Bombay High Court
Avtar Bhogal Singh And Anr. vs The Joint Secretary, Ministry Of ... on 5 September, 1995
Equivalent citations: 1996(1)BOMCR345
JUDGMENT D.R. Dhanuka, J.
1. For the reasons briefly set out hereinafter Interim Stay of the operation of the Notification dated 17th August, 1995 (Exhibit "D" to the petition) with liberty to respondent No. 1 to pass appropriate orders in accordance with law in the revisional proceedings pending before it under section 6 of the Cinematograph Act, 1952. Interim Relief in terms of prayer (c) of the petition.
2. By the impugned Notification, the Central Government has directed that the Exhibition of the Hindi Film "DIL KA DOCTOR" be suspended with immediate effect for a period of two months or until further orders whichever was earlier. It was recited in the impugned Notification that the Central Government had received a complaint alleging that the said film contained visuals degenerating persons working in the Nursing Profession; that it was necessary to enquire into the allegations made in the said complaints under section 6(1) of the Cinematograph Act, 1952(37 of 1952) and that the Central Government was of the opinion that it would not be in Public Interest if the said film was exhibited pending inquiry under section 6 of the said Act.
3. Heard the learned Counsel for the petitioners, the respondents and the Intervenors i.e. The Delhi Nurses Union. I have viewed the film in company of the learned Counsel and the authorised representatives of the petitioners, the Central Government and the Intervenors.
4. The petitioner No. 1 carries on business of production of Cinematographic Films in the firm name and style of A.B.C. FILM INTERNATIONAL. The petitioner No. 2 carries on business of the Satellite Broadcasting of Cinematographic Films and other T.V. Programmes in the firm name and style of M/s. ESSEL VISION at 135, Dr. Annie Besant Road, Worli, Bombay. The petitioner No. 1 is the Producer of the Hindi Movie/Film "DIL KA DOCTOR" (hereinafter referred to as "the said film").
5. On 15th May, 1995, the petitioner No. 1 made an application to the Central Board of Film Certification for issue of certificate for unrestricted public exhibition in respect of the said film. On 23rd May, 1995, the said film was viewed by a Examining Committee of the Board. The Examinaing Committee unanimously recommended grant of an "A" Certificate to the film subject to one cut relating to the song in the said film (Reel No. 6) as set out in its report. The Chairman of the Board approved the recommendation made by the Examining Committee and issued a show cause notice to the petitioner No. 1 in this behalf. The petitioner No. 1 did not accept the proposal of the Board for grant of "A" Certificate in respect of the said film subject to the cut as suggested by the Examining Committee and requested that the said film be examined by the Revising Committee as contemplated under Rule 24 of the Cinematograph (Certification) Rules. The said film was viewed and examined by the "First Revising Committee". By majority of 6 to 3, the Revising Committee recommended grant of clear "A" Certificate in respect of the said film. The dissenting members recommended grant of a clear 'U/A' Certificate. On 13th June, 1995, the said film was viewed by the 2nd Revising Committee consisting of 9 members. It may be stated in the passing that the Revising Committee included 6 lady members. After detailed scrutiny and discussion as reflected in the minutes of the meeting held by the 2nd Revising Committee on 13th June, 1995 and after viewing of the said film, the 2nd Revising Committee unanimously recommended that 'U/A' Certificate be issued in respect of the said film subject to several cuts suggested therein. The cuts suggested by the 2nd Revising Committee were effected. On 7th July, 1995, the Central Board of Film Certification issued its 'U/A' Certificate in respect of the said film subject to deletions from the song in dispute starting with "UPPER SE DEKHA TUNE" and all provocative and indecent visuals of "the dancing girl" as set out in the said certificate. The Court is informed that the said deletions have been carried out and the film is ready for public exhibition.
6. Soon thereafter and since about 20th July, 1995 advertisements were published at the instance of petitioners in respect of the said film in Cine Magazines. It was widely announced by the petitioners through the media that the said film would be telecast at 5.00 p.m. on 20th August, 1995. An advertisement was published in Times Entertainment Guide dated August 4/10, 1995 and also in India Today (Hindi) August issue. The Delhi Nurses Union made representation to the Government of India by its letters dated 24th July, 1995 and 4th August, 1995, alleging therein that the release of the said film should be cancelled as in its opinion the said film denigrated the nursing profession which was undoubtedly a noble profession. On 20th July, 1995, a resolution was passed by Delhi Nurses Union expressing its protest in respect of the advertisements appearing in the magazines and media in respect of the said film. It was stated in the said Resolution that the said advertisement showed nursing profession in an objectionable manner and so as to disgrace the nursing profession. It was stated in the said resolution that the advertisement in T.V. showed young nurses with the Hero Doctor in a pose which was not only unrealistic but was disgraceful. On or about 14th August, 1995, the Delhi Nurses Union filed Writ Petition No. 2981 of 1995 before the High Court of Delhi seeking issue of a writ or order to stop the release, transmission and exhibition of the said film inter alia on the ground that public image and prestige of nursing profession was being damaged by the said film. At about 2.30 p.m. on 17th August, 1995, the Hon'ble High Court of Delhi passed in its order recording therein, that the learned Central Government Standing Counsel was agreeable that the Secretary in the Ministry of Information and Broadcasting shall be pleased to grant the hearing to the Delhi Nurses Union at 3.30 p.m. on 17th August, 1995. The Hon'ble High Court of Delhi recorded the statement of the learned Counsel for Delhi Nurses Union that in case any adverse order was passed against the Nurses Union, the Union shall be at liberty to file a fresh petition. After recording the above, the Delhi High Court dismissed the abovereferred Writ Petition No. 2981 of 1995 on the footing that it was not necessary for the Court to interfere at that stage. The Delhi Nurses Union had also stated in its complaint that the nurses would stage Dharna outside the premises of the Ministry of Information and Broadcasting on 17th August, 1995 between 11.15 a.m. to 3.00 p.m. The Nurses threatened to go on strike.
7. On 17th August, 1995, Shri Raghu Menon, Joint Secretary (F) passed an ex-parte order dated 17th August, 1995, to the effect that the exhibition of the said film be suspended for a period of two months or until further orders whichever was earlier as permissible under section 6(2)(c) of the Cinematograph Act, 1952. It is stated in the said order that the Nurses Union had alleged that certain visuals in the said film portrayed nurses in vulgar, ridiculous and unbecoming manner. In the said order it was further stated that it was necessary to call for the print of the film and record of the proceedings before the board of certification and hold an enquiry as provided under section 6 of the Act and pending such enquiry suspend exhibition of the said film, in view of the complaints received by the Central Government from the Nurses Unions. In view of the said order, the impugned notification dated 17th August, 1995 suspending the exhibition of the said film was issued by the Central Government.
8. A copy of the Notification dated 17th August, 1995 was served by the Central Government on petitioner No. 2 alongwith its letter dated 18th August, 1995. Zee Tele Films was directed not to telecast or Cable T.V. or Satellite channel or schedule any public exhibition of the said film until further orders.
9. On 19th August, 1995, the petitioners filed this petition and moved this Court for admission of the petition and urgent Interim Relief. By an order passed on 24th August, 1995, this Court admitted the petition and fixed the hearing of application for Interim Relief at 2-45 p.m. on 28th August, 1995. The Court granted oral application of Delhi Nurses Union for intervention in this proceeding. The Central Government was directed by order of the Court dated 24th August, 1995 to disclose the material on the basis of which the impugned order dated 17th August, 1995 was passed by respondent No. 2. Shri Raghu Menon, the Joint Secretary, Ministry of Information and Broadcasting, Government of India, New Delhi has filed his affidavit in this proceeding being affidavit dated 25th August, 1995. The Delhi Nurses Union has filed affidavit of Ms. Lizzie Cherian in support of the intervention.
10. I have carefully gone through the affidavit of Shri Raghu Menon dated 25th August, 1995, for purpose of appreciating the case of the respondents justifying the impugned ex-parte order dated 17th August, 1995 and the materials, if any, on the basis of which the impugned order was passed. It is admitted on behalf of the respondents in the said affidavit that Shri Raghu Menon, the Joint Secretary in the Ministry of Information and Broadcasting had not even viewed the film before passing the impugned order dated 17th August, 1995 and no hearing or no opportunity of being heard or making any representation was granted to petitioner No. 1 before issuing of the impugned order, dated 17th August, 1995. The deponent of the said affidavit has stated in para 12 of his affidavit that the purpose of order of suspension was to prevent any precipitated action that may be taken by the Nurses by going on strike which would have affected patient care. The deponent of the said affidavit has stated that there was no time left to hear the petitioner at the stage at which the ex-parte order dated 17th August, 1995, was passed. The Court was informed by the learned Counsel for Central Government during the course of his arguments that 18th August, 1995 to 20th August, 1995 were Holidays and it was not practicable for the Central Government to hear the petitioners before the abovereferred temporary order of suspension was passed. The Court is informed by the learned Counsel for Central Government that on 21st August, 1995, a further order was passed by the Central Government under section 6(1) of the Act directing issue of show cause notice to the petitioner No. 1 after viewing of the film, a copy of which was received by the Ministry from the Central Board of Film Certification. It appears from the copy of the said order dated 21st August, 1995 that by the said order the Central Government has provisionally decided to pass an order of remand and direct the Board of Film Certification that the film be examined by another Revision Committee of the Board in light of the complaint received. It appears from the said order dated 21st August, 1995, that the Central Government has decided to issue show cause notice to the petitioner in respect of the said proposed order of remand in the revisional proceedings pending before it under section 6(1) of the Act. It appears that a show cause notice has already been issued by the Central Government to the petitioners to show cause in respect of the said proposed order. It appears that a show cause notice has already been issued by the Central Government to the petitioners to show cause in respect of the proposed order and the direction of the Central Government that the said film be examined by another Revising Committee in light of the complaints received by the Government. A copy of the said show cause notice issued in this behalf on 21st August, 1995 is made available to the Court. The petitioners were required to show cause in the main Revisional Proceedings on or before 31st August, 1995. The said proceedings are stayed by the Court for the time being as this proceeding was part-heard' at the time when order of Stay of proceedings pending before the Central Government was passed by the Court.
11. The learned Counsel for the petitioners has made the following principal submissions at the Bar.
(1) On true construction section 6(1) of Cinematograph Act (37 of 1952), showed it would be held that the Central Government has revisional jurisdiction only to determine whether the public exhibition of the film in controversy would be detrimental to the interest of the country or the Security of the State or Public Order. The learned Counsel submits that the Central Government has no jurisdiction to determine whether the film suffers from the vice of indecency or immorality. The learned Counsel relies on observations made in para 8 of judgment of this Court delivered by Pendse, J., (as he then was (Now the Hon'ble Chief Justice of High Court of Karnataka) sitting singly in the case of Hiralal M. Shah v. The Central Board of Film Certification, reported in A.I.R. 1987 Bombay 192 and submits that the revisional proceedings herein and the impugned order are patently and totally without jurisdiction.
(2) The impugned order is violative of fundamental rights of petitioner No. 1 granted under Article 19(1)(a) of the Constitution of India and the respondents have failed to prove that the impugned order is saved under Article 19(2) of the Constitution or that it is passed in conformity with the provisions of Act 37 of 1952.
(3) The impugned order is violative of principles of natural justice since it was passed without issue of any show cause notice or giving any opportunity of being heard to the petitioners and not even the post-decisional hearing.
(4) Section 6(2)(c) of Act 37 of 1952, cannot be construed so as to exclude the applicability of principles of natural justice merely because Act does not expressly provide for an opportunity of being heard in respect of the action taken and orders passed under the said sub-section. The impugned order is liable to be treated as a nullity and is therefore, non-est. (5) The impugned order was passed casually, without even viewing of the film and without recording any reasons or even a prima facie finding to the effect that the said film offended the statutory guidelines, merely because of complaints made by the intervenors coupled with threat of staging Dharna and strike by the members of Nursing Profession. This impugned order was passed on extraneous considerations.
12. The learned Counsel for the respondents has submitted that the petitioners could not be heard by the Central Government before issue of the impugned order as there was no time left for grant of hearing on 17th August, 1995 and the Central Government thought it proper to pass a temporary order of suspension of the film for a maximum period of two months or until further orders, whichever was earlier, before passing of the final orders in the revisional proceedings under section 6(1) of the Act. The learned Counsel for the respondents has relied on para 12 of the affidavit in reply. The relevant portion of para 12 of the said affidavit is as under :---
"The purpose of the order of suspension was also to prevent any precipitate action that may be taken by the Nurses all over India by going on strike which would have affected patient care."
The learned Counsel has submitted that the impugned order was thus passed in larger public interest. The learned Counsel has relied on copies of orders dated 17th August, 1995 and 21st August, 1995 passed by the Central Government as well as show cause notice now issued to the petitioners on 21st August, 1995 (Annexture E-4) in respect of main revisional proceedings (not in respect of impugned order of suspension) calling upon the petitioners to show cause why the telefilm be not viewed by another revising committee of the Board in light of the complaints received by the Ministry of information and Broadcasting. It appears from the text of show cause notice dated 21st August, 1995 that the Central Government is tentatively of the opinion that the film should be remanded to the Chairman, Central Board of Film Certification, for reference of the matter to another revising committee for an appropriate decision in light of the allegations made in the complaint received from the various Nurses Organization. By the said show cause notice, the petitioners were requested to represent their views on the proposed action of the Central Government on or before 31st August, 1995. The learned Counsel relies on Rule 32(2) of the Cinematograph (Certification) Rules 1983. The learned Counsel submits that section 6(3) of the Act provides for giving of an opportunity to the person concerned for representing his views in the matter only where the Central Government exercised its powers under section 6(2)(a) or section 6(2)(b) of the Act. The learned Counsel submits that no such opportunity need be given when the exhibition of the film is suspended by the Central Government in exercise of its powers under section 6(2)(c) of the Act. The learned Counsel has submitted that the impugned order dated 17th August, 1995 was passed without granting of an opportunity of being heard to the petitioner in view of the urgency of the situation and the show cause notice dated 21st August, 1995 should be construed to mean that a post-decisional hearing was and is offered by the Central Government to the petitioners in respect of impugned order of suspension as well. The learned Counsel has submitted that the Central Government would get the said film examined by another revising committee very soon and pass its final orders on the revisional proceedings under section 6 of the Act within a short time. The learned Counsel for respondents has tendered copies of Minutes/report in respect of the proceedings before the Examining Committee, first revising committee and the second revising committee of the Board.
13. The learned Counsel for the intervenors has relied on Rule 11 of Cinematograph (Certification) Rules, 1983 providing for assessment of public re-actions to films with a view to determining the principles to be observed in certifying films. The learned Counsel has submitted that the impugned order is not justiciable as it is an urgent ex-parte order. The learned Counsel has submitted that the writ Court should not pass any interim or other order in favour of the petitioners as sought for since according to the learned Counsel the said film humiliates the nursing profession and denigrates its members. The learned Counsel submits that ex-facie the said film offends the statutory guidelines as it contains scenes degrading or denigrating women i.e. nurses in this case and defaming members of nursing profession and no case is made out by the petitioners for judicial intervention of this Court.
14. In my opinion, there is considerable merit in each of submission made on behalf of the petitioners except perhaps in respect of the first submission and there is no merit in the submission made on behalf of the respondents and the intervenors. For the reasons set out hereinafter, I hold that the impugned order is contrary to law, violative of principles of natural justice and the guarantee of fundamental right contained in Article 19(1)(a) of the Constitution and passed in a very casual manner on irrelevant considerations i.e. the threats of strikes and Dharnas by the Nurses, and without even examining the said film prior to passing of the order of suspension though necessary and is a nullity. I reject each of the submission urged on behalf of the Central Government and the intervenors on the ground that the same are not well founded in law.
15. I have carefully gone through the judgement of this Court in the case of Hiralal M. Shah v. The Central Board of Film Certification, Bombay and others. According to my prima facie view, the revisional jurisdiction of the Central Government conferred under section 6(1) of the Act is not restricted to determining whether the public exhibition of the film in controversy would be detrimental to the interest of the country or the security of the State or Public Order. In the abovereferred case, the learned Judge expressed his view to the effect that no revisional power should be exercised by the Central Government to determine as to whether the film suffered from the vice of indecency or immorality on the ground that the Joint Secretary of the Central Government was not qualified to judge the effect of the film on the public and had no experience of examination of the films. The learned Judge held that the Central Government had exceeded its jurisdiction while setting aside order of the Appellate Tribunal under the Act directing issue of "A" Certificate with certain cuts. The learned Judge observed that the revisional power should be exercised sparingly and in exceptional circumstances and the revisional proceedings under section 6 of the Act could not be considered as another appeal. The learned Judge observed that the question as to whether a film offended the guidelines as regards vulgarity or obscenity depended upon several factual matters and the Appellate Tribunal constituted under the Act was an expert statutory authority in the matter. The learned Judge observed that it was desirable that the Central Government should not casually disturb the conclusions arrived at by the statutory authorities below. The learned Judge observed that the Secretary of the Central Government in the Ministry could not substitute his personal opinion in place of the decision of an expert body constituted under the statutory provisions for examination of the film.
16. Prima facie I am of the opinion that the revisional jurisdiction of the Central Government can be exercised in an exceptional case if the film in controversy offends any of the guidelines issued by the Central Board under section 5-B(2) of the Act, keeping in mind the principle that the revisional jurisdiction should be exercised only in exceptional circumstances. This aspect of the case can be examined in greater depth at the final hearing of the petition and a report can be made to the Hon'ble the Chief Justice for constitution of a larger bench for consideration of the correctness of this part of the ratio of said decision, if deemed fit. I respectfully agree with the view expressed by Pendse, J., in the said case that the revisional powers can be exercised by the Central Government only in exceptional circumstances and sparingly. This application for Interim Relief in terms of prayer (c) can be easily decided in light of other submissions made at the bar on the assumption that the Central Government has the necessary jurisdiction to exercise its revisional powers on any of the grounds set out in the Act or the statutory guidelines in an appropriate case. I propose to decide the application for interim relief in light of my strong prima facie view in respect of validity of the impugned order having regard to other contentions urged by the learned Counsel for the petitioners, the learned Counsel for the respondents and the learned Counsel for intervenors and not on the ground of alleged lack of jurisdiction.
17. The learned Counsel for the petitioner has rightly relied on the ratio of judgment of the Apex Court in the case of Life Insurance Corporation of India v. Prof. Manubhai D. Shah heard with the case of Union of India v. Cinemart Foundation, . In this case, Ahmadi, J., as his Lordship then was (now the Hon'ble Chief Justice of India), speaking for the Apex Court in terms held that a film maker had a fundamental right under Article 19(1)(a) to exhibit his film and the onus lied on the State to show that it was entitled to refuse enforcement of the said right under Article 19(2) of the Constitution or the law made thereunder. In this case, the Hon'ble Supreme Court relied on statement of law formulated by the Court in the cases of K.A. Abbas v. Union of India, ; Ramesh v. Union of India, ; S. Rangarajan v. P. Jagjivan Ram,. It was laid down by the Apex Court in the case of K.A. Abbas v. Union of India as under :
"The requirements of art and literature include within themselves a comprehensive view of Social Life not only in its ideal form..........."
A film maker has fundamental right to make a film depicting evils of a Society existing or likely and indulge in imagination or fiction so long as the film does not offend constitutional or statutory guidelines. The film may be a comedy. The Film industry is a part of entertainment Industry. The film maker may depict even the bad characters or undesirable members of the society from any walk of life as for example from the noble profession of teachers, Doctors, Lawyers, Ministers, Nurses etc. without violating the constitutional and statutory guidelines. It all depends upon an overall effect of the film on the society and the viewers and the manner of presentation of the theme. Merely because the film depicts the scenes of rape, romance, kissing, sexual immorality or even prostitution, it does not necessarily follow without anything more that the film necessarily offends the statutory guidelines. It all depends upon the manner of presentation in context of theme of the picture and its overall effect on the mind of a reasonable person and the expert assessment regarding effect of the film having regard to contemporary standards. The film may show imaginary, funny, unrealistic scenes without offending the statutory guidelines. In my opinion, exhibition of the film for the public cannot be banned or suspended merely because the right thinking members of the Society or some of the persons with idealistic temperaments may perhaps dislike such films. There cannot be universal appeal in respect of such films.
In this case, the Board has certified the film as fit and suitable for public exhibition subject to certain cuts. The respondents have however, directed suspension of exhibition of the said film without even viewing the film. Mere fact of filing of complaints by the intervenors coupled with threats of agitation without anything more can never be a valid ground in law to suspend public exhibition of a duly certified film. No prima facie opinion, was formed by the Central Government on merits of the said film in light of the basic issue as to whether the film violated the statutory prescription and as to whether the opinion of the expert revising committee of the Board was shown to be perverseor appeared to be perverse. In S. Rangarajan v. P. Jagjivan Ram, , Shetty, J., speaking for the Court observed as under :
"If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be restricted on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and surrender to blackmail 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".
The observations made in paras 52 and 53 of the said judgment are of considerable significance. In this case, the respondent did surrender its discretion to threats of strike and Dharna by the Nurses admitted in para 12 of affidavit in reply. In this case, the affidavit in reply does not even set out any defence to the petitioner within the contemplation of Article 19(2) of the Constitution. The Revising Committee of the Board approved the film subject to certain cuts. The impugned order is thus prima facie a nullity. It is not for this Court to express an opinion on the question as to whether the film is good or bad. If the film shows the doctor, nurses and patients in a bad light as alleged by the intervenors and in an unrealistic manner as alleged and depicts situations in the realm of fiction and imagination, the right thinking members of the medical and nursing profession ought not to interpret such depiction as reflection all doctors or all nurses or treat the film as denigrating the entire medical or nursing profession as such. The film may show character artists as well as the Devils. The Nurses shown in the said film do not represent all nurses or right thinking members of the Nursing profession. The right thinking members of Nursing profession would not indulge in romance with the doctor or the others in the hospital, nursing centre or the ward of the patients. It does not necessarily follow from the above that the film necessarily offends the guidelines are deserves to be banned. The Central Government ought not to have and could not have suspended the exhibition of film merely because of threats of agitation from the members of Nursing profession without anything more. The impugned order is, therefore, violative of fundamental rights guaranteed under Article 19(1)(a) of the Constitution and is not saved under Article 19(2) of the Constitution or the law made thereunder. The impugned order is thus a nullity. This is my strong prima facie view. In Nawabkhan v. State of Gujrat, , it was held by the Apex Court that an externment order passed under section 56 of Bombay Police Act, 1951 without giving an opportunity to the externee to tender his explanation was null and void. It was observed by the Court that an order which infringed a fundamental freedom passed in violation of the audi alteram partem rule was a nullity. It was observed that when a competent Court set aside such an order, it operates from nativity i.e. the impugned order was never valid. It is admitted that no show cause notice was issued to the petitioners before passing of the impugned order dated 17th August, 1995. No opportunity of being heard was given to the petitioner before passing of the impugned order. I am not satisfied that the situation was so emergent that the impugned order was required to be passed without even following the minimal principles of natural justice. Even post-decisional hearing was not offered to the petitioners. The show cause notice dated 21st August, 1995 is liable to be construed as giving of an opportunity merely in respect of proposed order of remand of the film to another revising committee while finally disposing of revisional proceedings and not as an opportunity to show cause in respect of impugned order of suspension. The impugned order was passed by Central Government in violation of principles of natural justice and in a very casual manner relying on factors like threat of strike and demonstration which are liable to be considered as totally irrelevant and extraneous to the exercise of statutory power of this kind. The respondents ought to have formed and expressed its prima facie opinion on the basic issues as to whether the film offended the statutory guidelines and as to whether the expert examination of the film by the three committees of the Board was shown to be perverse or was liable to be interfered with in a revisional proceedings by the ex-parte order of suspension of the film.
18. The learned Counsel for the Central Government has invited attention of the Court to section 6(3) of the Act which provides that no action shall be taken under Clause A or Clause B of sub-section (2) except after giving an opportunity to the person concerned for representing his views in the matter. The learned Counsel submitted that the above referred express provision of giving an opportunity to the party affected for representing his view in the cases covered under section 6(2)(a) and (b) of the Act clearly indicated that no such opportunity need be given by the Central Government before passing of an order for suspending the film exhibition under section 6(2)(c) of the Act. I am not at all convinced, with the correctness of this submission. The principles of natural justice shall have to be read in section 6(2)(c) of the Act by necessary implication. If section 6(2)(c) of the Act is interpreted to mean that the Central Government is entitled to suspend the exhibition of a film duly certified by the Board at any stage and without observing the principles of natural justice, section 6(2)(c) of the Act may have to be declared unconstitutional as violative of fundamental rights guaranteed under Articles 14 and 19(1)(a) of the Constitution of India. In this situation, I hold that the mandate to observe principles of natural justice before passing of order of suspension of the exhibition of the film is implicit in section 6(2)(c) of the Act and section 6(2)(c) of the Act so construed is valid. In a rare and extreme situation, the order of suspension of film can be passed by the Central Government even after the exhibition of the film has already commenced. If due to urgency and emergency no prior hearing can be granted to the party affected before passing of order of suspension of exhibition of film, at least the post-decisional hearing must be offered to the parties affected without any delay. Although not the post-decisional hearing is no substitute for a pre-decisional hearing. Ordinarily a speaking order should passed in matters of this nature.
19. The learned Counsel for the petitioner was right in inviting the attention of the Court to the view expressed by the Hon'ble Supreme Court in para 10 of its judgment in the case of S.L. Kapoor v. Jagmohan and others, , and the view expressed by the Honourable Supreme Court in the case of Mohindersingh Gill v. Chief Election Commissioner, . The silence of the statute in respect of giving of an opportunity of being heard in cases falling under section 6(2)(c) of the Act has no exclusionary effect. It was therefore, incumbent upon the Revisional Authority to grant an opportunity to the party affected for representing the views in the matter before the impugned order was passed suspending the exhibition of the film. The impugned order is thus totally violative of principles of natural justice. The impugned order is clearly violative of principles of natural justice and the rules of fairplay. The impugned order is thus a nullity.
20. The learned Counsel for the respondents as well as the learned Counsel for the intervenor submitted that there was no time to grant an opportunity to the petitioners to show cause before impugned order dated 17th August, 1995 was issued. It is not possible to accept this submission. The necessary certificate of exhibition was granted by the Board of Film Censors on 7th July, 1995. The film was adequately advertised since quite some time. Even during course of intervening holidays, the film could have been viewed by the Joint Secretary of the Ministry on behalf of the Central Government and an opportunity could have been available to the petitioners to show cause. No attempt was made to view the film and consider its overall impact before the impugned order dated 17th August, 1995 was passed by the Central Government. The show cause notice issued by the Central Government in pursuance of order dated 21st August, 1995 does not confer an opportunity on the petitioners to show cause on the question as to whether the order of suspension should not be confirmed or revoked. Conferring of an opportunity to show cause in terms of proviso to section 6(1) of the Act in relation to passing of the final order at the final hearing of the Revisional Proceedings is no substitute for the mandatory requirement of law to the effect that no order for suspension of exhibition of the film should be passed without hearing Producer or without giving an opportunity to the party affected to express his views in the matter before passing of the order of suspension. Even if the film would have been telecast on 20th August, 1995, or its exhibition commenced from that date as advertised there would have been no legal bar to suspend the exhibition of the film by the Revisional Authority for a valid cause by a valid order after complying with the principles of natural justice. In all such matters, normally a speaking order should be passed by the revisional authority. In this case, the impugned order dated 17th August, 1995 was passed in view of threats given by the Nurses Union to stage Dharna or to go on strike as obvious from paragraphs 12 of the affidavit in reply of Shri Raghu Menon and not because of formation of a prima facie opinion on merits of the film. The Central Government should have addressed itself to the question as to whether the opinion of the Board of Film Certification and the revising committee examining the film and approving the same was perverse. Having regard to admitted facts and circumstances of the case, the impugned order is liable to be treated as violative of principles of natural justice and the principles governing exercise of discretion in relation to the passing of a serious order suspending the exhibition of the film duly certified by the Board of Film Censors after the necessary cuts were effected as recommended by the 2nd Revising Committee of the Board which Committee included seven lady members as experts on the subject of examining of the films.
21. The learned Counsel for the respondents has submitted that the respondents have acted bona fide while issuing order dated 17th August, 1995. Shri Raghu Menon did view the said film on 21st August, 1995 only. It is so stated in the order dated 21-8-1995 passed by Shri Raghu Menon, Jt. Secretary, Ministry of Information and Broadcasting on behalf of and in the name of the Central Government. A further order was passed by the Central Government on 21st August, 1995 for issue of a show cause notice to the petitioners in respect of the proposed order of the Central Board to remand the said film to the Board of Certification with a direction to cause the said film to be viewed by another Revising Committee in light of the complaints received by the Central Government. The question to be asked is as to whether the impugned order of suspension of exhibition of the said film was passed by the Central Government in accordance with law. The answer is in the negative. In my opinion, the impugned order is a nullity. This is my strong prima facie view. The Central Government can dispose of the pending Revisional Proceedings in accordance with law and pass final order after giving of reasonable opportunity to the petitioners to show cause at any stage. However, operation of the impugned order is liable to be stayed in view of the same having been found to be a nullity.
22. Rule 32(2) of the Certification rules has no bearing on interpretation of scope and ambit of section 6(2)(c) of the Act. The said rule was not even resorted to at the stage when the impugned order dated 17th August, 1995 was passed as a temporary manner. The Central Government can decide the pending revision application as it deems fit in accordance with law. Section 6(2)(c) of the Act is undoubtedly valid provided the said provision is read and applied in conformity with principles of natural justice implict in the section.
23. The learned Counsel for the Delhi Nurses Union submitted that the Court should exercise its judicial discretion in refusing to grant interim relief prayed for as the impugned film affected the honour of members of nursing profession which was and is undoubtedly a noble profession. The learned Counsel submitted that the impugned film denigrates and ridicules the nurses and depicts nurses in a manner which is highly objectionable. The learned Counsel for the intervenors submitted that the impugned order was merely an ex parte order and the same was therefore, not justiciable. Having regard to my finding that prima facie the impugned order is a nullity for the various reasons indicated in the earlier part of the order, it is not necessary to examine these contention. There is no question of permitting the Central Government to enforce or implement the impugned notification dated 17-8-1995 since the same is found to be a nullity. Let the Central Government dispose of the revisional proceedings by a speaking order after due observance of principles of natural justice. It is not possible for the Court to accept the submission made by the learned Counsel for the intervenors that the ex parte order of suspension of the film passed by the Central Government on 17th August, 1995 is not justiciable. If a strong prima facie case is made out before the Writ Court by the producer of the film to the effect that his fundamental rights guaranteed under Article 19(1)(a) of the Constitution is infringed by the State, the operation of the impugned order is liable to be stayed by the Court. It is true that the Central Government is prepared to dispose of the Revisional Application itself expeditiously. However, the Court would not be justified in rejecting the application for interim relief merely because of possibility of the main proceeding being decided by the Central Government within a short time. Nursing profession is undoubtedly a noble profession. So is the profession of medical practitioners, legal practitioners and the teachers. It cannot be disputed that the teachers occupy a place of pride in our educational system. The Hon'ble Ministers and other public functionaries are people's representatives. A film may cover wide range of subjects and situations good and bad. The characters in the film need not be ideal person preaching idealism or high principles. The characters in the film may behave in an unrealistic, ridiculous or absurd manner subject to statutory guidelines. A film may depict a theme based on subject like sex or romance depicting women characters in a bad light without offending the statutory guidelines. The contemporary standards of the Society and the modern trends cannot be altogether ignored by the Board of film certification though some of the right thinking members of the society may perhaps take a conservative view. If the film shows a teacher, a lawyer, a doctor, a nurse, so as to highlight the growing evils or likely evils of the profession or the vocation, public exhibition of the film cannot be stayed merely on the ground that some of the right thinking members of the profession or vocation concerned are objecting to the impugned film being exhibited. Nobody should be unduly sensitive. The film can be based even on imagination or fiction. In this film, the Hero Doctor is also shown as behaving in an unusual or unrealistic manner. It does not follow therefrom that the film denigrates the medical profession as such. Perhaps the same observation are applicable to the case of Nursing profession. It is not within the provision of this Court to express an opinion on merits of the film, and state as to whether the film is good or not. I do not consider the opinion expressed by the Second Revising Committee of the Board and the recommendation by it as perverse. The impugned order suffers from several legal infirmities. With all this the Court would have pauced twice and considered the application for stay in a different perspective if the judicial conscience of the Court would have been shocked on viewing of the film. This is not the situation in this case. I express no opinion on merits of the film. It is not necessary to do so for deciding this application for interim relief. I have merely formulated some of the applicable principles and the tests to be applied in a case like this.
24. The Delhi Nurses Union and its members appear to have felt hurt by looking at the advertisements in respect of the said film. By and large Nurses behave very well and not in a romantic manner in the hospital ward or at a medical clinic and do not indulge in amorous behaviour with the Doctor or the patients. The character of Nurses as depicted in the film is different from character of nurses in reality. Does it mean that the noble profession of Nurses is humiliated or disgraced by the film. I do not think so. I shall give an illustration. If a teacher is shown in the film as indulging in malpractices or behaving in an unusual manner, does it follow therefrom that the teaching profession itself is disgraced or denigrated by the Film? Perhaps - not. It all depends upon an overall effect of the film on the mind of a strong, courageous and reasonable person. In my opinion, no case is made out for denying the interim relief ought for by the petitioners. The petitioners have certainly made out a case in law for grant of appropriate interim relief as prayed for. I am not discussing the merits or demerits of the film viewed by me in detail as it is not necessary for the Court to do so for purpose of deciding this application for interim relief. Prima facie the film is not shown to the Court to be offending the statutory guidelines. Let the Central Government decide the pending Revision Application by a Speaking Order in accordance with law.
25. These are reasons for which the Court has thought it fit to grant interim relief in terms of prayer (c) of the petition as set out in operative part of this order.
26. Issue of certified copy is expedited.
Interim relief allowed.