Union Of India vs K. M. Shankarappa on 28 November, 2000

    CASE NO.:

Appeal (civil) 3106 of 1991

PETITIONER:

UNION OF INDIA

 Vs.

RESPONDENT:

K. M. SHANKARAPPA

DATE OF JUDGMENT: 28/11/2000

BENCH:

V.N. Khare & S.N. Variava.

JUDGMENT:

S. N. VARIAVA, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

    This Appeal is against a Judgment dated 2nd April, 1990 in Writ Petition No.
4335 of 1979.

    The Respondent (herein) had challenged the virus of certain provisions of
the Cinematograph Act, 1952 (hereinafter called the said Act) as amended by Act
No. 49 of 1981. In the Writ Petition the challenge was to the constitutional
validity of Sections 3(1), 4(1), 5D, 6(1) and 7(1). By the impugned Judgment
Sections 3(1), 4(1), 5D and 7(1) were held to be constitutionally valid.
However, portions of Section 6(1) have been held to be unconstitutional and
those portions have been struck down.

    It must be mentioned that, in the case of K. A. Abbas v. Union of India
reported in AIR 1971 S.C. 481, the validity of certain provisions of the said
Act had been challenged, inter alia, on the ground that an appeal from a
decision of the Board should lie to a Court or to an independent Tribunal and
not to the Central Government. The Solicitor General made a statement that the
Government would appropriately amend the Act to set up a Tribunal. This Court
commented as follows:

    "We express our satisfaction that the Central Government will cease to
perform curial functions through one of its Secretaries in this sensitive field
involving the fundamental right of speech and expression. Experts sitting as a
Tribunal and deciding matters quasi-judicially inspire more confidence than a
Secretary and therefore, it is better that the appeal should lie to a court or
Tribunal."

    It is pursuant to this statement and in keeping with the opinion expressed
by this Court that the Tribunal was established. Section 5C of the said Act now
provided for an appeal to a Tribunal. Section 5D now provided that the
Government is to constitute an Appellate Tribunal. The Tribunal is to consist of
a Chairman and not more than four other members. The Chairman of the Tribunal is
to be a person who is a retired Judge of a High Court, or a person who is
qualified to be a Judge of a High Court. The other members should be such
persons who are qualified to judge the effect of the film on the public. Thus
the Tribunal is an expert body which has been set up for the purposes of
considering, amongst other things, the effect of the films on the public.
However the Government still sought to retain powers by enacting Section 6(1).
For a better understanding of the question under consideration, it would be
appropriate to set out Section 6(1). It reads as follows:

    "6(1): Notwithstanding anything contained in this part, the Central
Government may, of its own motion, at any stage, call for the record of any
proceeding in relation to any film which is pending before, or has been decided
by, the Board, or as the case may be, decided by the Tribunal (but for including
any proceeding in respect of any matter which is pending before the Tribunal)
and after such inquiry, into the matter as it considers necessary, make such
order in relation there to as it thinks fit, and the Board shall dispose of the
matter in conformity with such order:

    Provided that no such order shall be made prejudicially affecting any person
applying for a certificate or to whom a certificate has been granted, as the
case may be, except after giving him an opportunity for representing his views
in the matter:

    Provided further that nothing in this sub- section shall require the Central
Government to disclose any fact which it considers to be against public interest
to disclose."

    Thus even after establishing the Appellate Tribunal, by means of Section
6(1), the Central Government sought to retain with it the power to make such
orders as it thought fit. In effect what the Government is seeking to do is to
exercise power of review or revision over the decisions of the Board or the
Tribunal. Mr. Goswami sought to submit that it was necessary to retain such a
power because it has been found that on certain occasions, after the film has
been cleared by the Board or by the Tribunal, there was public resentment to the
film and law and order situations arose. He submitted that such a situation
would necessitate a review and/or revision of the order passed by the Tribunal.
He submitted that under our Constitution there was no strict separation of
powers. He submitted that judicial functions could also be discharged by the
Central Government by way of conferment of revisional powers.

    We are unable to accept the submission of the learned counsel. The
Government has chosen to establish a quasi- judicial body which has been given
the powers, inter alia, to decide the effect of the film on the public. Once a
quasi-judicial body like the Appellate Tribunal, consisting of a retired Judge
of a High Court or a person qualified to be a Judge of a High Court and other
experts in the filed, gives its decision that decision would be final and
binding so far as the Executive and the Government is concerned. To permit the
Executive to review and/or revise that decision would amount to interference
with the exercise of judicial functions by a quasi-judicial Board. It would
amount to subjecting the decision of a quasi-judicial body to the scrutiny of
the Executive. Under our Constitution the position is reverse. The Executive has
to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law
which is one of the basic structures of the Constitution. The Legislature may,
in certain cases, overrule or nullify the judicial or executive decision by
enacting an appropriate legislation. However, without enacting an appropriate
legislation, the Executive or the Legislature cannot set at naught a judicial
order. The Executive cannot sit in an appeal or review or revise a judicial
order. The Appellate Tribunal consisting of experts and decides matters quasi-
judicially. A Secretary and/or Minister cannot sit in appeal or revision over
those decisions. At the highest, the Government may apply to the Tribunal itself
for a review, if circumstances so warrant. But the Government would be bound by
the ultimate decision of the Tribunal.

    We fail to understand the apprehension expressed by the learned counsel that
there may be a law and order situation. Once an Expert Body has considered the
impact of the film on the public and has cleared the film, it is no excuse to
say that there may be a law and order situation. It is for the concerned State
Government to see that the law and order is maintained. In any democratic
society there are bound to be divergent views. Merely because a small section of
the society has a different view, from that as taken by the Tribunal, and choose
to express their views by unlawful means would be no ground for the Executive to
review or revise a decision of the Tribunal. In such a case, the clear duty of
the Government is to ensure that law and order is maintained by taking
appropriate actions against persons who choose to breach the law.

    We, therefore, see no substance in the Appeal. The same stands dismissed.
There will, however, be no Order as to costs.