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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

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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

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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.