Karnataka High Court
K.M. Shankarappa vs Union Of India on 2 April, 1990
Equivalent citations: ILR1990KAR4082
ORDER K.A. Swami, J.
1. In this petition under Article 226 of the Constitution, the petitioner has sought for a declaration that the Cinematograph Act 1952 as amended by Act No. 49 of 1981 and the Cinematograph (Censorship) Rules, 1958 (hereinafter referred to as the 'Act' and the 'Rules') are void and unenforceable. He has also sought for a direction restraining the respondent from enforcing the provisions of the Act and the Rules against the petitioner.
2. Though in the petition the contentions are raised in a general manner relating to several provisions of the Act and the Rules, but during the course of argument, learned Counsel appearing for the petitioner confined the case to the following contentions:
That the Parliament was not competent to pass the Act; that Sections 3, 4 and 5D of the Act do not contain the guidelines, in as much as, no qualifications are prescribed for the members of the Board and the Appellate Tribunal, that Section 7 of the Act in so far it imposes the penalty is also unconstitutional as it suffers from the vice of Article 14 of the Constitution. Lastly it is contended that Section 6 of the Act in so far it empowers the Central Government to exercise the power of revision against the order passed by the Tribunal is bad in law inasmuch as it subjects the judicial authority and its decision to the executive.
3. On the contrary, it is contended by the learned Central Government Standing Counsel appearing for the respondent that the power of revision conferred on the Central Government is not a general power of revision and it is not intended to control or exercise control over the decision or performance of the functions and discharge of the duties by the Appellate Tribunal.
4. In the light of the contentions urged on both sides, the following points arise for consideration:
1. Whether the Act as amended by Act No. 49/1981 is beyond the Legislative Competence of the Parliament?
2. Whether the provisions contained in Sections 3(1), 4(1) and 5D of the Act are unconstitutional?
3. Whether Section 7(1) of the Act in so far it imposes the punishment is violative of Article 14 of the Constitution?
4. Whether the power of revision conferred on the Central Government under Section 6(1) of the Act is unconstitutional?
5. Before we take up the points for consideration we will first consider the preliminary objection raised by the learned Standing Counsel for the Central Government that the petitioner cannot at all be considered to be an aggrieved person and he is not affected in any manner; therefore, he is not entitled to challenge the validity of the provisions of the Act it is relevant to notice that the Act relates to certification of cinematograph films and regulation of exhibition by means of cinematographs. As such it involves freedom of speech and expression. The Constitutionality of any law made by the Parliament or the State Legislature affecting the freedom of speech and expression can be challenged by a citizen of India. In the instant case the petitioner is a citizen of India. He is neither a stranger to the subject matter of the Act nor it can be said that he has no interest whatsoever in the production and exhibition of film. In paras 1 and 2 of the petition, the petitioner has stated thus:
"1. The petitioner is a Director of Films. He got his training from the film and television Institute of India, Poona in screen-play writing and at Film Direction. He has directed his diploma film by title "Water in the Tap" which has the unique distinction of having been sent by the Central Government as a participating entry to various international film festivals. It has been acclaimed as a Work of art in the "New Cinema" of India by the film critics of India and from-abroad. The petitioner has also directed a full length feature film in Kannada by title "Madi Madidavaru" which was adjudged as the second best film of the year of its production. He received a gold medal for directing the said movie from the Government of Karnataka, Besides this, he has produced. and directed many documentary films and compiled news reels for the Government of Karnataka.
2. The petitioner is also imparting instructions to the students of the faculty of Mass communication at Bangalore University. He is the President of "Chalana Film Society" Bangalore a progressive film group organised to promote the art of film. The petitioner is a creative artist using the medium of celluloid to express his experience from his environment and incidentally make an effort to realise and project the truth. Besides all these, the petitioner being a citizen of India, has the fundamental right to hear and see works of art and forms of expression. The Constitutional guarantee of freedom of speech and expression embraces, not only proliferation and publication of ideas but also necessarily protects the rights to receive ideas without which freedom of thought can have no progress."
The averments made in paras 1 and 2 of the petition are not disputed by the respondent. Thus the petitioner has sufficient interest in the subject matter of the Act, inasmuch as he is actively involved in the production and direction of films. Therefore, and also having regard to statement of law made by the Supreme Court as to the theory of locus standi in Judges' case (S.P. GUPTHA V.M. TARKANDE AND ORS. v. PRESIDENT OF INDIA AND ORS., ) it has to be held that the petitioner has locus standi to maintain the petition. Hence the preliminary objection as to locus standi is over-ruled.
POINT N0.1
6. It is contended that the subject matter of the Act falls under Entry No. 33 of List II of the VII Schedule, The said Entry reads thus:
"Theatres and dramatic performances; cinemas subject to the provisions of entry 60 of List I, Sports; entertainments and amusements."
Whereas, Entry No. 60 of List-I of VII Schedule reads thus:
"Sanctioning of cinematograph films for exhibition."
Entry No. 33 of List II of VII Schedule is subjected to Entry No. 60 of List-I of VII Schedule in so far it relates to cinemas. Entry No. 60 relates to sanctioning of cinematograph films for exhibition. The subject matter of the Act is certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs. Therefore, it is not possible to hold that the Act in question is beyond the legislative competence of the Parliament. Hence Point No. 1 is answered against the petitioner.
POINT NOS. 2 and 37. Sub-section (1) of Section 3 of the Act provides for constitution of the Board of Film Certification by the Central Government for sanctioning films for public exhibition. It reads thus:
"For the purpose of sanctioning films for public exhibition, the Central Government may, by notification in the Official Gazette constitute a Board to be called the Board of Film Certification which shall consist of a Chairman and not less than twelve and not more than twenty-five other members appointed by the Central Government."
The contention is that no guide-lines and no qualifications for the members of the Board are contained in the Section or the Rules for constituting the Board; therefore, the Section confers unguided powers on the Central Government; hence it is opposed to Article 14 of the Constitution and it also suffers from the vice of excessive delegation.
8. It is relevant to notice that the power is not conferred on any ordinary authority. The power is conferred on the Central Government. The power under Section 3(1) of the Act has to be exercised having regard to the objects of the Act and the duties and functions of the Board. Therefore, necessarily, the Central Government, while making appointments must have due regard to the functions to be performed and duties to be discharged by the Board of Film Certification (hereinafter referred to as the 'Board') and appoint such persons who are experienced and well-versed in the field and are capable of performing the functions and discharging the duties of the Board. The guidelines for the purpose of making appointments to the Board are contained in the duties to be discharged and the functions to be performed by the members of the Board and also the objects which the Act Is intended to serve. Section 4 of the Act provides for examination of the film for sanctioning the same for public exhibition with or without restriction or refusing sanction for public exhibition or to restrict the public exhibition or to restrict the public exhibition to adults only. After the film is examined as per Section 4 of the Act, Section 5A of the Act conies into play and it provides for the mode and manner and the type of certification. Section 5B of the Act contains the principles for guidance in certifying films. Section 5 of the Act also provides for establishment of regional centres and formation of Advisory Panels at each regional centres consisting of persons qualified to Judge the effect of films on the public to assist the Board to efficiently discharge its functions under the Act. The aforesaid provisions read in the light of the objects of the Act already referred to demonstrate that there are sufficient guidelines contained in the Act to enable the Central Government to make appointments of the Chairman and members of the Board. Hence we are of the view that the contention that there are no guidelines and the Central Government is likely to exercise the power arbitrarily are not well-founded. Therefore, on this ground, it is not possible to hold that Sub-section (1) of Section 3 of the Act either suffers from the vice of conferment of unguided and uncanny powers or from the vice of excessive delegation,
9. Section 4 of the Act provides:
"4. (1) Any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for a certificate in respect thereof, and the Board may, after examining or having the film examined in the prescribed manner -
i) sanction the film for unrestricted public exhibition:
Provided that having regard to any material in the film, if the Board is of the opinion that it is necessary to caution that the question as to whether any child below the age of twelve years may be allowed to see such a film should be considered by the parents or guardian of such child, the Board may sanction the film for unrestricted public exhibition with an endorsement to that effect; or
ii) Sanction the film for public exhibition restricted to adults; or
iii) Sanction the film for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film; or
iv) direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition under any of the foregoing clauses; or
v) refuse to sanction the film for public exhibition.
2) No action under the proviso to Clause (i), Clause (ii), Clause (iia), Clause (iii) or Clause (iv) of Sub-section (1) shall be taken by the Board except after giving an opportunity to the applicant for representing his views in the matter.
The contention is that this Section does not cover the programmes of Door Darshan, therefore, it amounts to discrimination. It is submitted that the programmes of Door Darshan are nothing but telecast of the films therefore, the exclusion of Door Darshan amounts to discrimination. It is not possible to accept this contention. The word 'film' means a cinematograph film as defined under Clause (dd) of Section 2 of the Act. The Act provides for the certification of cinematograph films for exhibition and also for regulating exhibitions by means of cinematograph. The expression 'Cinematograph' is also defined to include any apparatus for the representation of moving pictures or series of pictures. The serials and the films and advertisements which are telecast by the Doordarshan come under the cinematograph film and they are to be certified before they are permitted to be exhibited or telecast; but that is not the same thing to say that even the other programmes which are telecast by Doordarshan are also the films within the meaning of the Act. It is not possible to hold that the other programmes which are telecast and which are known as 'live telecast' by Doordarshan can be termed as film as defined under the Act. Therefore, the contention that Sub-section (1) of Section 4 of the Act is discriminatory because all the programmes of Doordarshan are not covered by the Act, is not well-founded. It Is accordingly rejected, and it is held that Sub-section (1) of Section 4 of the Act is not violative of Article 14 of the Constitution.
10. It is also contended that no qualifications are prescribed for appointing a person to be a member of the Appellate Tribunal, therefore, it is likely that the very object of the Act is defeated by appointing persons who will not be in a position to discharge the duties and perform the functions of the Appellate Tribunal. It is not possible to agree with, this contention because Sub-section (5) of Section 5D of the Act specifically provides that the Central Government may appoint such persons who, in the opinion of the Central Government, are qualified to judge the effect of films on the public, as members of the Tribunal. The Central Government being a high authority and being well-aware of the consequences of exhibition of films and their effect on the public and having necessary resources and machinery to identify the persons who are qualified to judge the effect of the films on public, will be able to appoint only such persons who are qualified to judge the effect of the films on the public. Therefore, it is not possible to hold that arbitrary or unguided powers are conferred on the Central Government by Section 50 of the Act.
11. Section 7 of the Act provides for penalties and punishments for contravention of the provisions of the Act. Clauses (a) to (c) enumerate the acts, the commission of which makes a person liable for punishment with imprisonment or with fine or with both. The whole of Section 7 need not be reproduced, For our purpose it is sufficient to reproduce the following provisions of Section 7 of the Act:
"7(1): If any person -
(a) to (c) xxx xxx xxx he shall be punishable with imprisonment for a terra which may extend to three years or with fine which may extend to one lakh rupees, or with both, and in the case of a continuing offence with a further fine which may extend to twenty thousand rupees for each day during which the offence continues:
Provided that a person who exhibits or permits to be exhibited in any place a video film in contravention of the provisions of Sub-clause (i) of Clause (a) shall be punishable with imprisonment for a term which shall not be less than three months, but which may extend to three years and with fine which shall not be less than twenty thousand rupees, but which may extend to one lakh rupees, and in the case of a continuing offence with a further fine which may extend to twenty thousand rupees for each day during which the offence continues:
Provided further that Court may, for adequate and special reasons to be mentioned in the Judgment, impose a sentence of imprisonment for a term of less than three months, or a fine of less than twenty thousand rupees.
Provided further that notwithstanding anything contained in Section 29 of the Code of Criminal Procedure, 1973, it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class specially empowered by the State Government in this behalf, to pass a sentence of fine exceeding five thousand rupees on any person convicted of any offence punishable under this Part.
Provided also that no distributor or exhibitor or owner or employee of a cinema house shall be liable to punishment for contravention of any condition of endorsement of caution on a film certified as "UA" under this Part.
2) If any person is convicted of an offence punishable under this Section committed by him in respect of any film, the convicting Court may further direct that the film shall be forfeited to the Government.
3) The exhibition of a film, in respect of which an 'A' Certificate or a 'S' Certificate or a 'UA' Certificate has been granted, to children below the age of three years accompanying their parents or guardians shall not be deemed to be an offence within the meaning of this Section."
Thus the Section prescribes maximum sentence of imprisonment or fine or both. It also prescribes the minimum imprisonment and minimum fine in the case of a person who exhibits or permits to be exhibited in any place a video film in contravention of the provisions of Sub-clause (i) of Clause (a) of Sub-section (1) of Section 7 of the Act. Wherever no minimum imprisonment and fine are prescribed, it is open to the Court to impose lesser sentence of imprisonment, and fine.
It is the contention of the petitioners that the prescription of punishment of imprisonment and fine is disproportionate to the various offences enumerated in Sub-section (1) of Section 7 of the Act. Therefore, the provisions of Section 7(1) of the Act in so far they relate to punishment of imprisonment or fine or both are violative of Article 14 of the Constitution. It appears to us that it is not possible to accept this contention.
12, The quantum of punishment for a particular offence is a matter which lies within the legislative wisdom and policy of the legislature. Punishment is intended to serve manifold objects. It is intended to vindicate the majesty of law and ensure obedience to it. Unless the violation of the law is made penal and punishment is prescribed there will be no obedience to it. Apart from this, punishment is also intended to have double effect, namely, preventing the person who has committed a crime from repeating the similar act or omission resulting in commission of crime, and to prevent the other members of the community from committing similar crimes. It is possible to achieve these objects only by providing rigorous punishment of imprisonment or fine or both. Then only punishment of an individual offender will have deterrent effect upon him as well as upon others. With these objects in view and with the experience gained from the enforcement of the Act for the last several decades, the punishment has been enhanced by Act No. 49 of 1981. It is, also relevant to notice that the provisions of the Act relate to cinematograph films and exhibition of the same by way of cinematograph. They are intended to safeguard public interest and prevent the deleterious effects on public at large. Exhibition of cinematograph films will have a great impact on the public mind. As a result thereof, serious consequences flow. The films are the very effective media to directly reach the public and will have a direct and enduring effect on the mind of individual. Therefore the films play a great role in marring and moulding the social life, in imparting knowledge, educating public, eliminating social evils, promoting education, charater-building, affecting the growth of the personality of a child making or marring the career of youths, encouraging and preserving fine arts and culture and several other aspects which are closely connected with the day-to-day activities of not only of an individual but also of the society in general. In the same manner, the wrong and improper use of the films will have very serious deleterious effects on the individuals and the society. Therefore, it becomes necessary to take all possible care and provide necessary protection and prevent the possible misuse of films by strictly enforcing the provisions relating to certification of cinematograph films for exhibition and for regulating exhibition of films by means of cinematographs and punishing the guilty with severe punishment. It is also necessary to notice that wherever maximum sentence of imprisonment or fine or both, is prescribed without prescribing the minimum sentence of imprisonment or fine, it is always open to the Court, having, regard to the facts and circumstances of the case, to impose lesser punishment. Therefore, on taking into consideration all the aspects of the matter, we are of the view that the sentence of imprisonment and fine - maximum and minimum - prescribed by Section 7(1) of the Act cannot be held to be violative of Article 14 of the Constitution.
13. For the reasons stated above, points 2 and 3 are answered in the negative.
POINT N0.4
14. It is contended that power of revision conferred upon the Central Government under Section 6(1) of the Act is violative of the Rule of Law as it contravenes one of the basis structures of the constitution. Section 6(1) of the Act reads thus:
"6(1). Notwithstanding anything contained in this Part, the Central Government may, of its own motion, at any stage, call for the record of any proceeding in relation to any film which is pending before, or has been decided by, the Board, or as the case may be, decided by the Tribunal (but not including any proceeding in respect of any matter which is pending before the Tribunal) and after such inquiry, into the matter as it considers necessary, make such order in relation thereto as it thinks fit, and the Board shall dispose of the matter in conformity with such order:
Provided that no such order shall be made prejudicially affecting any person applying for a certificate or to whom a certificate has been granted, as the case may be, except after giving him an opportunity for representing his views in the matter:
Provided further that nothing in this Sub-section shall require the Central Government to disclose any fact which it considers to be against public interest to disclose."
The Appellate Tribunal came to be created as a result of a decision of the Supreme Court in K.A. ABBAS v. THE UNION OF INDIA AND ANR., The provisions of the Act were attacked on several grounds in that case. The contentions raised by the petitioner therein are summarised in para 8 of the Judgment. It reads:
"8. When the matter came up for hearing, the petitioner raised four points: (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 arbitration action, (c) that there must be a reasonable time-limit fixed for the decision of the authorities censoring the film, and (d) that the appeal should lie to a Court or to an independent tribunal and not the Central Government."
As far as contentions (c) and (d) were concerned, learned Solicitor General conceded. In view of that, the Court observed thus:
"9. The Solicitor-General conceded (c) and (d) and stated that Government would set on foot legislation to effectuate them at the earliest possible opportunity. Since the petitioner felt satisfied with this assurance, we did not go into the matter. But we must place on record that the respondents exhibited charts showing the time taken in the censorship of films during the 1st one year or so and we are satisfied that except in very rare cases the time taken could not be said to be unreasonable. We express our satisfaction that the Central Government will cease to perform curial functions through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression. Experts sitting as a Tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary and therefore, it is better that the appeal should lie to a Court or Tribunal."
Pursuant to this, the provisions contained in Sections 5C and 5D came to be enacted by Act No. 49/1981 with effect from 1-6-1983 providing for a right of appeal to the Appellate Tribunal against certain decisions of the Board as specified in Clauses (a) to (e) of Sub-section (1) of Section 5C and also for constitution of Appellate Tribunal in accordance with Section 5D of the Act. As per Section 5D of the Act, the Tribunal shall consist of Chairman and not more than four other members appointed by the Central Government. As per Sub-section (4) of Section 5D of the Act, the Chairman shall have to be a person who is either a retired Judge of a High Court or is qualified to be a Judge of a High Court. As far as Members of the Appellate Tribunal are concerned, only such persons can be appointed as members who in the opinion of the Central Government are qualified to judge the effect of films on the public. Thus the Appellate Tribunal consists of members who are experts in the field and also an expert in the legal field namely the Chairman. If the matter stood at that, probably there would not have been any grievance left with the petitioner. However, along with creating the right of appeal and forum of appeal, the Act No. 49/1981 also further conferred power of Revision on the Central Government against the orders of the Appellate Tribunal as indicated above. There is no difference between the power of appeal enjoyed by the Appellate Tribunal and the power of revision enjoyed by the Central Government against the order of the Appellate Tribunal. Under Sub-section (2) of Section 5D of the Act, the Appellate Tribunal may, after making such inquiry into the matter as it considers necessary, and after giving the appellant and the Board an opportunity of being heard in the matter, make such order in relation to a film as it thinks fit and the Board shall dispose of the matter in conformity with such order- The revisional power conferred upon the Central Government by Sub-section (1) of Section 6 of the Act also provides that the Central Government after such enquiry Into the matter as it considers necessary make such order in relation thereto as it thinks fit and the Board shall dispose of the matter in conformity with such order.
15. The contention of the learned Central Government Standing Counsel is that as there is no strict separation of powers under the Constitution and the judicial functions can also be discharged by the authorities other than the judicial authorities, the conferment of revisional power on the Central Government against a decision of the Appellate Tribunal cannot be held to be unconstitutional. It is submitted that the power is exercisable after the certification of the film. Naturally, it has to be exercised with reference to the impact of the film on the public after its exhibition. Whereas it is contended on behalf of the petitioner that when the decision as to certification of the film is rendered by the quasi-judicial body like the Appellate Tribunal consisting of a retired High Court Judge and experts in the filed as its members, subjecting it to the revision by the Executive, would result in permitting the executive to interfere not only with the exercise of the judicial power, but also with the very decision of the judicial authority i.e., Appellate Tribunal; that the Constitution subjects the decisions of the executive to the judicial review and not the decisions of a judicial authority to the scrutiny of the executive. The Executive has to obey the Judicial Decisions. It is also further submitted that Section 6(1) of the Act is a travesty of the Rule of Law which is one of the basic structures of the Constitution. As such it is submitted that Section 6(1) of the Act is unconstitutional.
16. It is true that there is no strict separation of powers under the Constitution inasmuch as the judicial functions can also be entrusted to the authorities other than the judicial authorities; but this does not mean that the Executive can exercise or can be entrusted with the power of judicial review over the decisions of judicial authority i.e., a Court or a Tribunal. It is an inalienable power and function of the judicial authority to see that the laws are obeyed and the Executive works within the frame-work of law under the Constitution. There is a strict separation of powers in the sense that the Legislative, Executive and Judicial Powers are defined. Though the Legislature may overrule or nullify the judicial and executive decisions by enacting appropriate legislation, but it cannot decide or give judicial verdict by legislation; it can pass a law taking away the very substratum of a judicial verdict. Similarly the Executive also cannot set at naught the judicial decisions. It cannot exercise the power of judicial review. The executive has to carry out and obey the decisions of the judicial authority. Similarly it is not the function of the judiciary to legislate except to explain or remove ambiguity in the law and to make the law more perfect and to be in conformity with the Constitution, and it is also the function of the judiciary to exercise the power of judicial review and to strike down the law which is unconstitutional. Thus one of the functions of the, judiciary is to ensure that the Legislature and the Executive function within their respective spheres and within the frame of the Constitution. Thus all the three wings of the STATE have to work within their respective! spheres as set out in the Constitution, The Judicial Review of Executive and Legislative actions is the exclusive jurisdiction of the judiciary. It cannot be exercised by the Executive. The Appellate Tribunal under the Act came to be created pursuant to the observation made by the Supreme Court in K.A. Abbas's case that the Experts sitting as a Tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary and therefore, it is better that the appeal should Me to a Court or Tribunal.
The Supreme Court in P. SAMBAMURTHY AND ORS. v. STATE OF ANDHRA PRADESH AND ANR., AIR 1987 SC 663. has struck down Clause (5) of Article 371D of the Constitution on the ground that it is violative of the basic structures doctrine. Clause (5) of Article 371D of the Constitution subjected the order of the Administrative Tribunal to the decision of the State Government. While striking down the said provision, the Supreme Court has observed thus:
"4. It is obvious from what we have stated above that this power of modifying or annulling an order of the Administrative, Tribunal conferred on the State Government under the proviso to Clause (5) is violative of the Rule of Law which, is clearly a basic and essential feature of the Constitution. It is a basic principle of the Rule of Law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review is conferred by the Constitution with a view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the Rule of Law is maintained and every organ of the State is kept within the limits of the law. Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound the death knell of the Rule of Law. The Rule of Law would ceased to have any meaning because then it would be open to the State Government to defy the law and yet to get away with it. The proviso to Clause (5) of Article 371D is therefore, clearly violative of the basis structure doctrine,
5.....This constitutional amendment authorising exclusion of the jurisdiction of the High Court and vesting of such jurisdiction in the Administrative Tribunal postulates for its validity that the Administrative Tribunal must be as effective an institutional mechanism or authority for judicial review as the High Court. If the Administrative Tribunal is less effective and efficacious than the High Court in the matter of judicial review in respect of the specified service matters, the constitutional amendment would fall foul of the basic structure doctrine. Now it can hardly be disputed that the provision enacted in proviso to Clause (5) of Article 371D deprives the Administrative Tribunal of its effectiveness and efficacy because it enables the State Government which is a party to the litigation before the Administrative Tribunal to override the decision given by the Administrative Tribunal.....In the circumstances the conclusion is inescapable that the Proviso to Clause (5) of Article 371D by which power has been conferred on the State Government to modify or annul the final order of the Administrative Tribunal is violative of the basic structure doctrine since it is that which makes the Administrative Tribunal a less effective and efficacious institutional mechanism or authority for judicial review and it is only by striking down that provision as being outside the constituent power of Parliament that Clauses (3) to (8) of Article 371D can be sustained. We must, therefore, hold that the Proviso to Clause (5) of Article 371D is unconstitutional as being ultra vires the amending power of Parliament and if the Proviso goes, the main part of Clause (5) must also fall along with it, since it is closely inter-related with the proviso and cannot have any rationale for its existence apart from the proviso. The main part of Clause (5) of Article 371D would, therefore, also have to be declared unconstitutional and void."
What is true of the proviso to Clause (5) of Article 371D of the Constitution is also equally true of the power of revision conferred upon the Central Government against the decision of the Board of Film Certification and also the decision of the Appellate Tribunal under Section 6(1) of the Act. Therefore, we are of the view that Section 6(1) of the Act in so far it enables the Central Government to exercise the power of revision against the decisions of the Board of Film Certification and also the Appellate Tribunal is violative of the basic structures of the Constitution. The decision of the Board of Film Certification refusing to grant a certificate; or granting only an 'A' Certificate; or granting only a 'S' Certificate; or granting only a 'UA' Certificate; or directing the applicant to carry out any excisions or modifications, is appealable under Section 5C of the Act. The appeal lies to the Appellate Tribunal. Therefore, the power of revision conferred upon the Central Government against the order of the Board of Film Certification falling under Section 5C of the Act interferes with the exercise of judicial power. Similarly the words "Or to whom a certificate has been granted, as the case may be" found in the first proviso to Sub-section (1) of Section 6 of the Act are also likely to lead to serious anomoly inasmuch as if the Appellate Tribunal, on reversing the order of the Board of Film Certification, grants the certificate, the question of exercising the power of revision by the Central Government against the decision of the Appellate Tribunal does not arise. Further, the order granting only 'A' Certificate, a 'S' Certificate and a 'UA' Certificate is appealable under Section 5C of the Act. Therefore, it is also not possible to read down the aforesaid provision contained in the first proviso to Section 6(1) of the Act confining it to the grant of certificate by the Board of Film Certification only, as in such a case it will Interfere with the exercise of appellate jurisdiction by the Appellate Tribunal. Therefore the words "or to whom a certificate has been granted, as the case may be" found in the first proviso to Section 6(1) of the Act arc also to be struck down as unconstitutional as the same cannot stand independently and cannot have any rationale for their existence apart from the words contained in the main portion of Subsection (1) of Section 6 of the Act which we have held as unconstitutional. Thus on taking into consideration all the aspects of the issue in question, we are of the view that the aforesaid words contained in the main portion of Sub-section (1) of Section 6 of the Act and in the first proviso thereto are opposed to the basic structures of the Constitution and as such the words "or has been decided by" and "or as the case may be decided by the Tribunal" contained in the main portion of Sub-section (1) of Section 6 and the words "or to whom a certificate has been granted as the case may be" as contained in the first proviso to Section 6(1) of the Act, are unconstitutional as the same are violative of the basic structures of the Constitution.
17. For the reasons stated above, the provisions of Sections 3(1), 4(1) and 5D and also Section 7(1) of the Act are held as valid and constitutional. Whereas the following words "or has been decided by" and "or as the case may be decided by the Tribunal" contained in the main portion of Section 6(1) of the Act and the words "or to whom a certificate has been granted as the case may be" as contained in the first proviso to Section 6(1) of the Act, are held as unconstitutional and the same are struck down.
18. In the facts and circumstances of the case, there will be no order as to costs,
19. After we pronounced the order, the learned Standing Counsel for the Central Government made an oral application under Section 134A read with Article 133 of the Constitution to grant a certificate that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court because a part of Section 6(1) of the Act has been struck down as unconstitutional,
20. As we have held that the power of revision conferred on the Central Government against the decision of the Board of Film Certification and the Appellate Tribunal is unconstitutional end we have consequently struck down that portion of Sub-section (1) of Section 6 of the Act which enables the Central Government to exercise the power of revision against, the decisions of the Board of Film Certification and the Appellate Tribunal, we are of the view that the case involves a substantial question of law of general importance, which, in our opinion, needs to be decided by the Supreme Court. We accordingly, grant the certificate under Article 133(1) of the Constitution.
21. It is also submitted by the learned Standing Counsel for the Central Government that Sub-section (1) of Section 6 of the Act including the offending portion has been in force for the last 9 years, therefore, to enable the Central Government to obtain appropriate interim order from the Supreme Court, the operation of the order just now pronounced may be stayed for a period of three months. We are of the view that the submission made by the learned Standing Counsel for the Central Government deserves to be accepted. We accordingly, stay the operation of our order just now pronounced for a period of three months.