|Citation||1993 AIR 171, 1992 SCR(3) 595|
|Year||22nd July 1992|
|Appellant||Life Insurance Corporation Limited & Others|
|Respondent||Professor Manubhai D. Shah & Cinemart Foundation|
|Bench||Justice A.M Ahmadi|
Justice M.M Punchhi
|Acts||1. Constitution of India|
2. Life Insurance Corporation Act
3. Cinematograph Act 1952
|Sections/Articles||1. Article 14, 21, 19(1), 25 & 226 of the Constitution of India|
2. Section 6(1) of the Life Insurance Act 1956
3. Section 5(b) of the Cinematograph Act 1952
Speech is God’s gift to mankind, through which human beings can convey their thoughts, feelings, and sentiments to others. Human beings acquire Freedom of Speech and Expression as their natural right i.e. birthright. Imagine living in a world where the right to express yourself or speak your opinion is suppressed, Freedom of speech and expression is an essence of democracy and no democracy can sustain without it. To express or speak oneself freely is a basic human right and the founding pillar of any democratic country. As per the Universal Declaration of Human Rights, 1948, The right to freedom of speech and expression includes “ freedom to hold opinions without interference and freedom to seek, receive and impart information and idea through any media, regardless of any frontiers or boundaries”.
The Preamble of our Constitution itself speaks about the “ Securing to all citizens liberty of thoughts and expressions” and Art, 19(1)(a) reflects this resolve, which is one of the articles found in Part III of the Constitution that enumerates the Fundamental Rights. The world is dynamic, so does this society. Nothing can be static as there can be no evolvement and development in the staticity. Constitutional provisions have never been static, it is an ever-evolving and ever-changing law according to the need of the society; thus it cannot be strangled or chained by any narrow, pedantic, or syllogistic approach.
Adopting this change the first law of freedom of speech or press was bought by America by its First Amendment Act, 1791. It was the broad approach adopted by the court that enabled them to chart out the contours of ever-expanding notions of “ Press Freedom”. The same was adopted by the Indian Constitution and Indian Courts, as a result, a separate Part was enshrined in the Indian Constitution as “Fundamental Right”, as they represent the basic values of the People of India, cherished by them while giving themselves the Constitution for free India. It was enshrined with an objective the “ Honour, Dignity and Self-respect” of the Indian citizens will always be protected in free India. These fundamental rights were intended to serve generation after generation.
The framers of the Indian Constitution were well aware of the socio-economic transformation in future India, just leaving the scope and space for the further interpretation of these rights according to the needs of the changing society, but without changing its basic structure. The word “ freedom of speech and expression” includes the freedom to circulate one’s view either by words or writing or through audio-visual representation; thus it includes the right to propagate one’s view through print media or any other communication channel, for example, Radio or Television.
It is pertinent to note that every citizen of this country has the right to air his/ her views through print media or electronic media but subject to reasonable restrictions imposed under Art. 19(2) of the Constitution. In today’s evolving age the print media, electronic media, social media are so vital for the growth of healthy democracy. Freedom to air one’s view or propagate one’s opinion is the life-line of any democratic country and any attempt to stifle, suffocate or gag this right would be considered as a death-knell to the democracy and it will render it to autocracy or dictatorship.
The two appeals in the case though arising out of different circumstances and concerning to different parties, are related to the “scope of constitutional liberty of freedom of speech and expression guaranteed by Article 19(1)(a) forming part of our Constitutional policy”.
On 10th July 1978 respondent published a study paper, a document containing statistical information that underlines out the unduly high premiums charged by the LIC from those taking out life insurance policies thereby denying the access of this insurance coverage to a vast majority of people who cannot afford to pay such high premiums. Few copies of this study paper were circulated to a few informed citizens with a request to disseminate the contents and the core idea of the paper through articles, speeches, etc.
On 6th November 1978, Mr N.C Krishnan wrote a counter article to this previous study paper titled “ LIC and its policyholders” and published it on the Hindu. As an answer to it, a rejoinder titled “Raw deal for Policy Holders” was prepared by the respondent, which was too published on the Hindu on 4th December 1978. The LIC printed and published the counter article by Mr Krishnan in its magazine. The respondent on learning about the same requested the LIC to publish his rejoinder on their magazine which was already published on the Hindu as a matter of fairness and equality. The LIC refused to accede to his request and hence the denial resulted in this litigation.
In the following case the respondent, the executive trustee of the Consumer Education & Research Centre (CERC), Ahmedabad after researching on the working of Life Insurance Corporation (LIC) published the paper about the same as titled “A fraud on policyholders – A Shocking Story” on 10th July 1978. The paper portrayed how the policy adopted by LIC is discriminatory and adversely affecting the interests of a large number of policyholders; thus widely circulated by the respondent.
To answer this paper and the respondent, another counter-part article was published on “ The Hindu” newspaper by Mr N.C Krishnan, a member of LIC. After that, the respondent prepared a rejoinder that was published in the same newspaper. A magazine named “ Yogakshema” was published by LIC so to inform its members, staff, and agents about its activities; moreover, LIC contented that this magazine was an “ in-house magazine”, hence it cannot be put in the market for sale to the general public.
The magazine even published the counter article by Mr Krishnan, a reply to the respondent’s study paper. Thereupon the respondent requested the LIC to publish his rejoinder article too in its magazine but this request was spurned. The respondent then met the chairman of LIC and requested him to revise his decision and publish his rejoinder article in the magazine but it all ended in vain. As a result, the respondent filed the petition contending that “ refusal to publish his rejoinder article in the magazine” is violative of his fundamental rights guaranteed under Art. 14 and Art. 19(1) (a) of the Constitution.
Whether the respondent could insist on the LIC to print his joinder in their magazine as the matter of their right?
1. Article 19(1)(a)
Art. 19(1) – states that all the citizens shall have the right-To freedom of speech and expressions.
2. Article 19(2)
provides for the “reasonable restrictions” on Art. 19(1)(a) on the following grounds:
Sovereignty and Integrity of India;
Security of the State;
To maintain Friendly Relations with foreign states;
Decency or Morality;
Contempt of the court;
Provides that the State shall not deny to any person equality before the law or equal protection of law within the territory of India.
Life Insurance Corporation Act, 1956
- Section 6(1) –states that LIC is charged with the duty to exercise its power under the Act to “secure that life insurance business is developed to the best advantage of the community”.
Romesh Tappar v. The State of Madras, in this case, the court held that the freedom of speech and expression also includes freedom to propagate the ideas and this freedom is ensured by the freedom of circulation. The court further held that this freedom of speech and expression is the foundation of any democratic organization and essential for the proper functioning of democracy.
Similarly in the case Sakal Papers (P) Ltd. v. Union of India, the court held that freedom of speech and expression guaranteed under Art. 19(1)(a) includes freedom of the Press.
In the case Indian Express Newspapers (Bombay) Pvt. Ltd and Ors. V. Union of India, the court held that in today’s world freedom of Press is the heart of any social and political intercourse because today press is playing the role of public educator. Tight to these rights include the right to be informed, the right to inform, the right to the privacy, right to communicate, etc.
It is to be noted that, neither the government nor any instrumentality of the Government or any public sector run by the public funds can shy away from the articles which expense or tend to expose its weakness in functioning or acts as an obstacle in percolating the information to the members of the community.
In the case Odyssey Communication Pvt. Ltd v. LokvidayanSanghatana and Ors, public interest litigation was filed under Art. 226 of the Constitution, t0 restrain the authorities from telecasting the serial titled “HoniAnhony” on the ground that it is likely to spread false and blind beliefs and superstitions among the members of the public. The High Court by interim injunction restrained the telecast of the series but the Supreme Court held that the fundamental right of freedom of speech and expression can only be curtailed by the restrictions imposed under Art. 19(2) and right to exhibit the film os similar to the right of any citizen to publish his views through any media such as newspapers, magazines, etc. hence the court overruled the judgment of the High Court.
The court rejected the LIC’s contention that the magazine is an “ in-house magazine” for two reasons; firstly, it was available to anyone on payment of subscription, and secondly, it invites the articles for the publication from the members of the public.
The High Court held its opinion that the mere factor that magazine is circulated among the officers, employees, and agents of LIC does not make LIC acquire a status of an in-house magazine because it can be purchased by any member of public and invites the article for publication from the members of public.
The court further held that even if the court accepts the LIC contention of being an “ in-house magazine” yet under its disguise it cannot violate the fundamental rights of the respondent.
The LIC is a “ State” under the purview of Article 12 of the Indian Constitution, there its in-house magazine is published with an aid of public funds and public money, hence in the interest of the democracy and to uphold the essence of the free society the magazine must be available to both the admirers as well as critics, for the proper dissemination of information. Hence, the court concluded that the LIC has violated the fundamental rights of the respondent guaranteed under Art. 19(1)(a) – by refusing to publish his rejoinder to Mr. Krishnan’s counter to the study paper of the respondent and LIC also violated his rights under Art. 14 of the Constitution because the refusal to publish his article was arbitrary.
Hence, the High Court ordered the LIC to publish the respondent’s rejoinder to Mr. Krishnan’s with an immediate effect on his next issue of Yogakshema.
This view of the Gujarat High Court is assailed by the LIC in the first appeal.
It was contented by the court that it is no matter of the dispute that LIC is “ State “ within the definition of the State covered under Art. 12 of the Constitution, as held in the case Sukhdev Singh and Ors v. Bhagatram Sardar Singh, because LIC is created under an Act, namely Life Insurance Corporation Act, 1956 and by this act it is charged with the duty to “ carry on the Life Insurance business on both within the territory as well as outside the territory of India”.
It is entrusted with a duty to act and function in the best interest of the community by the virtue of Section 6(1) of the Life Insurance Corporation Act. Thus, the community is empowered as well as entitled to know whether the LIC is acting in its best interest or not and the respondent’s effort in preparing this study paper was to bring to the notice of the community that LIC has strayed from its path by charging unduly high premium charge which could be low if the LIC avoided its wasteful indulgences. The primary objective of the paper was to enlighten the community about the drawbacks and shortcomings of the corporations and pinpoint the areas where the improvement was needed and was possible.
The refusal of the respondent’s request for publishing his rejoinder by the LIC on their magazine was both “ UNFAIR AND UNREASONABLE”; unfair because fairness demanded that both the viewpoints should be placed before the readers, so to enable them to draw their conclusion. On the other hand, it was unreasonable because there was no logic or proper justification for such refusal. The court held that a monopolistic instrument of the State that survives on public funds cannot act arbitrarily on the specious plea that the magazine is an in-house and the Corporation holds the exclusive right and privilege to accept or refuse to print the rejoinder by the respondent. Thus, LIC is obligated to respect the respondent’s fundamental right to express his views to the public.
Thus the apex court rejected the appeal and upheld the decision given by the High Court and by doing so the Supreme court concluded that LIC is not bound merely because it is State but looking into the particular facts of the case the court rejected the contentions raised by the learned Counsel for the LIC, that the rejoinder by the respondent to the article of Mr Krishnan published on December 1978 has become stale with the passage of the time and has lost its relevance. The court upheld that issue raised by the respondent regarding high premium prices charged by LIC is still alive and the situation has been not improved from what it was in 1978. Thus the article still holds relevance and the LIC is obligated to print it on its magazine.
There was also another appeal whose facts reveal that a documentary film titled “Beyond Genocide” based on the Bhopal Gas tragedy was produced by Shri Tapari Bose, Managing Director of respondent’s trust; the film was awarded the Golden Lotus, being the best non-feature film of 1987. Regarding that appeal, the respondent contended that the film was declared to be telecasted on Doordarshan, by the Central Minister for Information & Broadcasting at the time of presenting an award to the film but when the respondent submitted this award-winning short film to Doordarshan, it was refused by them to telecast on the ground that: the contents of the film are too outdated; holding no relevance to be telecasted now.
After, that a writ petition was filed by the respondent, challenging such refusal on the ground of violation of his fundamental rights under Art. 19(1)(a) of the Constitution and for “MANDAMUS” to telecast the film.
To counter the writ petition it was contended that the decision by the Central Minister was to arrange fixed fortnightly telecast of award-winning documentaries, but there was no such decision made to telecast all national award-winning documentaries. It is pertinent to emphasize that the parameters applied for selection for any film for the national award were not the same as applied by the Film Selection Committee of Doordarshan who are given a job to select the film to telecast. The Selection Committee is entitled with duty and job to telecast the film which was socially relevant, fair, and balanced; but the respondents failed to meet these requirements thus it was not telecasted on Doordarshan.
The respondent’s film failed to satisfy the norms for the reason that it lacked moderation and restraint in judging things and expressing opinions, thus it was unsuitable for the telecast. Moreover, it was also feared that the film would vitiate the atmosphere and serve no social purpose.
- Whether the filmmaker has a fundamental right to have his film telecast on Doordarshan.
- If yes, whether Doordarshan has successfully shown that it was entitled to refuse the telecast, as it breached its guidelines.
Cinematograph Act, 1952
- Section 5A- provides for certification of films, the Censor board certifies the film with a “ U” certificate in the case when it considers that the film is suitable for unrestricted public exhibition and “ A” certificate when the exhibition is restricted only to adults.
- Section 5B – provides for the principles for guidance in the matter of the certification of films.
It provides that the film shall not be certified for the public exhibition if in the opinion of the competent authority it is against the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.
The function of any Board of Film Censor is to censor the film, which immediately conflicts with the freedom guaranteed under Art. 19(1)(a) and thus such censorship must be justified with the “reasonable restrictions” under Art. 19(2) of the Constitution.
A similar question came up before the court in the case of K.A. Abbas v. The Union of India, a documentary titled “ A tale of four cities” made by K.A Abbas was granted “A” Certificated by the Censor Board and was rejected “ U” Certificated on the ground that the film dealt with relations between sexes, depicted immoral trafficking of women and contained incidents unsuitable for young persons.
This decision by the board was challenged by Abbas because:
- Pre-censorship was the film cannot be tolerated as its violative of freedom of speech and expression; and
- Even if it is considered legitimate, it must be exercise on well-defined principles leaving no room for arbitrary decisions.
Justice, Hidayatullah held that censorship in India has full justification in the field of film exhibition because it was in the interest of the society and if the legitimate power is abused it can be stuck down.
In the case of Ramesh v. The Union of India, a petition was filed to restrain the screening of the serial “Tamas” on the ground being violative of Art. 21 and 25 of the Constitution and Section 5B of Cinematograph Act, 1952. The court rejected the contention that the serial propagates the cult of violence and it was held by the Supreme Court that:
The motion picture is a powerful instrument with a much stronger impact on the visual and aural sense of the spectators than any other medium of communication. It is true that at present, television can reach the vast majority of the public even to remote corners of the country.
As every coin has two faces, so as the motion picture to has good as well as evil side and if some scenes are violent or capable to stir up certain feelings in the spectators then they have to be equally outlooked with the one having deep strong, lasting and beneficial impression showing love, kindness, comradeship and decreasing the bridge of religion.
The court upled the decision of the Bombay High Court and held that the film is not violent or capable of brainwashing the majority it is capable of creating a lasting impression of peace and there is no fear of people being overwhelmed or carried away by the scenes of violence or fanaticism shown in the film.
The High Court observed and concluded that the guidelines or norms on which the film was refused by the Selection Committee of Doordarshan were executives in character and not law within the meaning of Art. 19(2) of the Constitution that imposes restrictions on fundamental rights thus the Doordarshan is obligated under Art. 19(1)(a) of the Constitution to telecast the respondent’s film. No restriction can be imposed on the fundamental rights on those contentions by the Doordarshan because these norms were for internal guidance and cannot interfere with the fundamental rights guaranteed under Art. 19(1)(a) of the Constitution.
Regarding the second appeal, the Supreme court held that as the judgment of the High Court reveals that the film was refused to be telecasted on the Doordarshanbecause “ the contents of the film are outdated and do not hold any social relevance.”
It was emphasized by the High court the mere fact that the film won a national award is not “ipso facto” to telecast it as the parameters applied for the selection of the film was different from those applied by the Film Sleceting Committee of Doordarshan when it comes to select the film for the telecast.
The Supreme court held that the telecast of the film was not refused on the grounds as contented that the list of the award-winning films so it was long that it was not possible to telecast each award-winning film rather the ground for refusal that can be culled out from the pleading is the film is outdated; lost its relevance; lacks moderations; political parties raising various issues concerning the tragedy, or the claims for compensation by victims of the tragedy is sub-judice.
Taking the reference of the above-metioned cases, the court held that the movie although enjoys the freedom under Art. 19(1)(a) but it must be remembered that they have the potential to reach the masses and the most powerful model of communication at present. Thus “Censorship is permitted to protect the social interests enumerated under Art. 19(2) of the Constitution and Section 58 of the Censorship Act, 1952”.
But such censorship must be reasonable and fulfil the test laid down under Art. 14 of the Constitution. Thus, in the following case, the respondent has the right to convey his perception of the Bhopal Gas Tragedy by the means of a documentary film produced by him because not only the short film won the national award but also received “U” certificate from the Censor Board.
The whole case revolves around the concept that the freedom of expression is legitimate and constitutionally protected and it cannot be held ransom by an intolerant group of people. This fundamental freedom guaranteed under Art. 19(1)(a) can only reasonably restricted on the grounds given under Art. 19(2 ) and this restriction must be justified on the anvil of necessity and not on the convenience or expediency.
We as a citizen have to understand that criticizing the government does not mean criticizing the nation because the government is not a nation the government is because of the nation; thus open criticism of government policies and operations is not a ground for the restriction of the freedom of speech and expressions. We must possess and practise tolerance to the views of the others, as intolerance is as dangerous to democracy as to the person himself. The second appeal upholds the view and revolves around the concept of “Pre-censorship” of the film and states that in today’s time movies or films are the most powerful mode of communication, having the capacity to make a profound impact on the minds of the viewers. Therefore, it is essential to ensure that the message it conveys it no harm to the society nor even to the section of society.
Hence, the censorship by prior restraint will be rendered justifies for the protection of the society from the ill-effects that the motion pictures are capable to produce if the unrestricted exhibition is allowed.
 SCR 495
AIR 1988 SC 1642