22 and
Handyside v. United Kingdom, [1975] EHRR/737 at p. 754 referred to.
c
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1668
and 1669 of 1988.

From the Judgment and Order dated 29.4.1988 of the Madras
D High Court in W.R. Nos. 469 and 488 of 1988.

Soli J. Sorabjee, V.C. Mahajan, C.A. Sundaram, U.A. Rana,
M. Mudgal, Ms. Indu Malhotra, C.V. Subba Rao, A. Mariar Autham,
Aruna Mathur, N.N. Sharma, Jose Varghese, Bhagwan Das, R. ~
Mohan, R.A. Perumal and A.V. Rangam for the appearing parties.
E
The Judgment of the Court was delivered by

K. JAGANNATHA SHETTY, J. These appeals by leave are
from the judgment of the Division Bench of the Madras High Court
-
revoking the 'U-Certificate' issued to a Tamil film called 'Ore Oru
F Gramathile" (In one Village) for public exhibition. Civil Appeal Nos.
1668 and 1669 of 1988 are by the producer of the film and the Civil
Appeal nos. 13667 and 133668 of 1988 are by the Union of India.

The story of 'Ore Oru Gramathile" can be summarised as
follows:
G
"A Brahmin widower, Shankara Sastry, has a talented daughter
Gayathri. He apprehends that she would not be able to get admission
to college because she belongs to a Brahm in community. He seeks
advice from his close friend Devashayam, a Tehsildar. The Tehsildar
who otherwise belongs to a very poor family and whose father was
H working in a local Church responds with gratitude. He divises a
S. RANGARAJAN v. P.J. RAM {SHETfY, J.] 209

-{· method to help Gayathri because it was through Sastry's father that he
A
got proper education and rose to become a Tahsildar. He prepares a
false certificate showing Gayathri as Karuppayee belonging to an Adi
Dravida Community and as an orphan. He issues the certificate under
the reservation policy of the Government for the benefit of 'backward
communities' indentified on caste consideration. On the basis of the
\ false certificate, Karuppayee gets admitted to college and enters B
1 I.A.S. witness to this arrangement is the brother-in-law of Tahsildar
;.. called Anthony who later turns out to be a villian of the piece.:-

- "Years later, Karuppayee, who was working in Delhi is sent to a
rural village called Annavayil as a Special Officer for flood relief
operations. Her father, Shankara Sastry happens to work in the same
c
village as Block Development Officer. However, both of them pretend
f,- not to recognise each other. Karuppayee takes her work seriously and
improves the living conditions of people to such· an extent that she is
held by them in high esteem. By a coincidence, after the death of the
Tahsildar, Anthony comes to live in the same village and recognises
Karuppayee. He starts blackmailing her and threatens to reveal the D
fraudulent means by which she got the caste certificate. His attempt is
to extract money from her frequently. One evening when he visits
Karuppayee's house, he is confronted by Shankara Sastry who puts a
halt to his blackmailing. Later Anthony dies of sudden heart attack but
-J. not before he informs the Government about the facts relating to
Karuppayee. Upon preliminary enquiry, the Government suspends E
both Karuppayee and her father and eventually they are put on trial in
the Court. The people of the village resentful of the action taken
against Karuppayee rise as one man and demonstrate before the Court
in a peaceful manner for her release. They also send petitions to the
--'
.., Government."

"Karuppayee and her father admit in the Court the fact of their
having obtained the false caste certificate but they attribute it to
F

circumstances resulting by Government reservation policy on caste
basis. They say that they are prepared to undergo any punishment.
They contend hat some politicians are exploiting the caste considera-
tion and that would be detrimental to national integration. They also G
~ argue that the reservation policy should not be based on caste, but
could be on economic backwardness. Just about the time when the
judgment is to be pronounced the Court receives intimation from
Government that in the light of petitions received from the public, the
case against Karuppayee and her father stands withdrawn. Karup-
payee goes back to her Government job with jubilent people all H
round."
210 SUPREME COURT REPORTS [1989] 2 S.C.R.

This is the theme of the picture presented. As usual, it contains
A
some songs, dance and side attractions to make the film more
delectable.

On August 7, 1987, the producer applied for certificate for
exhibition of the film. The examining committee upon seeing the film
B unanimously refused to grant certificate. The appellant then sought for
review by a Revising Committee which consisted of nine members. )
This Committee reviewed the film. Eight members were in favour of ~
grant of certificate and one was opposed to it. The Chairman of the
Censor Board however, referred the film to Second Revising Commit-
tee for review and recommendation. This again consisted of nine
members and by majority of 5:4 they recommended for issue of 'U'
-
c certificate subject to deletion of certain scenes. The 'U' certificate
means for unrestricted public exhibition as against 'A' certificate ~
restricted to adults only. The minority expressed the view that the film
is treated in an irresponsible manner. The reservation policy of the
Government is projected in a highly biased and distorted fashion.
D They have also stated that the so called appeal in the film "India is
One" is a hollow-appeal, which in effect touches caste sensitivity of the
Brahmin forward caste. One of the members felt that the impact of the
film will create law and order problem. Another member said that the
film will hurt the feelings and sentiments of certain sections of the ->--
public. But the majority opined that the theme of the film is on the
E reservation policy of the Government suggesting that the reservation
could be made on the basis of economic backwardness. Such a view
could be expressed in a free country like India, and it did not violate
any guideline.

On December 7, 1987, 'U' certificate was granted for the exhibi-
f-
F tion of the film which was challenged before the High Court by way of ~-
writ petitions. The writ petitions were dismissed by the Single judge,
but the Division Bench upon appeal allowed the writ petitions and
revoked the certificate. The Division Bench largely depended upon
the minority view of the Second Revising Committee and also the
opinion of the Examining Committee. The producer of the film and the
G Government of India by obtaining leave have appealed to this Court.
The film has since been given National Award by the Directorate of
Film Festival of the Government of India.

In these appeals, the fundamental point made by Mr. Soli Sorab-
jee, learned counsel for the producer is about the freedom of free
H expression guaranteed under our Constitution even for the medium of
S. RANGARAJAN v. P.J. RAM [SHETI'Y, J.J 211

movies. The counsel argued that the opinion on the effect of the film
A
should not be rested on isolated passages disregarding the main theme
and its message. The Film should be judged in its entirety from the
point of its overall impact on the public. The writings of tile film must
be considered in a free, fair and liberal spirit in the light of the freedom
of expression guaranteed under our Constitution. The counsel said
that the Court is not concerned with the correctness or legality of the B
views expressed in the film and the Court cannot limit the expression
·- on any general issue even if it is controversial. Mr. Mahajan for the
Union of India supported these submissions. Mr. Varghese learned
counsel for the contesting respondents did not dispute most of the
proposition advanced for the appellants. He was, however, critical
about the manner in which the reservation policy of the Government
has been condemned and the events and characters shown in the film. C
He contended that they are depicted in a biased manner and reaction
to the film in Tamil Nadu is bound to be volatile.

Before examining these rival contentions, a few general observa-
tions may be made as to the utility of movies and the object of the film D
Censors Board. The motion pictures were originally considered as a
form of amusement to be allowed to titillate but not to arouse. They
were treated as mere entertainment and not an art or a means of
expression. This theory was based on the concept that motion picture
.-1,. wa~ a business "pure and simpe originated and conducted for profit,
like other spectacles." It was considered strictly as an "amusement E
industry". It was so held in 1915 by the unanimous decision of the
American Supreme Court in Mutual Film Corporation v. Industrial
Commission, 236 U.S. 230 (1915). It was not without significance since
there were no talking pictures then. The talking pictures were first
produced in 1926, eleven years after the Mutual decision (Encyclo-
·-', pedia Britinnica) (1965 Vol. 15 p. 902). The later decisions of the F
t" American Supreme Court have therefore declared that expression by
means of motion pictures is included within the free speech and free
press guaranty of the First Amendment. (See Burstyn v. Wilson, 343
U.S. 495). The First Amendment to the U.S. Constitution provides:
"Congress shall make no law ... abridging the freedom of speech, or
of the press." This Amendment is absolute in terms and it contains no G
....I. exception for the exercise of the right. Heavy burden lies on the State
to justify the interference. The judicial decisions, however, limited the
scope of restriction which the State could impose in any given
circumstances. The danger rule was born in Schenek v. United States,
249 U.S. 47 (1919). Justice Holmes for a unanimous court, evolved the
test of "clear and present danger". He used the danger test to H
212 SUPREME COURT REPORTS [1989] 2 S.C.R.

A determine where discussion ends and incitement or attempt begins. -+-
The core of his position was that the First Amendment protects only
utterances that seeks acceptance via the democratic process of dis-
cussion and agreement. But "Words that may have all the effect of
force" calculated to achieve its goal by circumventing the democratic
process are however, not so protected.
B
The framework of our Constitution differs from the First
Amendment to the U.S. Constitution. Article 19(1)(a) of our _..
Constitution guarantees to all citizens the right to freedom of speech
and expression. The freedom of expression means the right to express
one's opinion by words of mouth, writing, printing, picture or in any
c other manner. It would thus include the freedom of communication
and the right to propagate or publish opinion. The communication of
ideas could be made through any medium, newspaper, magazine or
movie. But this right is subject to reasonable restrictions on grounds
set out under Article 13(2) of the Constitution. The reasonable limi-
tations can be put in the interest of sovereignty and integrity of India,
D the security of the State, friendly relations with foreign States, public
order, deceny or morality or in relation to contempt of court, defama-
tion or incitement to an offence. The Framers deemed it essential to
permit imposition of reasonable restrictions on the larger interests of
the community and country. They intended to strike a proper balance
between the liberty guaranteed and the social interest specified under }-
E Article 19(2). (See Santokh Singh v. Delhi Administration, [1973] 3
SCR 533).

This is the difference between the First Amendment to the U.S,
Constitution and Article 19(1)(a) of our Constitution. The decisions
bearing on the First Amendment are, therefore, not useful to us except
F the broad principles and the purpose of the guaranty.

Movie doubtless enjoys the guaranty under Article 19( l)(a) but
,.
(

there is one significant difference between the movie and other modes
of co~munication. The movie cannot function in a free market place
like the newspaper, magazine or advertisement. Movie motivates
G thought and action and assures a high degree of attention and reten-
tion. It makes its impact simultaneously arousing the visual and aural }-
senses. The focusing of an intense light on a screen with the dramatiz-
ing of facts and opinion makes the ideas more effective. The combina-
tion of act and speech, sight and sound in semi-darkness of the theatre
with elimination of all distracting ideas will have an impact in the
H minds of spectators. In some cases, it will have a complete and im-
S. RANGARAJAN v. P.J. RAM [SHETI'Y, J.] 213

mediate influence on, and appeal for every one who sees it. In view of
the scientific improvements in photography and production the pre- A
sent movie is a powerful means of communication. It is said: "as an
instrument of education it has unusual power to impart information, to
influence specific attitudes towards objects of social value, to affect
emotions either in gross or in microscopic proportions, to affect health
l
\ in a minor degree through sleep disturbance, and to affect profoundly B
the patterns of conduct of children." (See Reader in Public Opinion
+- and Communication Second Edition by Bernard Berelson and Morris
Janowitz p. 390). The authors of this Book have demonstrated (at 391
to 401) by scientific tests the potential of the motion pictures in forma-
tion of opinion by spectators and also on their attitudes. These tests
have also shown that the effect of motion pictures is cumulative. It is
proved that even though one movie relating to a social issue may not c
/"' · significantly affect the attitude of an individual or group, continual
exposure to films of a similar character will produce a change. 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 instil or cultivate violent or good behaviour. With D
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. Censor-
ship by prior restraint is, therefore, not only desirable but also
necessary. E

Here again we find the difference between the First Amendment
to the U.S. Constitution and Article 19(1)(a) of our Constitution. The
First Amendment does not permit any prior restraint, since the
___... guaranty of free speech is in unqualified terms. This essential dif-
..,. ference was recognised by Douglas, J., with whom Black, J., con-
curred in Kingsley Corporation v. Regents of the University of New
p

York, 3 L.Ed. 1512 at 1522. In holding that censorship by "prior
restraint" on movies was unconstitutional, the learned Judge said:

"If we had a provision in our Constitution for
"reasonable" regulation of the press such India has G
included in hers, there would be room for argument that
censorship in the interests of morality would be permis-
sible. Judges sometimes try to read the word "reasonable"
into the First Amendment or make the rights it grants
subject to reasonable regulation ..... But its language, in
terms that are absolute is utterly at war with censorship. H
214 SUPREME COURT REPORTS [1989) 2 S.C.R.

Different questions may arise as to censorship of some i
A
news when the nation is actually at war. But any possible
exceptions are extremely limited."

The Cinematograph Act 1952 ("The Act") which permits cen-
sorship on movies is a comprehensive enactment. Secttion 3 of the Act
B provides for constitution of Board of Film Censors. Section 4 speaks of
examination of films. A film is examined in the first instance by an
f
Examining Committee. If it is not approved, it is further reviewed by a -~
Revising Committee under Section 5. Section 5A states that if after
examining a film or having it examined in the prescribed manner, the
Board considers that the film is suitable for unrestricted public exhibi-
tion, such a certificate is given which is called 'U' certificate.
-
c
Section 5(a) provides principles for guidance in certifying films. ---\
It is significant to note that Article 19(2) has been practically read into
Section 5(B)(l). Section 5(C) confers right of appeal to Tribunal
against refusal of certificate. Under Section 6, the Central Govern-
D ment has revisional power to call for the record of any proceeding in
relation to any film at any stage, where it is not made the subject
matter of appeal to the Appellate Tribunal.

Under Section 8 of the Act, the Rules called the Cinematograph }-
(Certification) Rules 1983 have been framed. Under Section 5(B)(2)
E the Central Government has prescribed certain guidelines for the
Censors Board. Guideline (1) relates to the objectives of film censor-
ship. The Board shall ensure that: (a) the medium of film remains
responsible and sensitive to the values and standards of society; (b)
artistic expression and creative freedom are not unduly curbed and (c)
censorship is responsive to social change. ~
F
Guideline (2) requires the Board to ensure that: (i) anti-social
activities such as violence not glorified or justified; (ii) 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
G sensibilities are not offended by vulgarity, obscenity and depravity;
(vi) the sovereignty and integrity of India is not called in question; (vii) f
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.

H Guideline (3) also requires the Board to ensure that the film: (i)
S. RANGARAJAN v. P.J. RAM ISHElTY, J.] 215

is judged in its entirety from the-point of view of its overall impact and;
A
(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 permitted mainly on social
interest specified under Article 19(2) of the Constitution with
emphasis on maintenance of' values and standands of society. There- B
fore, the censorship by prior restraint must necessarily be reasonable
that could be saved by the well accepted principles of judicial review.

In K.A. Abbas v. Union of India, [1971] 2 SCR 446 a Constitu-
tion Bench of this court considered important questions relating to
pre-censorship of cinematograph films in relation to the fundamental
right of freedom of speech and expression. K.A. Abbas, a noted c
Indian journalist and film producer produced a short documentary
film called "A tale of Four Cities". In that film he sought to contrast
the self indulgent life of the rich in Metropolitan cities with the squalor
and destitution of labouring masses who helped to construct the
imposing buildings and complexes utilised by the rich. The film also D
goes on to explore the theme of exploitation of women by men, deal-
ing in particular prostitution. Abbas applied to the Board of Film
Censors for a 'U' certificate, permitting unrestricted exhibition of the
film. He was informed by the regional officer that the Examining
Committee had provisionally concluded that the film should be
restricted to adults. The Revising Committee concurred in this result, E
whereupon Abbas, after exchanging correspondence with the Board,
appealed to the Central Goverrunent. The Goverrunent decided to grant
'U' certificate provided that the scenes in the red light district were
deleted from the film. Abbas challenged the action of the Board mainly
on four issues out of which two did not survive when the Solicitor
·.,.. General stated before the C~urt that the Goverrunent would set on F
· foot legislation to effectuate the policies at the earliest possible date.
The two issues which survived thereupon were: (a) that pre-censorship
itself cannot be tolerated under the freedom of speech and expression;
(b) that even if it were a legitimate restraint on the freedom, it must be
exercised on very definite principles which leave no room for arbitrary
.\ action. G

With regard to the power of pre-censorship, Hidayatullah, C.J.,
observed (at473-74):

"The task of the censor is extremely delicate
The standards that we set out for our censors must make a H
216 SUPREME COURT REPORTS [1989) 2 S.C.R.

A substantial allowance in favour of freedom thus leaving a
vast area for creative art to interpret life and society with
some of its foibles along with what is good. We must not
look upon such human relationships as banned in toto and
for ever from human thought and must give scope for talent
to put them before society. The requirements of art and
B literature include within themselves a comrehensive, view
of social life and not only in its ideal form and the line is to
be drawn where the average man moral man begins to feel
embarassed or disgusted at a naked portrayal of life with-
out the redeeming touch of art or genius of social value. If
l
the depraved begins to see in these things more than what
an average person would, in much the same way as it is
c wrongly said, a Frenchman sees a woman's legs in every-
thing, it cannot be helped. In our scheme of things ideas
having redeeming social or artistic value must also have
importance and protection for their growth."

D Recently, Sabyasachi Mukharji, J., in Ramesh v. Union of India,
[1988) 1SCC868 which is popularly called "TAMAS" case laid down
the standard of judging the effect of the words or expression used in
the movie. The learned Judge quoting with approval of the observa-
tion of Vivian Bose, J., as he then was, in the Nagpur High Court in
the case of Bhagwati Charan Shukla v. Provincial Government, AIR
E 1947 Nag 1(at676):

"That the effect of the words must be judged from
the standards of reasonable, strong minded, firm and
courageous men, and not those of weak and vacillating.
This in our opinion is the correct approach in judging the /
F effect of exhibition of a film or of reading a Book. It is the ~
standard of ordinary reasonable man or as they say in
English law, "the man on the top of a Cl&mpham
omnibus."

We affirm and reiterate this principle. The standard to be
G applied by the Board or courts for judging the film should be that of an j
ordinary man of common sense and prudence and not that of an out of
the ordinary or hypersensitive man. We, however, wish to add a word
more. The Censors 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 ncit be
H allowed to be sacrificed in the guise of social change or cultural assimi-
S. RANGARAJAN v. P.J. RAM [SHETIY, J.] 217

lation. Our country has had the distinction of giving birth to a galaxy of A
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 Shankaracharya, Ramanu-
jacharya, Madhwacharya, Chaitanya Maha Prabhu, Swami Ram
Krishan Paramhansa, Guru Nanak Sant Kabir and Mahatma Gandhi, B
\' have all enlightened our path. If one prefers to go yet further back, he
will find "TIRUKKURAL" the ethical code from Tiruvalluvar teach-
J..
ing which is "a general human morality and wisdom." Besides, we

- have the concept of "Dharam" (righteousness in every respect) a
unique contribution of Indian civilization to humanity of the world.
These are the bedrock of our civilization and should not be allowed to C
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 1
effect to lower the moral standards of those who see it. Krishna Iyer, D
J., in Rajkapoor v. Laxman, I1980 I 2 SCR 512 in words meaningful
expressed similar thought. The learned Judge said (at 517):

"The ultimate censorious power over the Censors be-
longs to the people and by indifference, laxity or abetment,
pictures which pollute public morals are liberally certified, E
the legislation, meant by Parliament to protect people's
good morals, may be sabotaged by statutory enemies
within."

With these prefactory remarks, let us now turn to the reasons
which weighed with the High Court to revoke the 'U' certificate and F
rule out the film altogether. The High Court has found fault with the
Constitution of the First Revising Committee. It has held that the
Revising Committee was constituted hurriedly and its constitution by
"delegate Board Member" was illegal and without authority of law.
The Committee also showed unusual favour to the producer by review-
ing the film with hot haste. In the absence of a First Revising Commit- G
tee having come into existence as known to law; the High Court said
that the constitution of the Second Revising Committee was invalid and
inoperative.

We do not think that the High Court was justified in reaching
this conclusion. Under the rules, the Regional Officer shall appoint an H
218 SUPREME COURT REPORTS 11989] 2 S.C.R.

A
Examining Committee to examine the film. The reports and records
relating thereto shall be treated as confidential. The Rule 22 inter alia,
+
states that after screening the film, the Examining Officer shall within
three working days send the recommendations of all the members of
the Examining Committee to the Chairman. Rule 24(1) provides for
constitution of a Revising Committee. It states that on receipt of the
B record referred to in rule 22, the Chairman may, of his own motion or
on the request of the applicant, refer the movie to a Revising Commit-
tee. In the instant case, the Chairman did not constitute the first Revis- _._
ing Committee but a member of the Board did. The question is
whether the member of the Board was competent to constitute the
Revising Committee. Our attention was drawn to the Government ,.
order dated January 21, 1987 made under sec. 7(B) of the Cinemato-
c graph Act. The order reads;
·---\
"No. 803/1/86-F(C)
Government of India
Ministry of Human Resource Development
D Department of Culture.
New Delhi, the 21st January, 1987

ORDER

In exercise of the powers conferred by Sec. 7B of the ~-
E Cinamatograph Act, 1952 (37 of 1952) (hereinafter refer-
red to as the said Act), the Central Goverment hereby
directs that any power, authority or jurisdiction exercisable
by the Board of film, Certification (hereinafter referred to
...
as the Board) in relation to matters specified in sec. 4,
sub-secs. (3) and (4) of sec. 5, sec. 5-A and sec. 7C of the
F said Act shall also be exercisable subject to the condition )>--
given below by the following members of the Board at the "4
Regional Office indicated against each, with immediate
effect and until further orders:

1. Shri Samik Banerjee Calcutta
G 2. Ms. Maithreyi Ramadhurai Madras
3. Dr. B.K. Chandrashekar Bangalore

xxx xxx xxx xxx''

This order clearly states that the power of the Board shall also be
H exercisable by the specified members within their regional office. For
S. RANGARAJAN v. P.J. RAM ISHETIT, J.] 219

-k Madras region Ms. Maithrayi Ramadhurai has been constituted to
A
·exercise such powers.

It cannot be contended that the Central Government has no
power to delegate the powers or to issue the said order. Sec. 7(B)
empowers the Central Government to issue general or special order
directing that any power, authority or jurisdiction exercisable by the B
I Board under the Act shall be exercisable also by the Chairman or any
. other member of the Board. The section further provides that anything
done or action taken by the Chairman or other member specified in
the order shall be deemed to be a thing done or action taken by the
- Board. From the provisions of sec. 7B read with the Government
order dated January 21, 1987, it becomes clear that the constitution of
the First Revising Committee by the member at the Madras Regional c
,._, Office is not vulnerable to any attack. It is legally justified and
' unassailable. The conclusion to the contrary reached by the High
Court is apparently unwarranted.

We also do not find any justification for the observation of the D
High Court that there was unusual favour shown to the producer by
the First Revising Committee in reviewing the film. It is true that the
film was reviewed within 2-3 hours of the presentation of the applica-
tion. But there is no reason to attribute motives either to members of
~ the Committee or to the producer. In matters of certification of films,
it is necessary to take prompt ac\ion by the respective authorities. The E
producer who has invested a large capital should not be made to wait
needlessly. He has a statutory right to have the validity of the film
determined in accordance with law. It would be, therefore, proper and
indeed appreciative if the film is reviewed as soon as it is submitted.
--~
There are two other side issues which may be disposed of at this F
~ stage. The scene with song No. 2 in reel No. 3 and the comments by
the heroine of looking at the photo of Dr. Ambedkar, have come
under·serious criticism. It is said that the song has the effect of spread·
ing 'Kulachar' which is 'Poisonous message' to the depressed classes not
to educate their children. The complaint, if true, is serious. We, there·
fore, gave our anxious consideration to the grievance. We, as did the G
.l High Court, viewed the movie. The cobbler sings the song in question
with his grandson who is eager to go to school. The song contains
references to Kamaraj, Anna and MGR who without even college
education became Chief Ministers. The cobbler asks the grandson:
"What are you going to achieve by education? and don't forsake the
profession you know and you can educate yourself as a cobbler." H
220 SUPREME COURT REPORTS [1989) 2 S.C.R.

A Whil.e these and other exchanges are going on between the cobbler and
grandson, the· heroine comes and insists that the boy should go to
school. She promises to contribute Rs.50 as an incentive to the cobbler
every month and also to make good his income deprived of by the
boy's earning. They agree to her suggestion with "Vanakkam, Vanak-
kam". The song thus ends with a happy note and the cobbler agrees to
B send his grandson to school. It is true as pointed out by counsel for the
respondents that one or two references in the song are not palatable, i
but we should not read too much into that writing. It is not proper to
form an opinion by dwelling upon stray sentences or isolated passages
disgregarding the main theme. What is significant to note is that the
cobbler ultimately does not insist that his grandson should continue
C the family pursuits. He accepts the suggestion made by the heroine. It
is, therefore, wrong to conclude that the song was intended to convey
poisonous message against the interests of depressed classes.

The criticism on the alleged comments on Dr. Ambedkar is
equally unsustainable. The confusion perhaps is due to the pronoun-
D ced accent of an English word in the course of Tamil conversation. The
matter arises in this way: Sas try shows the photograph of Dr.
Ambedkar to heroine and enquires whether she likes it. Then she
makes certain comments. According to the High Court, she states,
"Dr. Ambedkar worked for the poor. Not for 'par'." It is said that
'par' in Tamil means equality and if she says 'not for the par', it means
E that Dr. Ambedkar did not work for equality. If she states like that, it
is certainly objectionable since Dr .. Ambedkar did everything to have
an egalitarian society. But while viewing the film, we could not hear
any such word used by the heroine. On the other hand, we distinctly
noted her saying, "Dr. Ambedkar worked for the poor, Not for
power .. " This being the remark there is no basis for the criticism of the
F High Court.

The last complaint and really the nub of the case for the respon-
dent is about the reel No. 14 covering the court scene where Karup-
payee and Sastry are prosecuted for offence of obtaining a false caste
certificate. The reel No. 14 contains almost a dialogue between the
G prosecution lawyer and Karuppayee. She criticises the reservation
policy of the Government. She states that during the British regime,
the people enjoyed educational freedom, and job opportunities which
were based on merit criteria and not vote caste in a particular consti-
tuency. Then the prosecution lawyer puts a question "why do you
regret this Madam? Was not 'Bharat Matha' under shackles then?"
H She replies: "You are right. Then "Bharat Matha" was in chains
S. RANGARAJAN v. P.J. RAM [SHETfY, J.] 221

t (Vilangu, is the Tamil word used for shackles which also means
A
animals). Nt>w "Bharat Matha" is under animals' hands." On a further
question from the prosecutor she explains that her reference to
'animals' hands' is only to those who incite caste, language and
communal fanaticism, thus confusing people and making it their pro-
fession. She also states that it is the Government and its laws that have
1 made her and her father to tell a lie. The presiding Judge interrupts B
\ with a question: "What is wrong in the Government approach? Can
-~- you elaborate?" She replies: "That it is wrong not to give credence to
her merit and evaluate the same on the basis of her caste and such
evaluation would put a bar on the progress." She goes on to explain
"Your laws are the barriers Sir. You have made propaganda in nook
and comer stating "Be an Indian, Be an Indian". And ifI proudly say I
am an Indian then the Government divides saying 'no, no, no, ..... c
/- You are a Brahmin, you are Christian, you are a Muslim. It is the
Government that divides." Then she puts a question to herself: "What
is the meaning of "Be an Indian?" She explains that it must be without
caste, creed and communal considerations, from Kashmir to Kanya-
kumari, the country must be one. She then blames the Government D
with these words: "The Government in dealing with all has no one
face. Take any application form they want to know your caste and
religion. When all are Indians where is the necessity for this question.
You have divided the people according to caste. Then if you reel off
+ on "National integration" will not the public laugh."
E
As to the reservation policy to those who are backward she says:
.... "On Gods name, I have no objection in providing all concessions to
those who are backward. The list of those belonging to forward
sections and backward sections could be prepared on the basis of
··---\ economic considerations. And those below a specified limit of income
be included in the backward list."
• F
I

How did the High Court look at it? On the remark of heroine as
to the situations that existed during British administration, the High
Court observed thus:

"It is preposterous and offensive to claim that education G
was independent when India was under British rule and
that, after independence it is not there."

The High Court also said:

"That any denigration of Rule of law would never H
222 SUPREME COURT REPORTS [1989) 2 S.C.R.

bring orderly society. To preach that it is-only law that
A prompted them to utter falsehood and in its absence they
would not have done it is a wrong way presenting a view
point."

As to the allegations that 'Bharat Matha' is now in the hands of
B politicians, who are instigating the masses on the basis of caste and
language, etc., the High Court remarked: ·

"If this sort of decrying India for being an indepen-
dent nation is to be projected in films repeatedly, then in
course of time, citizens will loose faith in the integrity and
sovereignty of India. With this sort of glorification made,
c how could it be claimed that the film stands for national
integration. That was why one Member rightly said that it
is a hollow-claim. Hence Guideline 2(vi) and (vii) are
contravened."

D On the total impact of the film, the High Court observed:

"That certain peculiar factors will have to be taken
into account because of guidelines 3(i) and 3(ii). This film is
in Tamil. It deals with reservations now extended to large
sections of people on a particular basis, and who have suf-
E fered for Centuries, and at a time when they have not at-
tained equality and when their valuable rights which are
secured under the Constit\ition is attempted to be taken
away, they get agitated. This_ film taken in Tamil for Tamil
population on being screened in Tamil Nadu, will certainly
be viewed in the background of what had happened in
p Tamil Nadu during the preceding four decades, and the
reactions are bound to be volatile."

We find it difficult to appreciate the observations of the High
Court. We fail to understand how the expression in the film with
criticism of reservation policy or praising the colonial rule will affect
G the security of the State of sovereignty and integrity of India. There is
no utterance in the film threatening to overthrow the Government by
unlawful or unconstitutional means. There is no talk for secession
either. Nor there is any suggestion for impairing the integration of the
country. All that the film seems to suggest is that the existing method
of reservation on the basis of caste is bad and reservation on the basis
H of economic backwardness is better. The film also deprecates exploita-

'
S. RANGARAJAN v. P.J. RAM {SHETIY, J.) 223
Jr tion of people on caste considerations. This is the range and rigor of
A
the film.

The High Court, however, was of opinion that public reaction to
the film, which seeks to change the system of reservation is bound to
be volatile. The High Court has ruso stated that people of Tamil Nadu
\ who have suffered for centuries will not allow themselves to be B
· . deprived of the benefits extended to them on a particular basis. It
• seems to us that the reasoning of the High Court runs a foul of the
democratic principles to which we have pledged ourselves in the Con-
- stitution. In democracy it is not necessary that every one should sing
the same song. Freedom of expression is the rule and it is generally
taken for granted. Every one has a fundamental right to form his own
)-- opinion on any issu'i of general concern. He can form and inform by
·c
-' any legitimate means:

The democracy is a Government by the people via open discus-
sion. The democratic form of government itself demands its citizens an
active and intelligent participation in the affairs of the community. The D
public discu.ssion with people participation is a basic feature and a
rational process of democracy which distinguishes it from all other
forms of government. The democracy can neither work nor prosper
+ unless people go out to share their views. The truth is that public
discussion on issues relating to administration has positive value. What
Falter Lippmann said in another context is relevant here: E

- "When men act on the principle of intelligence, they go out
to find the facts ..... When they ignore it, they go inside
themselves and find out what is there. They elaborate their
prejudice instead of increasing tpeir knowledge.
F
In Maneka Gandhiv. Union of India, [197812 SCR 621 Bhagwati
J., observed at 696:

"Democracy is based essentially on free debate and
open discussion, for that is the only corrective of Govern-
ment action in a democratic set up. If democracy means G
government of the people by the people, it is obvious that
every citizen must be entitled to participate in the demo-
cratic process and in order to enable him to intelligently
exercise his right of making a choice, free and general
discussion of public matters is absolutely essential."
H
224 SUPREME COURT REPORTS [19891 2 S.C.R.

The learned judge in Naraindas v. State of Madhya Pradesh, -1-
A
[1974] 3 SCR 624 while dealing with the power of the State to select
text books for obligatory use by students said at 650:

"It is our firm belief, nay, a conviction which consti-
lutes one of the basic values of a free society to which we
B are wedded under our Constitution, that there must be
freedom not only for the thought that we cherish, but also I
for the thought that we hate. As pointed out by Mr. Justice ,,\
Holmes in Abramson v. United States, 250 U.S. 616: "The
ultimate good desired is better reached by free trade in
ideas-the best test of truth is the power of the thought to
get itself accepted in the competition of the market." There
c must be freedom of thought and the mind must be ready to
receive new ideas, to critically analyse and examine them ~
and to accept those which are found to stand the test of
scrutiny and to reject the rest."

D In Sakal v. Union of India, [1962] 3 SCR 842 at 866, Mudholkar,
J. said:

"This Court must be ever vigilent in guarding perhaps
the most precious of all the freedoms guaranteed by our
.J-
Constitution. The reason for this is obvious. The freedom
E of speech and expression of opinion is of paramount
importance under a democratic Constitution which en-
visages changes in the composition of legislatures and gov-
ernments and must be preserved."

Movie is the legitimate and the most important medium in which
issues of general concern can be treated. The producer may project
)'-
F
his own messages which the others may not approve of. But he has a
right to "think out" and put the counter appeals to reason. It is a part
of a democratic give-and-take to which no one could complain. The
"
State cannot prevent open discussion and open expression, however,
hateful to its policies. As Professor Fraund puts it: "The State may not
G punish open talk, however, hateful, not for hypocritical reason that
Hyde Parks are a safety-valve, but because a bit of sense may be f
solvaged from the odious by minds striving to be rational, and this
precious bit will enter into the amalgam which we forge." (Paul A.
Freund-On Understanding the Supreme Court 26 (1950).

H "When men differ in opinion, both sides ought equally to have
S. RANGARAJAN v. P.J. RAM [SHETIT, J.] 225
.Ir- the advantage of being heard by the public." (Benjamin Franklin). If
oµe is allowed to say that policy of the government is good, another is A
with equal freedom entitled to say that it is bad. If one is allowed to
support the governmental scheme, the other could as well say, that he
will not support it. The different views are allowed to be expressed by
proponents and opponents not because they are correct, or valid but
because there is freedom in this country for expressing even differing B

... views on any issue .

Alexander Meiklejohn perhaps the foremost American philo-

- sopher of freedom of expression, in his wise little study neatly explains:

"When men govern themselves, it is they-and no
one else-who must pass judgment upon unwisdom and c
unfairness and danger. And that means that unwise ideas
must have a hearing as well as wise ones, unfair as well as
fair, dangerous as well as safe, un American as well ......
American ..... If then, on any occasion in the United
States it is allowable, in that situation, to say that the Con- D
stitution is a good document it is equally allowable, in that
situation, to say that the Constitution is a bad document. If
a public building may be used in which to say, in time of
war, that the war is justified, then the same building may
be used in which to say that it is not justified. If it be
publicly'iirgued that conscription for armed service is moral
..
E
and necessary, it may likewise be publicly argued that it is
immoral and unnecessary. If it may be said that American
political institutions are superior to those of England or
Russia or German, it may with equal freedom, be said that
--\ those of England or Russia or Germany are superiors to
' ours. These conflicting views may be expressed, must be F
k expressed, not because they are valid, but because they ate
relevant ..... To be afraid of ideas, any id.ea, is to be unfit
for self government." (Political Freedom (1960) at 27). He
argued, if we may say so correctly, that the guarantees of
freedom of speech and of the press are measures adopted
by the people as the ultimate rulers in order to retain con- G
trol over the Government, the people's legislative and ex-
ecutive agents.

Brandies, J., in Whitney v. California, 274 US 357, 375-8 (1927)
propounded probably the most attractive free speech theory:
H
226 SUPREME COURT REPORTS [1989] 2 S.C.R.

" . . . . . that the greatest menace to freedom is an -1-
A inert people; that public discussion is a political duty; .....
It is hazardous to discourage thought, hope and imagina-
tion; that the path of safety lies in the opportunity to dis-
cuss freely supposed grievances and proposed remedies;
and that the fitting remedy for evil counsels is good ones."
B
What Archibald Cox said in his article though on "First Amend- I
ment" is equally relevant here: r4.
"Some propositions seem true or false beyond
rational debate. Some false and harmful, political and
religious doctrine gain wide public acceptance. Adolf
c Hitler's brutal theory of a 'master race' is sufficient
example. We tolerate such foolish and sometimes dan- ~
gerous appeals not because they may prove true but
because freedom of speech is indivisible. The liberty cannot
be denied to some ideas and saved for others. The reason is
D plain enough: no man, no committee, and surely no
government, has the infinite wisdom and disinterestedness
accurately and unselfishly to separate what is true from
what is debatable, and both from what is false. To license
one to impose his truth upon dessenters is to give the same +
licence to all others who have, but fear to lose, power. The
E judgment that the risks of suppression are greater than the
harm done by bad ideas rests upon faith in the ultimate
good sense and decency of free people." (Society Vol. 24 ...
p. 8 No. 1 November/December 1986).

The problem of defining the area of freedom of expression when
F it appears to conflict with the various social interests enumerated !
under Article 19(2) may briefly be touched upon here. There does ':f·
indeed have to be a compromise between the interest of freedom of
expression and social interests. But we cannot simply balance the two
interests as if they are of equal weight. Our commitment to freedom of
expression demands that it cannot be suppressed unless the situations
G created by allowing the freedom are pressing and the 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 equiva-
H lent of a "spark in a powder keg".
S. RANGARAJAN v. P.J. RAM [SHE1TY, J.J 227

Our remarkable faith in the freedom of speech and expression A
could be seen even from decisions earlier to our Constitution. In
Kamal Krishna v. Emperor, AIR 1935 Cal 636, the Calcutta High
Court considered the effects of a speech advocating a change of
Government. There the accused was con[Victed under sec. 124(A) of
Penal Code for making a speech recommending 'Bolshevik' form of
Government to replace the then existing form of Government in B
Calcutta. While setting aside the conviction and acquitting the
accused, Lord Williams, J., who delivered the judgment observed (at
637):

"All that the speakers did was to encourage the
youngmen, whom he was addressing, to join the Bengal C
Youth League and to carry on a propaganda for the
purpose of inducing as large a number of people in India as
possible to become supporters of the idea of communism as
represented by the present Bolshevik system in Russia. It is
really absurb to say that speeches of this kind amount to
sedition. If such were the case, then every argument D
against the present form of Government and in favour of
some other form of Government might be allowed to lead
to hatred of the Government, and it migbt be suggested
that such ideas brought the Government into contempt. To
suggest some other form of Government is not necessarily
to bring the present Government into hatred or contempt." "

- To the same effect is the observation by the Bombay Higb Court
in Manohar v. Government of Bombay, AIR 1950 BOM 210. There
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 F
China by rising against Anglo-American Imperialism and their agents.
He had also suggested 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 convic-
tion said (at 213):
G
"It is true that the article does state that the working
class and the coiling masses ca11 get hold of power through
the path of revolution aione. But the expression 'revolu-
tion' is used here, as is clear from the context, in con-
tradistinction to reformism or gradual evolution. The
revolution preached is not necessl!rily a violent revolution. H
228 SUPREME COURT REPORTS [19891 2 S.C.R.

xxx xxx xxx xxx
A
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."
B
In Niharendu Dutt Majumdar v. Emperor, AIR 1942 FC 22, the
Federal Court examined the effects of a Wlgar and abusive outburst
against the Government made by the accused for which he was con-
victed under Rule 34 of the Defence of India Rules. Owyer, C.J.,
while acquitting the person commented more boldly (at 27):
c
"There is an English saying that hard words break no
bones; and the wisdom of the common law has long refused
to regard an actionable any words which, though strictly
and liberally defamatory, would be regarded by all reason-
D able men as no more than mere vulgar abuse.

xxx xxx xxx xxx

The speech now before us is full of them. But we cannot
regard the speech, taken as a whole as inciting those who
E heard it, even though they cried "shame shame" at inter-
vals, to attempt by violence or by public disorder to subvert
the Government for the time being established by law in
Bengal or elsewhere in India. That the appellant expressed
his opinion about that system of Government is true, but he
was entitled to do so,; and his reference to it were, we
F might almost say, both common place and in common
form, and unlikely to cause any Government in India a
moments uneasyness. His more violent outburst were
directed against the then Ministry in Bengal and against the
Governor in Bengal in his political capacity but we do not
feel able to say that his speech whatever may be thought of
G the form in which it was expressed, exceeded the legal
limits of comment or criticism."

Even the European Court's approach in protecting the freedom
of expression is not diffferent although they have the extensive list of
circumstances for limiting the freedom. Article 10 of the European
H Convention of Human Rights and Fundamental Freedom provides:
S. RANGARAJAN v. P.J. RAM [SHETfY, J.] 229

"(1) Every one has the right to freedom of expression.
A
(2) The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such for-
malities, conditions, restrictions or penalties as are pres-
cribed by law and are necessary in a democratic society in
the interests of national security, territorial integrity or B
public safety, for the prevention of health or morals, for
the protection of the reputation or rights of others, for
preventing the desclosure of information received in con-
fidence, or for maintaining the authority and impartiality of
the judiciary."

i,.._ It appears that the second paragraph of Article 10 virtually removes
c
; the right purportedly guaranteed by the first paragraph. However, the
European Court in Handyside v. United Kingdom, [1976] EHRR/737
observed at 754;

"The court's supervisory functions oblige it to pay the D
utmost attention to the principles characterising a 'demo-
cratic society'. Freedom of expression constitutes one of
the essential foundations of such a society, one of the basic
conditions for its progress and for the development of ev-
+ ery man. Subject to Article 10(2), it is applicable not only
to 'information' or 'ideas' that are favourably received or E
regarded as inoffensive or as a matter of indifference, but
also to those that offend shock or disturb the State or any
sector of the population. Such are the demands of that
pluralism, tolerance and broadmindedness without which
there is no 'democratic society'. This means, amongst other
things, that every 'formality', 'condition', 'restriction' or F
'penalty' imposed in this sphere must be proportionate to
the legitimate aim pursued."

This takes us to the validity of the plea put forward by the Tamil
N adu Government. In the affidavit filed on behalf of the State
Government, it is alleged that some organisations like the Tamil Nadu G
Scheduled Castes/Scheduled Tribes People's Protection Committee,
Dr. Ambedkar People's Movement, the Republican Party of India
have been agitating that the film should be banned as it hurt the
sentiments of people belonging to Scheduled Caste/Scheduled Tribes.
It is stated that the General Secretary of the Republican Party of India
has warned that his party would not hesitate to damage the cinema H
230 SUPREME • 'OURT REPORTS [1989] 2 S.C.R.

theatres which screen the film. Some demonstration made by people in
front of "The Hindu" office on March 16, 1988 and their arrest and
release on bail are also referred to. It is further alleged that there were
some group meetings by Republican .Party members and Dr.
Ambedkar People's Movement with their demand for banning the
film. With these averrnents it was contended for the State that the

-~
B exhibition of the film will create very serious law and order problem in
the State.

We are amused yet troubled by the stand taken by the State
Government with regard to the film which has received the National
Award. We want to put the anguished question, what good is the
protection of freedom of expression if the State does not take care to
c protect it? If the film is unobjectionable and cannot constitutionally be
restricted under Article 19(2), freedom of expression cannot be
suppressed on account of threat cf demonstration and processions or
threats of violence. That would tentamount to negation of the rule of
law and a surrender to black mail and intimidation. It is the duty of the
D State to protect the freedom of expression since it is a liberty
guaranteed against the State. The State cannot plead its inability to
handle the hostile audience problem. It is its obligatory duty to pre-
vent it and protect the freedom of expression.

In this case, two Revesing Committees have approved the film.
E The members thereof 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
gui3elines provided for the purpose. We do not think that there is
anything wrong or contrary to the Constitution in approving the film
for public exhibition. The producer or as a matter of fact any other
F person has a right to draw attention of the Goverrunent and people
that the existing method of reservation in education institutions over-
looks merits. He has a right to state that reservation could be made on
the basis of economic backwardness to the benefit of all sections of
community. Whether this view is right or wrong is another matter
altogether and at any rate we are not concerned with its correctness or
G usefulness to the people. We are only concerned whether such a view
could be advocated in a film. To say that one should not be permitted
to advocate that view goes against the first principle of our democracy.

We end here as we began on this topic. Freedom of expression
which is legitimate and constitutionally protected, cannot be held to
H ransom, by an intolerant group of people. The fundamental freedom
S. RANGARAJAN v. P.J. RAM [SHETIY, J.[ 231

under Article ·19(1)(a) can be reasonably restricted only for the A
purposes mentioned in Articles 19(2) and the restriction must be
justified on the anvil of necessity and not the quicks and of con-
venience or expediency. Open criticism of Government policies and
operations is not a ground for restricting expression. We must practice
tolerance to the views of others. Intolerance is as much dangerous to B
democracy as to the person himself.

In the result, we allow these appeals, reverse the judgment of the
High Court and dismiss the writ petitions of the respondents. In the
circumstances of the case, however, we make no order as to costs.

Y.L. Appeals allowed. C