Gujarat High Court
Kirankumar Rameshbhai Devmani vs State Of Gujarat on 28 February, 2014
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/17974/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17974 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KIRANKUMAR RAMESHBHAI DEVMANI....Petitioner(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR TUSHAR HEMANI with MS VAIBHAVI PARIKH, AMICUS CURIAE
appointed by the Court.
MR CR MISHRA, ADVOCATE for the Petitioner(s)
MR JAIMIN GANDHI, AGP for the Respondent(s)
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
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C/SCA/17974/2013 JUDGMENT
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 28/02/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Looking to the controversy involved, we have heard learned counsel for the parties for final disposal of the petition.
2. As mankind progressed and modern society developed, different modes of expression developed which were hitherto unknown. Besides language being powerful medium of communication different forms of expression over a period of time developed. Therefore, term 'speech and expression', also includes words spoken or written, expressions eloquent or otherwise; expressing one's self by drawing, painting, cartooning, through music and dancing and through the medium of film making, the last one being one of the most powerful medium of expressing one's thoughts and ideas. Preamble to the Constitution declares the solemn resolve of the people of the country to secure liberty of thought, expression, belief, faith and worship. As part of fundamental rights, freedom of speech and expression occupies a very important place in the list of rights of a citizen. Such rights are guaranteed under Article 19(1)(a) of the Constitution and can be curtailed only by law providing for a reasonable restriction Page 2 of 45 C/SCA/17974/2013 JUDGMENT on one of the grounds mentioned in Article 19(2) of the Constitution. Such rights are considered sacrosanct and zealously guarded by the courts of the country.
3. The brief preamble was necessary because in this petition we are concerned with a delicate issue which needs to be handled with a degree of sensitivity. At the center of controversy is a question of tax concession the State refused to grant to a film on the ground that the film is based on a controversial subject of homosexuality. The short question is, does the State policy granting such concession to all Gujarati films barring those excepted in the policy itself would permit the authority to exercise such power in the present case?
4. We may record the facts.
4.1 This petition is filed by a filmmaker who has produced and directed a Gujarati film by the name 'Meghdhanushya' meaning, a spectrum or a rainbow. The film touches the aspects gayism. From the literature placed on record, it appears to be a film centering around a young boy who finds himself attracted by persons of his own sex.
4.2 Under a resolution dated 8.6.99, the State Government
has framed a scheme for granting 100% exemption from
payment of entertainment tax to all Gujarati colour films
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C/SCA/17974/2013 JUDGMENT
produced after 1.4.97 except those for which exceptions are carved out in the resolution itself. Such exceptions are for films depicting evil customs, blind faith, sati, dowry and such social evils and those which are against the national unity. We will take stock of the provisions contained in the said Scheme a while later.
4.3 The petitioner having made the film, applied to the State authorities for granting 100% tax exemption under the said scheme. In response to the request, the Commissioner of Entertainment Tax, State of Gujarat, conveyed to him under a communication dated April 2013 that since his film has been given 'A' certificate by the Censor Board, it does not appear appropriate to grant tax exemption. However, if the petitioner desires to make any representation, he may remain present on 29th April 2013.
4.4 At the request of the petitioner, such hearing was advanced to 24.4.2013. On 26.4.2013, the petitioner wrote to the Commissioner of Entertainment Tax that he did remain present on 24.4.2013. The Commissioner, however, did not grant audience. Many films for which applications for exemption were filed after his have been granted exemption. His application may, therefore, be considered expeditiously. He again wrote on 29.4.2013 requesting consideration of his application. On 2.5.2013, he wrote to the Chief Minister of the Page 4 of 45 C/SCA/17974/2013 JUDGMENT State and complained about the nonconsideration of his application. On 13.5.2013, he again wrote to the Commissioner of Entertainment Tax contending that in the film, he has weaved various aspects of difficulties of gay persons, such as, the way the society mocks at them and their existence being not accepted and sought to be concealed. He stated that this is a offbeat film for which demand has come from various film festivals at Canada, USA, Goa and Chennai, which will only enhance the reputation of Gujarati film industry in the world. The entire film is centered around the subject of suffering of a gay person because of ridicule by the society. The film projects his trauma and questions whether such ridicule is justified. There is not a single sexual scene in the film. It is woven around the life of Shri Manvendrasingh Gohil (a descendant of the royal family of one of the erstwhile princely State of Gujarat).
4.5 Pursuant to such letter of the petitioner, the Commissioner of Entertainment Tax conveyed his decision through letter dated 16.5.2013, sending to the petitioner transcripts of various dialogues out of which the petitioner should delete/mute highlighted dialogues and should also delete words such as, homosexual, gay and file an affidavit to that effect. The petitioner was also asked to delete English subtitles of the words to be muted. He had to file an affidavit of having taken these steps and only after such Page 5 of 45 C/SCA/17974/2013 JUDGMENT affidavit was received, his application for tax exemption would be processed further. We would take note of the portions of the film which were found objectionable by the Commissioner in the said letter at an appropriate stage.
4.6 To complete the sequence of events, we may note that on 16.5.2013, the petitioner wrote to the Commissioner that he was unable to accept the suggestion of muting/deleting the mentioned portions. The Commissioner, thereupon on 18.5.2013 passed an order rejecting the application of the petitioner for tax exemption recording that since the petitioner refused to delete objectionable portion of the film, his application is rejected.
5. The petitioner filed a revision petition before the State Government against the order of Commissioner on 27.5.2013. In such revision petition, he contended, inter alia, that in the film he has depicted the pain of a homosexual person in the society and this film would be a useful and informative film. If words or dialogues are muted as suggested, proper justice would not be done to the film and would damage the storyline. He was, therefore, unable to accept the request. In the entire film, no words or dialogues have been used which would be harmful to the society. The film is a clean film. Being a novel subject, even otherwise, the Government should encourage it by granting tax exemption.
Page 6 of 45C/SCA/17974/2013 JUDGMENT 5.1 The Deputy Secretary, Ministry of Information and
Broadcasting, partly allowed the revision petition of the petitioner by order dated 25.6.2013. He remanded the issue back to the Commissioner of Entertainment Tax to reexamine the entire aspect on following considerations:
(i) As per the resolution dated 8.6.99, the entertainment tax exemption can be denied if the film involves any of the subjects depicting evil customs, blind faith, sati, dowry and such social evils and those which are against the national unity. The Commissioner, therefore, should pass a fresh order giving the basis whether the film falls in any of these categories;
(ii) If the words and dialogues which were ordered to be muted are derogatory or objectionable, then to that extent, the issue may be reconsidered;
(iii) Only upon seeing the core of the film, if it can be stated that the film propagates certain theory or supports or promotes it, question of denying tax exemption would arise. However, if no such things emerge, exemption cannot be denied only bearing in mind the subject of the film.
(iv) Bearing in mind the above three factors, the Page 7 of 45 C/SCA/17974/2013 JUDGMENT Commissioner should reexamine the issue and take a fresh decision after affording a hearing to the petitioner.
6. The Commissioner of Entertainment Tax thereupon passed a fresh order dated 1.7.2013 which is impugned in this petition. In such order, referring to the GR dated 8.6.99, he referred to the following four factors which in his opinion were adverse to the petitioner and which were sufficient to deny exemption to the film.
(i) That the storyline of the film is on a subject which is unacceptable not only in the society in Gujarat but in the entire country and the world over. Though it cannot be stated that the storyline pertains to a social evil, however, the subject of homosexual relations is a controversial subject in the Indian society. It is a subject which the society avoids even discussing in open. The film promotes and supports homosexual relations.
(ii) The Film Censor Board has given 'A' certificate. The film cannot be watched by a family together. Though the Censor Board had directed deleting words such as, 'eunuch' or 'impotent' such words are not deleted. In the same breath, he also noted that such words were replaced by expression 'baylo" (effeminate man).
We may record that the objection that the words
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'eunuch' or 'impotent' have not been deleted though directed by the Censor Board is not factually correct, as pointed out by the counsel for the petitioner. We therefore proceed on such basis.
(iii) In one scene, reference is made to a teacher patting a girl student on her back. It was stated that that this would not be desirable in a film carrying tax exemption. At another place, it is pointed out that there is a dialogue where one person tells a woman that "how many times will you get abortion in anxiety to bear a male child". Since aborting a female fetus is an offence, suggestion was made to mute the sentence.
(iv) Intermittently in the film there are dialogues of Shri Manvendrasingh Gohil talking about his own experience which seems to be justifying homosexual mentality.
7. On the basis of such factors, the Commissioner drew following conclusions:
(i) Tax exemption is to be granted to such films which provide entertainment to viewers or carry a useful message to the society. If exemption is granted to this film, there is every possibility of creating friction between the members of the society holding diverse ideologies. This is likely to result into Page 9 of 45 C/SCA/17974/2013 JUDGMENT deterioration of law and order.
(ii) The subject of the film is controversial. No decent family can watch the film together. Granting tax exemption to such a film will send a negative signal to the society.
(iii) The core of the film is to support and promote homosexual ideology.
(iv) Even without tax exemption, the petitioner can as well exhibit the film in theaters where on the basis of its quality the viewers are always allowed to watch it.
(v) Granting tax exemption would send a message that the Government is endorsing and encouraging such ideology.
8. Being an issue of considerable importance and one which requires dealing with a degree of caution and sensitivity, we had requested learned counsel Shri Tushar Hemani to act as an amicus in the matter. He along with his colleague Ms.Vaibhavi Parikh had willingly accepted our request and assisted us after putting considerable efforts for which we are indeed thankful to them.
9. Shri Hemani contended that the Government policy framed under resolution dated 8.6.99 is to grant tax exemption Page 10 of 45 C/SCA/17974/2013 JUDGMENT to all Gujarati films made after 1.4.97 except those mentioned in para 4 of the said resolution. The present film does not fall in any of the exceptions. The decision of the Commissioner was, therefore, erroneous.
Citing Article 14 of the Constitution, he contended that granting tax exemption for other films similarly situated and denying it to this film would amount to hostile discrimination. Unless the film falls in any of the categories for which exceptions are recognized in the resolution itself, denying tax exemption would amount to violation of equal treatment. Referring to the decision of Budhen Choudhry v. State of Bihar, AIR 1955 SC 191, he contended that in order to justify the classification in reference to Article 14 of the Constitution, the State must demonstrate that the classification is reasonable in the sense that it distinguishes persons or things from those left out of the group and that classification has a rational nexus to the object sought to be achieved.
He referred to a decision of the Supreme Court in the case of Bajaj Tempo Ltd. v. CIT, 196 ITR 188 in which it was held that an incentive scheme which is framed for the growth and development of the industry must be liberally construed.
Counsel also placed reliance on Article 19(1)(a) of the Page 11 of 45 C/SCA/17974/2013 JUDGMENT Constitution to contend that denying tax exemption would amount to serious restriction on the petitioner's right to freedom of speech and expression. He contended that not only the instance of excessive or discriminatory tax collection, but also the instance of denial of tax exemption would infringe the right of freedom of speech and expression. In this context, he relied on certain decisions, reference to which would be made at an appropriate stage.
10. We also heard Mr.C.R.Mishra for the petitioner.
11. On the other hand, learned AGP Shri Gandhi vehemently opposed the petition raising following contentions:
(1) The film was based on a highly controversial subject.
(2) It promotes an activity which is held to be an offence punishable under section 377 of the Indian Penal Code, which is also a social evil. Reference was made in this respect to a decision of the Supreme Court in the case of Suresh Kumar Koushal v. NAZ Foundation, AIR 2014 SC 563.
(3) He also contended that homosexuality is against the order of nature and increases the incidents of AIDS in cases of persons indulging in such sexual practices. He relied upon certain researches in this respect.Page 12 of 45
C/SCA/17974/2013 JUDGMENT (4) Promoting and exhibiting this film is likely to cause law and order problem.
(5) Strangely, he also argued that the film will be a threat to the national unity! (6) He contended that the Commissioner had wide discretion to grant or refuse the exemption. He having passed a speaking order giving proper reasons, Court should not interfere with exercise of such discretionary powers.
(7) In addition to the decision of the Supreme Court in the case of Naz Foundation (supra), he referred to several decisions of various courts on the interpretation of section 377 of the Indian Penal Code.
11. Before dealing with the contentions, we may refer to in detail the Government policy for granting tax exemption as well as the objectionable portions of the film, as pointed out by the Commissioner of Entertainment Tax.
12. The policy of granting 100% tax exemption from payment of entertainment tax for Gujarati colour films was promulgated under resolution dated 8.6.99. Preamble to the said resolution records that with a view to making Page 13 of 45 C/SCA/17974/2013 JUDGMENT Gujarati films of high quality and good storyline, the Government has framed a policy of granting 100% exemption from payment of entertainment tax. By consolidating different resolutions and framing a fresh policy, therefore, it was resolved to implement a new tax exemption scheme. Para 1 thereof provides that there shall be 100% tax exemption to all Gujarati colour films made after 1.4.97. Para 2 and 3 pertain to the procedure for applying for such tax exemption. Para 4 which is of paramount importance for us, provides for exclusion from such tax exemption policy and reads as under:
"4. Gujarati multi coloured films depicting evil customs, blind faith, sati, dowry and such social evils and those which are against the national unity shall not be granted tax exemption."
13. We may now advert to the portion of the film found objectionable by the Commissioner of Entertainment Tax, majority thereof pertains to dialogues by Shri Manvendrasingh Gohil. When translated they read as under:
"Namaskar, I am Manavendrasingh Gohil. Homosexuality is very normal and natural thing. As is seen in case of heterosexuality that one heterosexual man or woman has an attraction towards the Page 14 of 45 C/SCA/17974/2013 JUDGMENT opposite sex, likewise a homosexual man or woman will have attraction towards the same sex/gender. Large number of people in the society have misconception towards homosexuality. One of the biggest misconceptions of those people is when they think that most gay men are effeminate; their behaviour is feminine, which is wrong. Another misconception is that homosexuality is linked to eunuchs, which is a completely wrong notion. Therefore, I need to give a message to the society that we be accepted as we are. Attempt be made to understand our issues.
The way we accept and respect other people of the society, we should be respected likewise without any discriminatory attitude, justice be given to us in understanding us. This is the only expectation from the society. It is my belief that the class which is not homosexual in the society if supports and accepts us, the same shall be an excellent example of the main streaming. I belong to a royal family who has pronounced that I am a homosexual. On the 14th March, 2006, such declaration was printed in the newspaper which caused tremors not only in the state of Gujarat but also in the entire country. I also need to clear the wrong notions of the society that the homosexual persons hail from either lower class or middle class of the society. I need to come out as a living example and tell that I am a (homosexual) gay person and I am proud to state that much controversy was raised on my homosexuality but I have a deep trust in what Gandhiji used to say "Satyamev Jayate" that truth alone wins in the end. Whatever we do, we need to be truthful and honest to ourselves and I am of the opinion that the class of Page 15 of 45 C/SCA/17974/2013 JUDGMENT society which is not gay/homosexual if supports us, it would become a very good example of main streaming."
xxxxx xxxxx Friends, in whose life challenges/struggles are not experienced, but every struggle/challenge when ends in doing good to oneself, for others and for the society, we need to do that. The same must be undertaken with positive thinking. Despite my belonging to the princely background, when I came out as a homosexual/gay person, I had to face various challenges. My own family attempted to deny me not only my property rights but also from the very family by giving a public notice and because of misconceptions, one needed to undergo many sufferings and yet, in the end, I have won. It can be said that those who outcast me and boycotted me have eventually started accepting me because I continued to adhere to my truthfulness and honesty. Those in the society who had phobia towards homosexuality and who had resisted this concept, I chose not to turn away from them. But, by being with them, I communicated to them that like them, I am also a human being, having similar feelings as they have and I am no different. No offence is committed by being a gay person. On the contrary, I feel proud that I am a homosexual, a gay and have come out in the public with a feeling that I am doing a task useful for the society. I believe and I am of the opinion that those of you who are homosexuals must not have guilty conscience that you are doing anything wrong. What you feel is something Page 16 of 45 C/SCA/17974/2013 JUDGMENT normal and is a natural aspect. A man having attraction towards a man and a woman to feel that for a woman, is absolutely normal and natural. Science also proves that it is not a mental disease, then one need not get deterred. We must accept ourselves as we are and benefit always lies in acceptance. If you accept yourself as a homosexual and once one accepts oneself, you may act fearlessly in the society. One must feel pride for what one is and in that circumstance, I am of the opinion that life would be much better.
I can give my own example that after having revealed myself in the public, I feel immense relief and at ease with myself. Before such pronouncement, I lived a life of untruth (hypocrisy). I lived with double standards and I needed to speak a lie (untruth). However, now I am living a life of a transparent person. I live in a glass house. The whole world knows that I am a gay person but I have no difficulty at all. Contrarily, I live a happy and peaceful life presently." (underline supplied by us).
The other dialogues pointed out as objectionable are primarily between three characters of the film, a young boy named, Tanmay, his father Raghu and his wife (Tanmay's mother). It is not necessary to reproduce the entire dialogues, suffice it to record that they pertain to the confusion of a young boy who suddenly finds out that his sexual preference is not normal and he may be attracted by persons of his own sex. The film seems to be depicting the Page 17 of 45 C/SCA/17974/2013 JUDGMENT trauma, the confusion, and the deep pain that the boy himself is experiencing along side the total devastation of his parents. The father reacts rather violently. Mother tries to calm him down but is unable herself to fully come to terms with the reality. The film also refers to a boy Vikas who committed suicide because of the trauma and humiliation that he faced in the society because of his personal preference.
The mental state of Tanmay comes out in a chain of thoughts expressed in the the form of a poem recited by voice over. When translated, it reads thus:
Events often leave deep impressions thorns meant to protect the flowers often end up piercing them game is such where there are no competitors no winners nor losers I am running to catch myself all alone silent, but surrounded by noises Wish to run somewhere far away I am scattered, torn from my own self do not remember when I had last laughed forgotten beautiful songs of life I am the center of a clock whose hands are moving, the time is passing by Page 18 of 45 C/SCA/17974/2013 JUDGMENT I am stuck static in the circumstances Heart is beating rhythmatically searching for a melody Suddenly the mood of the season changed, in my destiny in the world of my dreams suddenly I felt .......
In dialogues between father, mother and son Tanmay, the films projects the confusion of the family as a unit. Tanmay is not prepared to enter into a marriage. His father is livid. His mother trying to broker peace persuades him, at least, to meet the girl. Tanmay, informs her that he has no problem with meeting the girl, but would certainly not spoil her life. Father at this point bursts out. He wished Tanmay was never born. In yet another scene, Tanmay is talking to one girl Asmita whom perhaps he was forced to meet as the prospective bride and confesses to her that he cannot marry her because he is a gay. Asmita appreciates his honesty.
14. With this background, we may refer to the documents on record. We may recall that the Government policy is to give 100% tax exemption to all Gujarati colour films made after 1.7.1997 except those which fall in the categories mentioned in para 4 of the said G.R. Though the purpose behind this policy stated in the preamble to the G.R. is to encourage making of high quality Gujarati films with good story line, it can also be seen that granting such Page 19 of 45 C/SCA/17974/2013 JUDGMENT exemption en masse to all Gujarati films barring those which fall in a limited area of subjects would manifest a Governmental policy of seeking to sustain Gujarati films by such tax exemption failing which it would be difficult for the local films to compete against mega Hindi film industry. The crux of the policy is thus to exempt all Gujarati colour films except those which fall in para 4 of the G.R. Exemption is thus a rule. Denial of exemption is an exception. This is not a case where tax exemption is to be granted to a limited class of films falling in defined categories of films seeking to achieve some special objective such as communal harmony, national integration or the likes. We would, therefore, have to ascertain whether the film falls in any of those exceptions.
15. We may recall that at first the initial hesitation of the Commissioner of Entertainment Tax in granting exemption was that the film had received 'A' certificate. That is how he issued the first notice calling upon the petitioner why on such ground exemption should not be refused. This ground was neither germane nor flowing from the Government policy. Merely because a film is certified by the Censor Board for being viewed by audience not below the age of 18 years, would not mean that it falls in any of the categories mentioned in para 4. The Commissioner thus laboured under a complete misconception in this regard. Wisely and rightly, therefore, he quickly dropped this objection.
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16. In his subsequent communication dated 16.5.2013, he changed the stand and agreed to consider the application for exemption provided the petitioner drops certain dialogues and mutes certain "objectionable" words. We have noted bulk of these dialogues primarily by Shri Manvendrasingh Gohil. The objectionable words, according to him, were 'gay' and 'homosexual'.
17. The petitioner was not ready to relent. According to him, these dialogues were not objectionable. If forced to be dropped, it would mutilate the storyline. The Commissioner, thereupon, passed his first order rejecting the application on 18.5.2013 on the simple ground that since the petitioner had declined to remove such dialogues and words, it was not possible to grant exemption. The Revisional Authority, however, adopted a far more pragmatic and, in our opinion, correct approach. He desired that the Commissioner should examine the film not dialogue by dialogue but as a whole. If the core of the film is seen and then if it is found that it falls in any of the excepted categories, he requested that the Commissioner to pass such an order after examining such details. It was in the second round of consideration that the Commissioner passed a detailed speaking order and rejected the request of the petitioner for tax exemption for the reasons noted earlier.
Page 21 of 45C/SCA/17974/2013 JUDGMENT 18. To our mind, none of the grounds pressed in service by the Commissioner and the conclusions based on
such grounds are sufficient to deny tax exemption to the film. We may recall, the grounds of exceptions are, that the film is based on evil customs, blind faith, sati, dowry and such other social evils or is against the national unity.
19. To suggest that the subject of the film is controversial, and therefore would fall in any of the categories is simply not correct. The Commissioner committed a serious error in confusing an objectionable film from a controversial subject. If a film falls in any of the categories of exceptions, it would be a different matter altogether. But merely because the subject of the film is thought provoking, forces the viewer to come out of the comfort zone and face the subject which is often sought to be swept under the carpet would not mean that the film is either controversial or objectionable. To suggest that since the film has received 'A' certificate, it cannot be watched by an entire family together is again a ground wholly impermissible for rejecting the application for tax exemption. To certify a film either 'U' or 'A' is the task of the Censor Board. There would be variety of reasons why a film would be certified as 'A', meaning thereby, it is fit for being viewed by audience not below the age of 18 years. That by itself would neither mean that the film is objectionable or that Page 22 of 45 C/SCA/17974/2013 JUDGMENT it falls in any of the categories mentioned above. Certification by the Censor Board has nothing to do with the exceptions carved out in the Government Resolution. In fact, there may be cases where even a film which is not so certified as 'A' by the Censor Board may still fall in the excepted category and may therefore be validly denied tax exemption. The fact that the subject is such which cannot and would not be viewed together by the members of the family of different age groups and generations is also not a ground on which the Government policy envisages rejecting request for tax exemption. If out of respect or restrain; or inhibition or shyness members of a family of different age groups do not prefer to watch a film of this kind together, would it mean that the film is objectionable? We have already noted that the offending words of 'eunuch' and 'impotent' have already been deleted at the instance of the Censor Board.
20. In a film if there is a dialogue suggesting that a teacher, a respected person, has a habit of patting girl students on their back or that a character admonishes a woman for getting abortion in her desire to bear a male child, we do not see how the film falls in the excepted category. Mere mention of a teacher's habit, even if undesirable does not make the film objectionable. The film does not even remotely support or promote such tendency. In fact, the reference to abortion is in no way encouraging but seems to be Page 23 of 45 C/SCA/17974/2013 JUDGMENT discouraging the person.
21. The dialogues by Shri Manvendrasingh Gohil must be seen as a whole. One sentence or an utterance cannot be picked in isolation to project that he is either encouraging or propagating gayism. The entire undertone is his attempt to come to terms with a preference which is not considered normal and at best of the times looked down upon by the society. He seems to be suggesting that the person with such a preference must have the courage to accept it and come out in the open and at the same time the society must accept such a person as he is, without passing value judgments. In essence he, therefore, asserts right of a gay person to lead life with human dignity. Even a person with homosexual preference as human being has right to life and liberty guaranteed under Article 21 of the Constitution. Such right to life and liberty includes right to live life with dignity.
22. The conclusions based on such observations by the Commissioner are equally fallacious. To suggest that if such film is allowed to be shown, it will create friction between different sections of the society and could create law and order issue is totally misplaced. Firstly, law and order is the task of the State and a person's right to speech and freedom of expression unless it falls in any of the reasonable restrictions imposed in law as envisaged in Article 19(2) of the Page 24 of 45 C/SCA/17974/2013 JUDGMENT Constitution cannot be jettisoned on the ground of remote possibility of law and order situation. It was so emphatically held by the Supreme Court in the case of S.Rangarajan v. P.Jagjivan Ram, (1989) 2 SCC 574. It was observed as under:
"45. The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg".
Secondly, there is no prohibition against exhibiting this film. In any case, the Commissioner of Entertainment Tax was not controlling exhibition of the film in different cinema halls in the State or outside. He was only called upon to judge whether the film should receive tax concession or not. Even without tax concession, the producer could as well have exhibited the film in different cinema halls. His conclusion that the film will lead to friction is not based on any material. He has not referred to any data to establish this conclusion.
Page 25 of 45C/SCA/17974/2013 JUDGMENT Further, his task was to decide application for tax exemption and the question of law and order was not within his purview. Neither Home Department nor the police authorities seem to have suggested to him that they will not be able to manage law and order situation if the film is granted tax exemption.
23. Once again, the ground that the subject of the film being controversial and one which members of the family cannot sit together and watch and therefore if exemption is granted it would send a negative signal to the society is an observation based on personal opinion of the authority. As a Government authority, the Commissioner is expected to implement the Government policy dissociating himself from his personal views on the subject. There is nothing in the policy to suggest that if a film has received 'A' certificate, tax exemption cannot be granted. Whether a film can be viewed with all members of the family depends on number of factors. It is based on perceptions and such perceptions are not static. The perceptions may change from time to time, from era to era, from family to family and from region to region. Merely because in some cases the society is still not prepared to watch such a film in presence of people of different generations or age groups, would by itself not mean that it relates to any of the exceptions mentioned in the Government policy.
24. The third conclusion that the aim of the film is to Page 26 of 45 C/SCA/17974/2013 JUDGMENT support and promote gay ideology and it would be improper and unacceptable if people watch such film and adopt such ideology, once again, in our opinion, is manifestation of his personal beliefs. To begin with, the dialogues and conversations, which are the basis of the objections of the Commissioner nowhere suggest that the aim of the film is to support and promote gay ideology. From what we gather from such dialogues, the voice over of Shri Manvendrasingh Gohil and the conversation between Tanmay and his family members, it simply presents a story line which represents a different point of view. In the constitutional scheme of things that we have adopted in our country, plurality of ideologies and different view points are accepted and respected. In a topic as one on hand, there are bound to be as many view points to wit as are colours in a rainbow. No single view point may be fully correct or fully incorrect and yet all of them can peacefully coexist.
25. The argument that in any case, it is open for the petitioner to exhibit the film even without tax exemption and that therefore such exemption should be denied is begging the question. The issue is not whether with or without exemption the petitioner can exhibit the film. The issue is, can he be denied such exemption which flows from a Government policy?
Page 27 of 45C/SCA/17974/2013 JUDGMENT 26. Once again, the last conclusion of the
Commissioner that if exemption is granted to a film like this, it would imply that the Government is encouraging such ideology is wholly fallacious. Surely there are dozens of Gujarati films made every year. Many of such films would receive tax exemption as per the Government policy. Can it be stated that the Government shares or encourages the policy emerging from every such film? In our opinion, the Commissioner confuses the issue between granting tax exemption and supporting certain ideology by the Government. The Government's tax exemption has a single line ideology to encourage making of good Gujarati films without which it would be difficult to sustain the Gujarat film industry. Mind well, the policy of the Government is not that it grants exemption only to such films which bring an element of social good, such as communal harmony, national integrity or the likes. It provides for tax exemption to all Gujarati colour films except a small category of them, which fall in the exception clause. The Government does not in any manner, identify with any theme, subject, storyline of any film to which such exemption is being granted. It may be purely an entertainment film and may have no social angle whatsoever and may have been made purely for commercial reasons. The policy still envisages tax exemption simply because it happens to be a Gujarati colour film made after 1.4.97. There is absolutely no element of Government supporting or Page 28 of 45 C/SCA/17974/2013 JUDGMENT opposing certain policy propagated in such film. The Government would be a neutral byestander having no policy of its own, it would only actively discourage such films which fall in the exception clause.
27. To suggest that the topic of gay youth going through all the confusions and dilemmas on his discovery of a rare unusual side of his personality is one of the exceptions is simply not possible to accept. The subjects referred to in para of the G.R. are:
(i) Evil custom: To fall in this category, a practice has to be first categorized as a custom. Concept of customary practices and recognition of customs as a source of law particularly of personal laws is well recognized. Law also recognizes that howsoever ancient a usage may be, if such a custom is immoral or opposed to public policy, it will neither be recognized nor enforceable. A custom or usage which is immoral or evil for the society or which is opposed to public policy and which is therefore often times outlawed would be an evil custom.
Child marriage, where a small toddler is forced to enter into marriage without having the slightest idea of what is happening to his or her life is one such custom. The evil of dowry demand, by which the father of the bride would pay through his nose for the rest of his life fulfilling the illegitimate demands of the husband of his daughter is also one Page 29 of 45 C/SCA/17974/2013 JUDGMENT such custom. Sati Pratha where a woman is forced to burn herself with the dead body of her husband is yet another example of such kind. Certainly, homosexuality is not the society's custom. Whether it is evil or not is a question we need not go into. We are conscious that it is an offence and we leave it at that.
(ii) Blind faith.
(iii) Dowry system and
(iv) Sati are special categories and are obviously not covered in the topic of this film.
(v) National unity: It is certainly not an issue against the national unity. Though it is so suggested in the affidavit in reply, we fail to see how.
28. In the impugned order the Commissioner has not specified in which category of exception the film falls. He has raised various general objections which do not fall in any of the exceptions. He has thus not even followed the directions issued by the Government in the revisional order.
29. The Government notification dated 8.6.99 grants tax exemption to all Gujarati colour films made after 1.4.97 barring those specified in para 4. To deny tax exemption, therefore, to a Gujarati colour film which does not fall in the Page 30 of 45 C/SCA/17974/2013 JUDGMENT said category would be hostile discrimination violative of Article 14 of the Constitution. When all other Gujarati films of various kinds receive full exemption from payment of entertainment tax and whose tickets therefore would be that much cheaper, to subject the present film to compete with such films at a much higher ticket rate (inclusive of entertainment tax) would be unfair competition. The matter may be looked from a deeper angle. As we stated in the beginning of the judgment, right to express oneself is a fundamental right and is zealously guarded by the courts. With passage of time, mankind has developed various means of expressing itself. The need to innovate, create and communicate drives the human beings to find more and more effective and artistic ways of expressing oneself. These forms of expression are not confined to spoken or written words. Drawing, painting, film making, drama, theatre, music, cartoon, demonstration and sometimes silence are all media of expression which would be covered and therefore guarded under Article 19(1)(a) of the Constitution guaranteeing freedom of speech and expression to every citizen of the country. Such right of course is subject to reasonable restriction imposed by law in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence.
Page 31 of 45C/SCA/17974/2013 JUDGMENT
30. In the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597, the Apex Court in the context of reasonable restrictions that may be imposed under Article 21 to the right to life and liberty by law held that the procedure contemplated by Article 21 must answer the question of reasonableness in order to be in conformity with Article 14 . It must be right and just and fair and not arbitrary, fanciful or oppressive, otherwise, it should be no procedure at all and the requirement of Article 21 would not be satisfied.
31. In the case of Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166, a Constitution Bench of the Supreme Court held that even a Government servant has a right to freedom of speech and expression and would include making of demonstration which is a visible manifestation of the feelings or sentiments of an individual or a group. It was held that such demonstration as long as they are peaceful and orderly would fall within the freedom guaranteed under Article 19(1)(a) and 19(1)(b) of the Constitution.
32. In the case of Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305, the Supreme Court held that right to freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinions and views with complete freedom and by resorting to any available means of publication, subject to such restrictions as could be legitimately Page 32 of 45 C/SCA/17974/2013 JUDGMENT imposed under clause (2) of Article 19. It was observed that the Constitution does not expressly provide for the freedom of press but this freedom is included in freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.
33. In the case of Odyssey Communications Pvt. Ltd. vs. Lokvidayan Sanghatana, AIR 1988 SC 1642, the Apex Court observed that the right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19(1)(a) of the Constitution which can be curtailed only under circumstances which are set out in clause (2) of Article 19 of the Constitution. It was observed that right is similar to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisement hoardings etc. subject to the terms and conditions of the owners of the media.
34. In the case of B.C. & Co. v. Union of India, AIR 1973 SC 106, the Court observed as under:
"34. Publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the conditions of labour, price of material, availability of advertisements, size of paper and the different Page 33 of 45 C/SCA/17974/2013 JUDGMENT kinds of news comments and views and advertisements which are to be published and circulated. The law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by Article 19 (2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Papers case, (1962) 3 SCR 842 = (AIR 1962 SC
305) (supra) to be the direct consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19 (1) (a) on the aspects of propagation, publication and circulation."
35. In the case of Express Newspaper Ltd v. Union of India, AIR 1958 SC 578, a Constitution Bench of the Supreme Court in the context of press censorship and the law as it developed in the United States observed that the freedom of press rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. The Court further observed as under:
"143. This is the concept of the freedom of speech and expression as it obtains in the United States of America and the necessary corollary thereof is that no measure can be enacted which would have the effect of imposing a pre censorship curtailing the circulation or restricting the choice of employment or unemployment in the editorial force. Such Page 34 of 45 C/SCA/17974/2013 JUDGMENT a measure would certainly tend to infringe the freedom of speech and expression and would therefore be liable to be struck down as unconstitutional.
The Court noted with approval observations of Hon'ble Fazal Ali, J. in his dissenting judgment in case of Brij Bhushan v. State of Delhi, AIR 1950 SC 129, that it must be recognized that freedom of speech and expression is one of the most valuable rights guaranteed to the citizen by the Constitution and should be jealously guarded by the Court. It must also be recognized that free political discussion is essential for the proper functioning of a democratic government and the tendency of the modern jurists is to deprecate censorship though they all agree that liberty of the press is not to be confused with its licentiousness.
36. In the case of Central Board of Film Certification v. Yadavalaya Films, (2007) 2 MLJ 604, a Division Bench of the Madras High Court observed as under:
"12. Freedom of expression and speech has been recognized as one of the preeminent rights in a democratic government, the touchstone of individual liberty. Justice Cardozo of the US Supreme Court characterized it as " the matrix of the indispensable condition of nearly every other form of freedom". Article 19(1)(a) of the Constitution of India guarantees to every citizen the fundamental right to the freedom of speech and expression. Films have always been regarded as constituting a powerful medium of expression. In S.Rangarajan v. P.Jagjivan Ram, the Supreme Court held that movie is the legitimate and the most important medium Page 35 of 45 C/SCA/17974/2013 JUDGMENT in which issues of general concern can be treated. The producer may project his own message which the others may not approve of. But, he has a right to 'think out' and put the counter appeals to reason. It is a part of a democratic give andtake to which no one could complain. The State cannot prevent open discussion and open expression, however, hateful to its policies. While dealing with the role of the courts in striking a balance between the interest of freedom of expression and social interest, the Court observed:
"45. The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Page 0021 Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a 'spark in a power keg'."
xxxx xxxx
18. The film "Kutra Pathirikai" is an intermingling of fact and fiction. The former being the events leading to the assassination of the late Prime Minister Rajiv Gandhi, the assassination itself and its aftermath. The producer has attempted to place before the public the true account of what has passed into history. He has done no more and no less than what has already been done by different organs of the media, national and international. The producer tells his Page 36 of 45 C/SCA/17974/2013 JUDGMENT audience without embellishment what in a democracy is the right of the audience and the general public viz., the right to be informed and the right to know, which are vital in a democratic set up. Each and every piece of evidence depicted in this film is a matter of public record and public knowledge. The overall impression that this film would create in a normal and average mind would be a revulsion and abhorrence of the assassination coupled with the resolve that history such as this shall not repeat itself. The fact that film depicts the assassination of former Prime Minister by itself cannot and should not be a ground for rejection, more so, when the entire investigation and the trial of the case if over. The protection of the Constitution does not extend only to fictional depictions of artistic themes. Artists, film makers and play writers are affirmatively entitled to allude to incidents which have taken place and to present a version of those Page 0024 incidents which according to them represents a balanced portrayal of social reality. The choice is entirely of the film maker. Critical appraisal is the cornerstone of democracy and the power of the film as a medium of expression lies in its ability to contribute to the appraisal.
19. The objection of the Board that the film supports the banned organization is completely baseless and imaginary. On the other hand, the film clearly depicts the cruel and inhuman behaviour of the activists of the banned organization. It also shows that the assassination of Rajiv Gandhi is approved by none. Further, the film gives a clear and unambiguous message that terrorism does not pay, that the arms of law and order machinery are too strong and that those who kill have ultimately to meet with death. There has been shown nothing in the film from which it could be inferred that the LTTE has been glorified or attracts the sympathy of the public."
37. In the case of Director General, Directorate General of Doordarshan & Ors. v. Anand Patwardhan, AIR 2006 SC 3346, the Supreme Court considered the objection of the Page 37 of 45 C/SCA/17974/2013 JUDGMENT Doordarshan to telecast a documentary film titled 'Father, Son and Holy War'. The documentary film pertained to religious violence concerning the incident of sati in Deorala village in Rajasthan State concerning a widowed lady Roop Kanvar. One of the grounds for not telecasting the film was that it would create law and order problems. The Supreme Court in this context observed that the correct approach to be taken in such a case is to look at the documentary film as a whole and not in bits as any message that is purported to be conveyed by way of film cannot be conveyed just by watching certain bits of the film. The Court further observed that "the freedom of expression, which is legitimate and constitutionally protected cannot be held to ransom on a mere fall of a hat". It was further observed that the Doordarshan being a State controlled agency funded by public funds could not be denied access to screen the respondent's documentary except on specified valid grounds. It was further observed that "in our view, the Doordarshan being a national channel control airwaves which are public property. The right of the people to be informed calls for channelizing and streamlining Doordarshan's control over the national telecast media vehicle".
38. In the case of Sahara India Real Estate Corpn. Ltd v. SEBI, (2012) 10 SCC 603, Constitution Bench of the Supreme Court considered the question of putting limitation on printing Page 38 of 45 C/SCA/17974/2013 JUDGMENT and electronic media in publishing reports of ongoing court cases. The Court balanced the right of freedom of speech and expression on one hand and right of accused in a criminal trial to privacy and confidentiality and avoidance of media gaze. Even while recognizing the pitfalls of overexposure to coverage of court proceedings in sensational cases, the Court refused to lay down general restrictions on such publication and held that what is offending publication has to be decided on case to case basis which would require the Court in each case to see the content and context of offending publication.
39. From the above, it can be seen that right to freedom of speech and expression guaranteed under Article 19(1) of the Constitution is zealously guarded by the constitutional courts. A film is considered a powerful tool for expressing one's ideas and thoughts. Any restriction on such right if not authorized under clause (2) of Article 19 must be struck down. If we accept this proposition that the petitioner has right to freedom of speech and expression through making and exhibiting a film on a topic of his choice, any restriction on such right must be reasonable and backed by authority of law for the grounds stated in Article 19(2) of the Constitution. In the case of Virajlal Manilal and Co. v. State of M.P., (1969) 2 SCC 248, the Apex Court observed as under:
"....... It is well recognized that when an enactment is found Page 39 of 45 C/SCA/17974/2013 JUDGMENT to infringe any of the fundamental rights guaranteed under Article 19(1), it must be held to be invalid unless those who support it can bring it under the protective provisions of Clause 5 or Clause 6 of that Article. To do so the burden is on those who seek that protection and not on the citizen to show that the restrictive enactment is invalid (Cf. Saghir Ahmed v. The State of U.P. and Khyerbari Tea Co. Ltd v. The State of Assam).
One may argue in the present case that exhibition of the film is not prohibited and only tax concession is denied. Even this will seriously restrict the petitioner's right to freedom of expression. When all other Gujarati colour films barring small exceptions noted above are being granted tax exemption, insisting the petitioner to exhibit his film in the market after paying full entertainment tax would severely restrict the audience of the film. This would be a serious affront on the petitioner's right to freedom of speech and expression. Unreasonable or excessive tax on media is considered one of the facets of denying the rights under Article 19(1) of the Constitution as held by the Supreme Court in the case of Indian Express Newspapers (Bombay) P. Ltd. v. Union of India, AIR 1986 SC 515. In the said case, the Court was considering the challenge to a notification issued by the Central Government under section 25(1) of the Customs Act withdrawing certain exemptions to import of newsprint used for publication of newspapers. The Court observed that freedom of press means freedom from interference from authority which would have the effect of interference with the Page 40 of 45 C/SCA/17974/2013 JUDGMENT content and circulation of newspapers. Withdrawal of the tax exemption was struck down further observing that :
"84. If any duty is levied on newsprint by Government, it necessarily has to be passed on to the purchasers of newspapers unless the industry is able to absorb it. In order to pass on the duty to the consumer the price of newspapers has to be increased. Such increase naturally affects the circulation of newspapers adversely."
Even withdrawing of tax concession illegally or unauthorizedly which would restrict or infringe the freedom of expression can be considered as a facet of denying fundamental right guaranteed under Article 19(1)(a) of the Constitution.
40. Endorsing one's right of expression does not imply endorsement of his view point. In any vibrant modern democratic society, divergent view points is not only inevitable but is considered as a healthy sign. Diverse and antagonistic view points can coexist and survive side by side peacefully in a modern cultured society.
41. Just as we painstakingly elaborated that granting tax exemption to a film of this nature or for that matter any other film by the Government does not imply endorsing a view point carried in such a film, do we need to clarify that accepting the petitioner's request for tax exemption is not in any manner indicative of our personal views and beliefs on Page 41 of 45 C/SCA/17974/2013 JUDGMENT the topic? As a court of law, we have no personal views and beliefs. Our only personal view is to uphold the rule of law and in that context, we are emphatic and clear that the order passed by the Commissioner woefully falls short of the requirement of a just and reasonable approach in tending to a request for tax exemption within the framework of the Government policy. We are conscious that act of unnatural sex is an offence under section 377 of the Indian Penal Code. The constitutionality thereof has been upheld by the Supreme Court in the case of Suresh Kumar Koushal v. NAZ Foundation,(supra). A minute perusal of the said judgment, however, would reveal that the entire focus of the Court was on the principle of presumption of constitutionality of a statute framed by the Parliament and the State Legislatures and the limited grounds on which a court of law would be permitted to strike down such laws as unconstitutional. In the concluding portion of the judgment the court observed as under:
"56. While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of section 377, IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting section 377, IPC from the statute book or amend the same as per the suggestion made by the Attorney General."
42. It can thus be seen that the crux of the said Page 42 of 45 C/SCA/17974/2013 JUDGMENT judgment is that as long as the law framed is within the competence of the Parliament or the State Legislature, as the case may be, and is not opposed to any of the fundamental rights or other provisions of the Constitution, the court would not annul the law declaring it as unconstitutional. Constitutionality of such provision has, however, nothing to do with the subject matter which we are grappling to find answer for. Section 377 of the Indian Penal Code provides for punishment for unnatural carnal intercourse which covers range of activities far beyond the act of consensual physical relations between two members of the same sex. For the same reason we do not find it necessary to refer to number of judgments cited by the learned AGP of various High Courts in the context of interpretation of section 377 of the Indian Penal Code. Learned AGP had also stressed on the higher susceptibility of such persons (gays and homosexuals) to HIV/AIDS viruses. In this context, he had relied on an affidavit filed by National Aids Control Organisation (NACO) before the Delhi High Court in the case of Naz Foundation v. Government of NCT of Delhi, 2010 Cri. L.J. 94. From such affidavit and discussion contained in the judgment of the Delhi High Court, it can be gathered that nearly 8% of the population of MSM (Men having Sex with Men) is infected with HIV while such occurrence in general population is estimated to be less than 1%. According to the learned AGP, this demonstrated that practice of same gender sex leads to Page 43 of 45 C/SCA/17974/2013 JUDGMENT attracting HIV/AIDS. According to NACO's own stand before the Delhi High Court those in high risk group are mostly reluctant to reveal same sex behaviour due to the fear of law enforcement agencies, keeping a large section invisible and unreachable and thereby pushing the cases of infection underground making it very difficult for the public health workers to even access them. In this judgment, however, we are not dealing with the issue of susceptibility of MSM to greater possibility of attracting HIV/AIDS. In particular, when we find that the core of the film is such that it cannot be seen either supporting or promoting homosexuality, this contention of the learned AGP, in any case, loses significance.
43. We have expressed not the slightest of our personal views on the topic. We neither endorse nor deprecate the ideology. We only recognize the right of a film maker to make a film on the topic and exhibit the same as long as it does not offend the restrictions envisaged in clause (2) of Article 19 of the Constitution and to seek and insist on getting tax exemption if the film falls within the prescribed criteria laid down by the Government in its policy declaration and not be denied the same merely because the subject is controversial. The issue perhaps embarrasses some members of the society and is talked in hushed whispers, that however would not mean that it falls in the categories mentioned in para 4 of the Government policy. A controversial subject is Page 44 of 45 C/SCA/17974/2013 JUDGMENT different from a controversial film and the film being controversial and a film being objectionable are yet two different aspects. All in all, from the dialogues mentioned by the Commissioner as objectionable, we can safely conclude that the objections were wholly misguided based on fallacious premises. His role was not that of the Censor Board. His conclusions thus were erroneous.
44. In the result the petition is allowed. The respondent is directed to grant necessary tax exemption to the film in question. A certificate to this effect shall be issued latest by 31st March 2014. The petition is disposed of accordingly.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) (vjn) Page 45 of 45