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PETITIONER: RAMESH.S/O CHOTALAL DALAL

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT16/02/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1988 AIR  775            1988 SCR  (2)1011  1988 SCC  (1) 668        JT 1988 (1)   361

ACT:      Cinematograph Act,  1952-Sections 3, 4, 4A, 5 and 5A to 5D T.V.  Serial ’Tamas’-Screening  of-Censor Board approving exhibition of film-Unanimous approval of examining committee to be  given full  weight-Two High Court Judges saw film and approved the same-No reason to differ from conclusions.      Constitution of  India-Screening of  serial-Whether  an alleged violation of Articles 21 and 25 of the Constitution.

HEADNOTE: %      The Serial  titled "Tamas",  based on a book written by Sree Bhisham  Sahni, was  being screened on the T.V. Four of its episodes  had already  been shown  when  the  petitioner moved this  Court under Article 32 of the Constitution for a writ  of   prohibition  and   any  other   appropriate  writ restraining   its   further   screening   and   to   enforce petitioner’s fundamental rights under Articles 21 and 25 and for declaring  the screening  or televising  of  "Tamas"  as violative of section 5B of the Cinematograph Act, 1952.      Earlier, a  writ had been admitted in the High Court of Bombay and  a single  learned Judge granted interim stay. On appeal,  the  Division  Bench,  after  seeing  the  complete serial, vacated  the stay.  Special leave  petition has been filed against that judgment.      Serial ‘Tamas’ takes us to a historical past-unpleasant at times,  but revealing  and instructive.  In  those  years which ‘Tamas’  depicts, a  human tragedy  of great dimension took place  in this  sub-continent though 40 years ago-which has left a lasting damage to the Indian psyche.      ‘Tamas’  depicts   the  Hindu-Muslim   and  Sikh-Muslim tension before  the partition  of India and the killings and looting that  took place. According to the Division Bench of the High  Court, the  serial inter alia depicts how communal violence was  generated by fundamentalists and extremists in both communities,  how  innocent  persons  were  duped  into serving the  ulterior purpose  of fundamentalists,  and  how extremist ele- 1012 ments infused tension and hatred for their own ends.      The petitioner’s contentions are: (1) The exhibition of the serial  is against  public order and is likely to incite

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the people  to indulge  in the commission of offences and is therefore violative  of section  5B(1) of  the Cinematograph Act, 1952  and  destructive  of  principles  embodied  under Article 25;  (2)  Its  presentation  is  likely  to  promote feelings of  enmity,  hatred  or  ill-will  among  different religious groups  and is prejudicial to communal harmony and national integration,  and is  therefore  an  offence  under section 153A  of the Indian Penal Code; (3) Events have been depicted and  characters portrayed  in a  manner that  would provoke and  instigate people of all ages exposed to it, who will fail to grasp the message if any behind the serial; (4) Truth  in   its  naked  form  may  not  always  and  in  all circumstances be  desirable to be told or exhibited, and (5) The Judges of the High Court have viewed the film from their own point of view but the average persons in the country are not as  sober and  experienced as  the Judges  of  the  High Court.      The respondents  on the  other hand,  urge that all the appropriate authorities  have considered  the film  suitable for unrestricted  public exhibition and the only question is whether the  film has  been misjudged  or wrongly judged and allowed to  be exhibited  or serialised on a wrong approach. This  film   indubitably  depicts  violence.  That  violence between the  communities took place before the pre-partition days is a fact and it is the truth.      Dismissing the petitions, this Court, ^      HELD: (1) The Cinematograph Act itself contains several provisions to  ensure the  fulfilment of the conditions laid down in  section 5B,  and also to ensure that any film which is likely  to offend  the religious  susceptibilities of the people is not screened for public exhibition. [1021G-H]      (2) On  the aforesaid  statute, as it presently stands, the procedure  for grant  of certificate  of exhibition to a film is  quite elaborate,  and the unanimous approval by the examining committee  must be given full weight and the Court would be  slow to  interfere with  the conclusion  of a body specially constituted for this purpose. [1022C-D]      (3) The  correct approach  in  judging  the  effect  of exhibition of  a film  or of reading a book is to judge from the standards of ordinary reasonable man. [1019C-D] 1013      (4) The  two learned  Judges viewed  the film  from the point of  view of  "how the average person for whom the film is intended  will view it." They have found that the message of the  picture was  good, and  have come  to the conclusion that the  average person will learn from the mistakes of the past and  realise the  machination of the fundamentalists as the film itself shows how realisation ultimately dawns as to the futility  of violence  and hatred  and how  the inherent goodness in  human nature triumphs. In their view, those who forget history  are condemned  to repeat  it. It  is out  of tragic experience  of the  past  that  we  can  fashion  our present in  a rational  and reasonable  manner and  view our future with  wisdom and care. Awareness in proper light is a first step towards the realisation. [1022F-H]      (5) The  finding of  the Division  Bench of  the Bombay High Court  is that  the picture  viewed in its entirely, is capable of  creating a  lasting impression of the message of peace and co-existence, and that people are not likely to be obsessed, overwhelmed  or carried  away  by  the  scenes  of violence or fanaticism shown in the film. This Court sees no reason to differ from the conclusion. [1024D]      (6) It is the lesson of history that naked truth in all times will  not be  beneficial but truth in its proper light

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indicating the  evils and the consequences of those evils is instructive and that message is there in ‘Tamas’. [1023D]      (7) It is true that a writer or a preacher should cling to truth  and right,  if the  very heavens  fall. This  is a universally accepted  basis. Yet  in  practice  all  schools alike are  forced to  admit the  necessity of  a measure  of accommodation in the very interests of truth itself. [1023B]      (8) Judged  by all standards of a common man’s point of view of presenting history with a lesson in this film, these boundaries appear to have been kept in mind. [1023C-D]      (9) The Court is unable to see any alleged violation of Articles 21  and 25  of the  Constitution. The position that the petitioner  has a  right to draw attention of this Court to ensure  that the  communal atmosphere  is kept  clean and unpolluted, is  accepted. He has done well to draw attention to this danger. This Court has examined and found that there is no  such  danger  and  the  respondents  have  not  acted improperly or imprudently. [1024E-F]      Bhagwati Charan Shukla v. Provincial Government, A.I.R. 1947 1014 Nagpur 1;  K.A. Abbas  v. The  Union of  India and  Another, [1971] 2  S.C.R. 446; Ebrahim Sulaiman Sait v. M.C. Muhammad and Anr.,  [1980] 1  S.C.R. 1148  and Rajkapoor  v.  Laxman, [1980] 2 S.C.R. 512, referred to.

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Civil) No. 107 of 1988.      (Under Article 32 of the Constitution of India)      Dr. Y.S.  Chitale, Dr.  N.M. Ghatate and S.V. Deshpande for the Petitioner.      Kuldeep Singh,  Additional Solicitor  General, Soli  J. Sorabjee, Parimal  K. Shroff,  P.H. Parekh,  Sanjay Bhartari and Miss A. Subhashini for the Respondents.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI, J. This writ petition was disposed of by  our Order  dated 1st  of February, 1988, we indicated therein that we will give our reasons shortly. This we do by this judgment.      The Writ  Petition No.  107 of 1988 is a petition under Article  32   of  the  Constitution.  The  petitioner  is  a practising advocate  of the Bombay High Court. He approached this Court  by means of the petition under Article 32 of the Constitution  for   issue  of   a  writ  in  the  nature  of Prohibition or  any other  appropriate order restraining the respondents,  namely,  the  Union  of  India,  the  Director General of  Doordarshan, New  Delhi, Blaze  Advertising Pvt. Ltd.  and   Govind  Nehalani,   being  the   producer   from telecasting or  screening the  serial titled  "Tamas" and to enforce petitioner’s  fundamental rights  under Articles  21 and 25  of the  Constitution and  declaring the screening or televising of  "Tamas" as  violative of  section 5B  of  the Cinematograph Act, 1952.      One Javed  Ahmed Siddique  filed a writ petition in the High Court  of Bombay  being Writ  Petition No. 201 of 1988. The same  came up  before a learned single Judge of the High Court of  Bombay who  while admitting  the same  on 21st  of January, 1988 had granted stay of further telecasting of the said serial  on T.V.  till further  orders. The  respondents herein challenged  the said  order before the Division Bench of the Bombay High Court. The two learned Judges, namely, 1015

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Justice Lentin  and Justice  Mrs.  Sujata  Manohar  saw  the complete serial  on 22nd  of January,  1988 and  vacated the stay by  an order  dated 23rd of January, 1988. The judgment is impugned  in the special leave petition which is taken on board and  is also  disposed of  by this common judgment. It may also  be mentioned that four episodes of the said serial have already been telecast.      The petitioner  states that  the exhibition of the said serial is  against public  order and is likely to incite the people to  indulge in  the commission  of offences and it is therefore, violative  of section 5B (1) of the Cinematograph Act, 1952  (hereinafter called ’the Act’) and destructive of principle embodied  under Article 25 of the Constitution. It is also  contended that  under section  153A of  the  Indian Penal Code,  this  presentation  is  likely  to  promote  or attempts to  promote,  on  grounds  of  religion,  caste  or community, disharmony  or feelings of enmity, hatred or ill- will among different religious, racial, language or regional groups or  castes, or communities and is further prejudicial to the  maintenance of  harmony between different religious, racial, language  or regional  groups and  incites people to participate or  trains them  to the use or criminal force or violence  or   participate  in   such  criminal   acts.  So, therefore, it is an offence under section 153A of the Indian Penal Code.  Our attention  was drawn to section 153B of the Indian Penal  Code and  it was  submitted that the serial is prejudicial to the national integration.      Serial "Tamas"  depicts the  Hindu-Muslim  tension  and sikhmuslim tension before the partition of India. It further shows how  the killings and looting took place between these communities before  the pre-independence  at Lahore. "Tamas" is based on a book written by Sree Bhisham Sahni. It depicts the period  prior to partition and how communal violence was generated  by   fundamentalists  and   extremists  in   both communities and how innocent persons were duped into serving the ulterior  purpose of  fundamentalists and communities of both sides  and how  an innocent  boy is seduced to violence resulting in  his harming both communities. It further shows how extremist  elements in  both communities infused tension and hatred  for their  own ends. That is how the two learned Judges of  the High  Court of  Bombay mentioned hereinbefore have  viewed  it.  They  have  also  seen  that  realisation ultimately dawns  as to  the futility  of it all and finally how inherent  goodness  in  human  mind  triumphs  and  both communities learn to live in amity. They saw that the people learnt this  lesson in  a hard  way.  This  is  the  opinion expressed by  two experienced Judges of the High Court after viewing the serial. 1016      The location of the story is Lahore. The period is just before independence.  The  very  introductory  part  of  the serial which was tele cast on 9th of January, 1988 displayed that the  idea and  message behind  the serial  is  to  keep people away  from getting  involved in such violence arising out of communal animosity. By telecasting it on Doordarshan, Dr. Chitale  appearing for  the petitioner said, now seen by vast majority  of people,  the said  serial  is  exposed  to person of  all ages,  who will  fail to grasp the message if any behind  the serial.  The very first serial, according to the petitioner,  depicts one  person who is reported to be a member of  Scheduled Caste  from the  Hindu community  being asked by one Thekedar to get a pig killed and bring its dead body in order to serve the meal for an English man. The dead body is  shown to  be axed and collected by one person named ’Kalu’ who  is represented  to be  a Christian.  Kalu gets a

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dead pig  from the  said member of the Scheduled Caste Hindu who killed  it. That  dead pig  is shown  to be found at the door steps  of a  mosque. This, according to the petitioner, was provocative  and was  bound to  result in instigation in Hindus against  Muslims and  consequently  to  rouse  Muslim anger resulting in some reaction on the part of the Muslims, which in  its own  turn is  bound to have reaction by way of some acts  of violence  on the  part of Hindus. According to the petitioner,  the total  result would  be that  there  is likelihood that members of both the communities will rise in passion and  anger against each other and take to acts which would lead to communal violence and riots.      The petitioner further states that in the first episode shown on 9th January, 1988 one elderly Hindu who is depicted as  a   ’Guru’,  a   preceptor,  and   is  shown  as  giving inspiration/advice  and   instigation  to  a  young  boy  to practise violence,  to begin  with, by asking the boy to cut the throat  of the  hen, and  when the  boy gets nervous and shows his  unwillingness and  unpreparedness, the Guru warns him that unless he showed his courage to kill a hen to begin with, how  can he  become bold  and courageous  to kill  his enemy. The petitioner further alleges that in the background of this  incident  and  in  context  of  what  precedes  and succeeds this  incident between  the Guru and the boy, it is clear that Guru has instigated the boy to get into the trend of thought  and feeling  to  be  ready  to  commit  violence against his  enemies, in oreder to kill them, and on viewing the  first   part  of  the  said  serial  as  a  whole  this instigation is  to Hindu  young boys  to  take  to  violence against Muslims.  This is  nothing but promoting feelings of enmity and hatred between Hindus and Muslims.      The petitioner  further states that in the first serial the dialogue 1017 between the  Hindu leaders and Muslim leaders is so arranged that Indian  National Congress  is suggested  to be  a Hindu Organisation. In  the  present  background,  therefore,  the petitioner claims  that the  exhibition of  said  serial  is likely to create communal disharmony.      "Tamas" had  been given  ’U’ certificate by the Central Board of Film Censor. In this connection we may refer to the relevant provisions of the Cinematograph Act, 1952, which is an  Act   to  make   provision  for   the  certification  of cinematograph  films   for  exhibition  and  for  regulating exhibitions by  means of cinematograph. Section 3 of the Act provides for  Board of  Film Censors.  Section 4  of the Act provides for examination of films. A film is examined in the first instance  by an  Examining Committee  under section 4A and, in  certain circumstances,  it is further examined by a Revising Committee  under section  5. Members  of  both  the Committees  are   expected  to   set  out   not  only  their recommendations but  also the  reasons  therefore  in  cases where there  is difference of opinion amongst the members of the Committee.  Section 5A of the Act provides that if after examining a  film or  having it  examined in  the prescribed manner, the  Board considers  that the  film is suitable for unrestricted public  exhibition, such a certificate is given which is  called ’U’  certificate. Section  5B  of  the  Act provides for  guidance in certifying films. The said section 5B provides as follows:           "5-B. Principles for guidance in certifying films-           (1) A  film  shall  not  be  entitled  for  public           exhibition if,  in the  opinion of  the  authority           competent to  grant the  certificate, the  film or           any part  of it  is against  the interests of (the

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         sovereignty and  integrity of  India) the security           of the  State,  friendly  relations  with  foreign           States, public  order,  decency  or  morality,  or           involves defamation  or contempt  of Court  or  is           likely to incite the commission of any offence.                (2) Subject to the provisions contained in           subsection (1) the Central Government may issue           such directions as it may think fit setting out           the principles which shall guide the authority           competent to grant certificates under this Act in           sanctioning films for public exhibition."      Section 5C  of the  Cinematograph Act  provides for the constitution of  Appellate Tribunals,  consisting of persons who are  familiar with  the social,  cultural  or  political institutions of India, have special knowledge of the various regions of  India and  also special  knowledge of  films and their impact on society, to hear appeals from the orders of 1018 the Censor Board. Under section 5D, as it stands at present, the Tribunal can hear appeals by persons who, having applied for a  certificate in respect of a film, are aggrieved by an order of  the Board  refusing  to  grant  a  certificate  or granting a restricted certificate or directing the appellant to carry out certain excisions or modifications in the film. In addition,  there is  also an  overall revisional power in the Central  Government  to  call  for  the  record  of  any proceeding in relation to any film at any stage, where it is not made  the subject  matter of  appeal  to  the  Appellate Tribunal, to  enquire into the matter and make such order in relation thereto  as it  thinks fit,  including a  direction that the  exhibition of  the film  should be suspended for a period not  exceeding two months. Under the newly added sub- section 5 of section 6, the Central Government has also been given revisional  power in respect of a film certificated by the Appellate Tribunal on the ground that it is necessary to pass an  order in  the  interests  of  the  sovereignty  and integrity of  India, the  security of  the  State,  friendly relations with  foreign States or public order or decency or morality.      Learned  Additional  Solicitor  General,  Shri  Kuldeep Singh, for  the Central Government, strongly urged before us that the film should be allowed to be exhibited. As a matter of fact in his enthusiasm, he submitted that there should be an order  to the  Government to  exhibit the  film again and again. He  urged that  all the  appropriate authorities have considered the  film and  Doordarshan authorities  have also independently examined  this question. It has to be borne in mind that  there is  no allegation  of any  mala fide or bad motive on  the part  of the  authorities concerned. The only question, therefore,  is whether the film has been misjudged or wrongly  judged and allowed to be exhibited or serialised in T.V.  on a  wrong approach. This film indubitably depicts violence. That  violence between  the communities took place before the pre-partition days is a fact and it is the truth. Dr. Chitale,  however, submits  that truth in its naked form may not  always and  in all circumstances be desirable to be told or exhibited.      During the course of the arguments before us on the 1st of February,  1988 our attention was drawn to an item in the Hindustan Times  of that  day which  contained an  interview with the  author Sree  Bhisham Sahni. Strictly speaking such evidence is  not admissible  but since  it is  a  matter  of public interest,  we have  looked into  it. The  author  has received the  Sahitya Akademi  award for  this novel. It was written in  1974.  The  book  is  being  taught  in  various

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universities. There  has been  no adverse  reaction  to  the novel during  the past  fourteen years.  The author  further said "certain nuances which were, however, 1019 clear in  the book are not so in the serial". The author has drawn attention to the incident that the mischief of getting a pig slaughtered and having it placed outside a mosque, was done by  a character referred to as "Chaudhuri" in the film. In the  novel his full name is mentioned as Murad Ali, which is obviously not a Hindu name, according to the author.      Vivian Bose, J. as he then was in the Nagpur High Court in  the   case  of  Bhagwati  Charan  Shukla  v.  Provincial Government, A.I.R. 1947 Nagpur 1 has indicated the yardstick by which this question has to be judged. There at page 18 of the report  the Court  observed that the effect of the words must be  judged from  the standards  of reasonable,  strong- minded, firm  and courageous  men, and not those of weak and vacillating minds,  nor of  those who  scent danger in every hostile point  of view.  This in our opinion, is the correct approach in judging the effect of exhibition of a film or of reading a  book. It  is the  standard of ordinary reasonable man or  as they  say in English law "the man on the top of a clapham omnibus".      This question  came to be examined by this Court from a different angle  in the  case of  K.A. Abbas v. The Union of India and another, [1971] 2 S.C.R. 446. There K.A. Abbas the petitioner made  a documentary  film called  "A Tale of Four Cities", which attempted to portray the contrast between the life of  the rich  and the poor in the four principal cities of the  country. The  film included certain shots of the red light district in Bombay. Although the petitioner applied to the  Board  of  Film  Censors  for  a  "U"  Certificate  for unrestricted exhibition  of  the  film,  he  was  granted  a certificate only  for exhibition  restricted to  adults. The petitioner then  filed the  writ petition  in this Court. At the hearing of the petition the Central Government indicated that it  had decided  to grant  a  ’U’  certificate  to  the petitioner’s  film  without  the  cuts  previously  ordered. Hidayatullah C.J.  has exhaustively  dealt with the question and noted the statutory requirements. In that film there was a scanning  shot of  a very  short duration, much blurred by the movement  of the  photographer’s camera, in the words of Chief Justice, in which the red light district of Bombay was shown with  the inmates of the brothels waiting at the doors or windows.  Some of  them wore  abbreviated skirts  showing bare legs  up to the knees and sometimes a short above them. This was  objected to.  The film  was shown  to the  learned Judges in  the presence  of the  lawyers. The  learned Chief Justice at  page 468  of the report addressed himself to the question: "How  far can  these restrictions  go and  how are these to  be imposed".  The Court examined the provisions of Sec- 1020 tion  5B(2)   of  the  Act.  After  examining  the  relevant provisions  and  large  number  of  authorities,  the  Chief Justice noted  that the  task of  the censor  was  extremely delicate  and  its  duties  cannot  be  the  subject  of  an exhaustive   set    of   commands   established   by   prior ratiocination. Chief  Justice at  page  474  of  the  report observed as follows:           "Sex and  obscenity are  not always synonymous and           it is wrong to classify sex as essentially obscene           or even  indecent or  immoral. It  should  be  our           concern,  however,  to  prevent  the  use  of  sex           designed to  play a  commercial role by making its

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         own appeal.  This draws  in the  censors scissors.           Thus audiences  in India  can be  expected to view           with equanimity the story of Oedipus son of Latius           who  committed   patricide  and  incest  with  his           mother. When  the seer  Tiresias exposed  him, his           sister  Jocasta   committed  suicide   by  hanging           herself and  Oedipus put  out his own eyes. No one           after viewing  these  episodes  would  think  that           patricide or  incest  with  one’s  own  mother  is           permissible or  suicide in  such circumstances  or           tearing  out   one’s  own   eyes  is   a   natural           consequence. And  yet if one goes by the letter of           the  directions   the  film   cannot   be   shown.           Similarly, scenes  depicting leprosy as a theme in           a story  or in  a documentary  are not necessarily           outside the  protection. If  that were  so Varrier           Elwyn’s Phulmat  of the  Hills or the same episode           in Henryson’s  Testament of  Cresseid (from  where           Verrier Elwyn  borrowed the  idea) would never see           the light  of the day. Again carnage and bloodshed           may have  historical value  and the  depiction  of           such scenes  as the sack of Delhi by Nadirshah may           be permissible,  if handled delicately and as part           of an artistic portrayal of the confrontation with           Mohammad  Shah   Rangila.  If   Nadir  Shah   made           golgothas of skulls, must we leave them out of the           story because  people  must  be  made  to  view  a           historical theme without true history? Rape in all           its nakedness  may be objectionable but Voltaire’s           Candide would  be meaningless  without Cunegonde’s           episode with  the soldier and the story of Lucrece           could never  be depicted on the screen." (emphasis           supplied)      Chief Justice  observed that  our standards  must be so framed that  we  are  not  reduced  to  a  level  where  the protection of  the  least  capable  and  the  most  depraved amongst us  determines what  the morally healthy cannot view or read. The standards that we set for our censors must 1021 make a  substantial allowance  in  favour  of  freedom  thus leaving a  vast area  for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationship as banned in toto and for  ever from  human thought  and must  give scope  for talent to  put them before society. In our scheme of things, the Chief  Justice noted,  ideas having  redeeming social or artistic value  must also have importance and protection for their growth.      Our attention  was also  drawn by  Dr. Chitale  to  the decision of  this Court  in Ebrahim  Sulaiman Sait  v.  M.C. Muhammad and  another, [1980] 1 S.C.R. 1148, where Gupta, J. speaking for the Court observed that truth was not an answer to a charge of corrupt practice under section 123(3A) of the said Act;  what was relevant was whether the speech promoted or sought  to  promote  feelings  of  enmity  or  hatred  as mentioned in  that provision.  But the  likelihood  must  be judged from healthy and reasonable standards.      The question  was again  considered by  this  Court  in Rajkapoor  v.  Laxman,  [1980]  2  S.C.R.  512.  This  Court reiterated  that   the  Penal   Code  is   general  and  the Cinematograph Act,  1952  is  special.  The  scheme  of  the Cinematograph Act  is deliberately  drawn  up  to  meet  the explosively expanding  cinema menace if it were not strictly policed. No  doubt, the  cinema is  a great  instrument  for public good  if geared  to social  ends and  can be a public

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curse if  directed to  anti-social objectives.  The decision reiterated that  a balance has to be struck. On the evidence available before  this Court  it appears  that a balance has been struck.      Dr. Chitale  emphasised that  in an  interview with the author, the  author said  that "Tamas"  was not a historical novel. It  merely takes  into account  certain  events  from history and  builds upon  them. He  further said  that  life provided the  raw material and a writer moulded it according to his imagination and perception of reality.      We have  given full thought to the contentions urged on behalf of  the petitioner  and come  to the  conclusion that these  contentions  cannot  be  accepted  for  two  reasons. Firstly, as  we have  already pointed out, the Cinematograph Act  itself   contains  several  provisions  to  ensure  the fulfilment of  the conditions laid down in section 5B and to ensure that any film which is likely to offend the religious suspectibilities of  the people  are not screened for public exhibition. In  the present  case the  Film Censor Board has approved the  exhibition of  the film.  That  apart  we  are informed that the Doordarshan authorities also 1022 scrutinise a  film before  it is exhibited on the television screen. Though  we do  not have the details of the authority or  body   which  scrutinised   the  film  for  purposes  of exhibition on  the television,  the procedure  does  involve further examination  of the  film from  standards of  public acceptability before  it is  shown on  the television. It is true that  the  remedy  of  an  approach  to  the  Appellate Tribunal is  available only  to  persons  aggrieved  by  the refusal of  the Board to grant a certificate or the cuts and modifications proposed by it. It is for the consideration of the Central  Government whether  the scope  of this  section should be  expanded to  permit appeals to the Tribunals even by persons  who are aggrieved by the grant of certificate of exhibition to  a film on the ground that the principles laid down for  the grant  of certificates  in section 5B have not been fulfilled.  But, even  on the  statute as  it presently stands, the procedure for grant of certificate of exhibition to a  film is  quite elaborate and the unanimous approval by the examining  Committee  must  be  given  full  weight.  As pointed out  by Krishna  Iyer,  J.  in  the  Rajkapoor  case (supra), a  Court  would  be  slow  to  interfere  with  the conclusion of a body specially constituted for this purpose.      Secondly, in  this case  we have  the advantage  of the views of  two experienced  Judges of one of the premier High Courts of  this country.  The learned  Judges found that the message of the film was good. They have stated that the film shows how  realisation ultimately  dawns as  to  futlity  of violence and  hatred, and how the inherent goodness in human nature triumphs.  Dr. Chitale submitted that the Judges have viewed the  film from  their point  of view  but the average persons in  the country  are not as sober and experienced as Judges of  the High  Court. But the Judges of the High Court of Bombay  have viewed  it, as  they said, from the point of view of  "how the  average  person  for  whom  the  film  is intended will  view it"  and the learned Judges have come to the conclusion  that the  average person will learn from the mistakes of  the past  and realise  the machinations  of the fundamentalists and  will not  perhaps commit those mistakes again. The  learned Judges further observed that illiterates are not  devoid of  common sense,  or unable  to  grasp  the calumny of  the fundamentalists  and extremists  when it  is brought home  to them  in action  on the screen. This is how they have  viewed it: those who forget history are condemned

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to repeat it. It is out of the tragic experience of the past that we can fashion our present in a rational and reasonable manner and  view out  future with wisdom and care. Awareness in proper light is a first step towards that realisation. It is true  that in  certain  circumstances  truth  has  to  be avoided. Tamas  takes us  to a historical past-unpleasant at times, but  revealing and  instructive. In those years which Tamas depicts a human tragedy 1023 of great  diminsion took  place in this sub-continent-though 40 years  ago-it has  left a  lasting damage  to the  Indian psyche. It  has been  said by Lord Morley in "On Compromise" that it  makes all  the difference  in the world whether you put truth  in the  first place or in the second place. It is true that  a writer  or a preacher should cling to truth and right, if  the very  heavens fall.  This  is  a  universally accepted basis.  Yet in  practice,  all  schools  alike  are forced to  admit the necessity of a measure or accommodation in the  very interests of truth itself. Fanatic is a name of such ill  repute, exactly  because one who deserves to be so called injuries  good causes by refusing timely and harmless concession; by  irrigating projudices  that a  wiser way  of urging his own opinion might have turned aside; by making no allowances, respecting  no motives,  and recognising none of those qualifying  principles  that  are  nothing  less  than necessary to  make his  own principles true and fitting in a given society.  Judged by  all standards  of a  common man’s point of  view of  presenting history  with a lesson in this film, these  boundaries appear to us could have been kept in mind. This is also the lesson of history that naked truth in all times  will not  be beneficial  but truth  in its proper light indicating  the evils  and the  consequences of  those evils is  instructive and  that message  is there in "Tamas" according to  the views  expressed by the two learned Judges of the  High Court.  They viewed it from an average, healthy and commonsense  point of view. That is the yardstick. There cannot be  any apprehension  that it  is  likely  to  affect public order  or it  is likely to incite into the commission of any offence. On the other hand, it is more likely that it will prevent  incitement  to  such  offences  in  future  by extremists and fundamentalists.      Dr. Chitale,  relying strongly  on certain observations in Abbas’  case (supra,  at p. 459 of the reports) contended that there was real danger of the film in this case inciting people to  violence and to commit other offences arising out of communal  disharmony. It is no doubt true that the motion picture is a powerful instrument with a much stronger impact on the  visual and  aural senses  of the spectators than any other medium  of communications;  likewise, it  is also true that the television, the range of which has vastly developed in our country in the past few years, now reaches out to the remotest corners  of the  country catering  to  the  not  so sophisticated, literary  or educated masses of people living in distant  villages. But  the argument  overlooks that  the potency of  the motion  picture is  as much  for good as for evil. If some scenes of violence, some nuances of expression or some  events in  the film can stir up certain feelings in the  spectator,   an  equally   deep  strong,   lasting  and beneficial impression  can be  conveyed by  scenes revealing the machinations  of  selfish  interests,  scenes  depicting mutual 1024 respect and  tolerance, scenes showing comradeship, help and kindness  which   transcend  the   barriers   of   religion. Unfortunately, modern  development  both  in  the  field  of

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cinema as well as in the field of national and international politics have  rendered it inevitable for people to face the realities of  internecine conflicts, inter alia, in the name of religion.  Even contemporary  news bulletins  very  often carry  scenes   of  pitched  battle  or  violence.  What  is necessary sometimes  is to  penetrate behind  the scenes and analyse the  causes of  such conflicts.  The attempt  of the author in  this film  is to draw a lesson from our country’s past history,  expose the  motives of  persons  who  operate behind the  scenes to  generate and  foment conflicts and to emphasise the  desire of  persons to  live in  amity and the need for them to rise above religious barriers and treat one another  with   kindness,  sympathy  and  affection.  It  is possible only  for a motion picture to convey such a message in depth  and if  it is  able to  do this,  it  will  be  an achievement of  great social  value. In the present case the finding of  the learned  Judges of Bombay High Court is that the picture  viewed in its entirety is capable of creating a lasting impression of this message of peace and co-existence and that  people are  not likely to be obsessed, overwhelmed or carried  away by  the scenes  of violence  or  fanaticism shown in  the film.  We see  no reason  to differ  from this conclusion.      Before we  conclude we note that the petition was based on  alleged   violation  of   Articles  21  and  25  of  the Constitution. We. are unable to see any alleged violation of those articles.  We, however  accept the  position that  the petitioner has  a right  to draw  attention of this Court to ensure that  the  communal  atmosphere  is  kept  clean  and unpolluted. He  has done  well to  draw  attention  to  this danger. We  have examined  and found  that there  is no such danger and  the respondents  have not  acted  improperly  or imprudently.      In the aforesaid view of the matter this petition under Article 32  of the  Constitution fails  and  is  accordingly dismissed.      Similarly,  on   similar  grounds   the  special  leave petition arising out of the judgment and order of the Bombay High Court  dated 23rd  January, 1988 in Appeal No. 96/88 is also dismissed.      In the  facts and circumstances of the case, there will be no order as to costs. R.S.S.                                   Petition dismissed. 1025