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CASE NO.: Appeal (civil) 3106 1991

PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: K.  M.  SHANKARAPPA

DATE OF JUDGMENT:       06/11/2000

BENCH: S.N.Variava, V.N.Krare

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       J U D G M E N T S.  N.  VARIAVA, 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

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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,

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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.