W.P.Nos.2101, 2102, 2291 and 2442 to 2444 of 2013

&

M.P.Nos.2 and 3 of 2013

K.VENKATARAMAN, J

The petitioners have come up with the present writ petitions for

the following common reliefs:-

(a) for a mandamus forbearing the first and second respondent and his

officers, subordinates, employees, or any other persons and / or authorities

acting or claiming under the first and second respondents from in any manner

interfering with the petitioner's exercise of their constitutional rights, including

under Articles 14, 19 and 21 of the Constitution of India by release of the

feature film "Vishwaroopam / Vishwaroop" in Tamil, Telugu and Hindi

languages.

(b) for declaration declaring the action of the second respondent in

instructing all the District Collectors and/or such other officers/authorities in

the State preventing or otherwise interfering with the peaceful release of the

feature film "Vishwaroopam / Vishwaroop" in Tamil, Telugu languages

scheduled on 25.01.2013 and in Hindi language scheduled on 02.02.2013 as

unconstitutional.

2. The case of the petitioners in nutshell is set out hereunder:

(a) The film "Vishwaroopam / Vishwaroop" was duly certified by the

fourth respondent subjecting the film to few cuts and changes. The film has

been certified under 'UA' category meaning thereby that the film is fit for

universal viewing under adult guidance. The Board of the fourth respondent

comprises persons representing the interest of multifarious group in the

society, including the interest of a major religious community. The film has

received censorship in Islamic countries including Malaysia and Qatar.

(b) When the film is scheduled to be released on 25.01.2013, the

petitioners are shocked to witness a news scroll clipping in the Television

channels in the night of 23.01.2013, mentioning about the ban imposed by the

second respondent on the release of the film "Vishwaroopam / Vishwaroop" for

a period of two weeks. No notice was given to the petitioners before passing

the ban order.

(c) The second respondent on an impermissible ground viz., inability of

the State in maintaining law and order has acted. Thus, he has curtained the

fundamental rights guaranteed under Article 14, 19 and 21 of trhe Constitution

of India.

(d) The very invocation of Section 144 Cr.P.C, in the face of similar

power having been expressly conferred under the Cinematograph Act, 1952 is

untenable.

(e) The impugned orders referred to earlier passed under Section 144 of

Cr.P.C. are liable to be struck down as unconstitutional for the reason that the

special statutes governing the right to exhibit cinematograph films override the

Code of Criminal Procedure.

(f) The impugned orders were passed without taking into consideration

the fundamental rights vest with the petitioners.

(g) Censor certificate has been issued by the fourth respondent Board in

respect of the subject film only after satisfying themselves that the film did not

contain any material that is against the State or against any particular religion.

While so, the order passed under Section 144 Cr.P.C is totally erroneous.

The petitioners therefore have come up with the present writ petition.

3. In all the writ petitions, the petitioners have prayed for two

interim orders, viz.,

(a) Interim stay of the direction said to have been issued by the second

respondent to all the District Collectors and/or such other officers/authorities in

the State preventing or otherwise interfering with the peaceful release of the

feature film "Vishwaroopam / Vishwaroop" in Tamil and Telugu languages

scheduled on 25.01.2013 and in Hindi language scheduled on 02.02.2013

pending disposal of the writ petition.

(b) Interim injunction restraining the first and second respondents, their

officers, subordinates, employees, or any other persons and / or authorities

acting or claiming under the first and second respondents from in any manner

interfering with the petitioner's exercise of their constitutional rights, including

under Articles 14, 19 and 21 of the Constitution of India by release of the

feature film "Vishwaroopam / Vishwaroop" in Tamil, Telugu and Hindi

languages pending disposal of the writ petition.

4. The learned Senior Counsel appearing for the petitioners

strenuously contended that,

(a) Neither the first respondent nor the second respondent has any

power to stop the screening of the film. He has further contended that when

once the film has been certified for release under the Cinematograph Act,

1952, the state has no power to impose a ban. He has relied on Section 13 of

the Act which empowers the central Government or the local authority to

suspend exhibition of the film in certain cases. By relying on the same, the

learned Senior Counsel submitted tha the said power vest with the authorities

named under the said Act, cannot be exercised by the authorities of the State.

(b) The constitutional rights provided under Article 14, 19 and 21 is

sought to be interfered by the respondents 1 and 2 which cannot be allowed.

(c) The impugned order under Section 144 Cr.P.C. is violative of the

fundamental rights guaranteed under Article 14, 19(1)(A) and 21 of the

Constitution of India and hence, they are liable to be set aside.

(d) The State Legislature has no power to engage itself for the pre-

censorship of cinematograph films and such role is exclusively preserved by

the Parliament. In exericse of such power, the Parliament has enacted the

Cinematograph Act, 1952. The filed of certification of films being squarely

covered by the central legislation and neither the State Legislature nor the

executive have any competence with regard to the pre-censorship of feature

films.

(e) The fourth respondent has applied its mind and granted certification

for release of the said film. While so, the State has no power at all either

ignore the provisions of the Cinematograph Act, 1952 or to nullify the

certificate issued by the fourth respondent Board.

(f) The special statutes governing the right to exhibit cinematograph

films override the Criminal Procedure Code and hence, the power exercised

under Section 144 Cr.P.C. is in valid.

(g) The impugned order passed under Section 144 Cr.P.C. without any

evidence whatsoever and without applying the mind.

5. On the other hand, the learned Advocate General and learned

Additional Advocate General contended that--

(a) The writ petition is not maintainable since the petitioners are not the

affected parties and only the theatre owners, if at all affected.

(b) The respondents 1 and 2 have considered the law and order problem

which may arise, if the film is released and hence, the second respondent has

taken the decision considering the totality of the circumstances and has passed

the order under Section 144 Cr.P.C. The said view taken by the second

respondent cannot be faulted.

(c) All the 31 District Collectors have felt that there is likelihood of law

and order problem and hence all the District Collectors have passed an order

under Section 144 Cr.P.C. As far as Chennai is concerned the second

respondent who is the competent authority has passed the order under Section

144 Cr.P.C.

(d) Under Section 7 of the Tamil Nadu Cinemas Regulation Act, 1955, the

Government or the District Collector has authority to suspend the exhibition of

films in certain cases and hence, it cannot be said that the second respondent

or the District Collectors have no authority to pass an order under Section 144

Cr.P.C.

(e) The certificate said to be given by the Central Board of Film

Certification for the film "Vishwaroopam / Vishwaroop" is not by the competent

authority and the petitioners cannot rely on the said certificate.

(f) The petitioners have no legal right and hence, the filing of the writ

petition by them as though they have got a legal right is liable to be rejected.

Further, Article 226 of the Constitution of India can be enforced only to enforce

legal rights.

(g) The freedom of expression envisaged under Article 19(1) of the

Constitution is not absolute, since Clause (2) of Article 19 empowers the State

Government to impose reasonable restrictions.

(h) Alternative remedy is available under Clause 5 and 6 of Section 144

Cr.P.C which has not been availed by the petitioners.

6. Mr.Sankara Subbu, learned counsel appearing for the persons,

who have given complaint about the telecasting of the film, submitted that the

said film affects the sentiment of the Muslim Community people and the same

cannot be allowed.

7. He has also further pointed out that the entire film except the

first song affects the sentiment of the muslim community at large and hence

the film cannot be permitted to be released and that a proper decision has

been taken by the authorities while passing the orders under Section 144

Cr.P.C. He has also dealt with each one of the objections. He has also added

that the cuts were recommended only for reducing certain percentage of the

scenes in the film.

WHETHER WRIT PETITION IS MAINTAINABLE OR NOT

8. The first and foremost submission that requires to be considered

is whether the writ petitions filed by the petitioners are maintainable. On this

point, the learned Advocate General appearing for the respondents 1 and 2

contended that the petitioners are not the aggrieved parties and the order

under Section 144 Cr.P.C was made only against the theatre owners and hence

the petitioners cannot be termed as aggrieved persons and they cannot

maintain the writ petitions.

9. However, I am not able to countenance the said argument made

by the learned Advocate General. The reason being that the petitioners who

have produced the film will be the worst sufferers, if it is not allowed to be

released. Even though the theatre owners have to release the film in their

theatres, the ultimate sufferers would be only the petitioners who have

produced the film. Even assuming that the petitioners have received the

money for releasing the film in respective theatres, once if it is not released in

their theatres, definitely they will be pouncing on the petitioners to get back

the money which they have paid for releasing the film in their theatres.

10. Therefore, in my considered view, the petitioners are defintely

aggrieved persons and they can maintain the writ petitions. Therefore, the

argument made by the learned Advocate General on this ground is liable to be

rejected

WHETHER THE PETITIONERS HAVE LEGAL RIGHT TO FILE WRIT PETITION AND

CHALLENGE THE ORDER MADE UNDER SECTION 144 CR.P.C.

11. As stated already, it is the case of the petitioners that they

have produced the film and the theatre owners agreed to release the film in

their respective theatres and in view of the present order made under Section

144 Cr.P.C, they are unable to release the film in their respective theatres. In

such circumstances, the petitioners acquires the legal right in challenging the

proceedings under Section 144 Cr.P.C which is starring at them also. By no

stretch of imagination, it can be said that the petitioners are not aggrieved

over the orders made under Section 144 Cr.P.C. This point is also held against

the respondents 1 and 2.

12. Even otherwise, the said point canvassed by the respondents 1

and 2 requires a detailed counter affidavit, putting forth their case on this

ground elaborately. However, for the disposal of the interim applications, I am

of the considered view that the petitioners have got legal right and that they

can maintain the writ petition for the reasons stated above.

13. The next contention of the learned Advocate General which

requires to be considered is, whether the competent authority has issued the

certificate for screening the film.

14. While elaborating the said contention, the learned Advocate

General relied on Sections 3(1) and 4(1) of the Cinematograph Act, 1952

(herein after referred to as the Act) and the same are re-produced hereunder:-

“3. Board of Film Certification:- (1) For the purpose of

sanctioning films for public exhibition, the Central Government

may, by notification in the Official Gazette, constitute a Board to

be called the Board of Film Certification which shall consist of a

Chairman and not less than twelve and not more than twenty-five

other members appointed by the Central Government.”

4. Examination of films:- (1) Any person desiring to

exhibit any film shall in the prescribed manner make an

application to the Board for a certificate in respect thereof, and the

Board may, after examining or having the film examined in the

prescribed manner-- ...”

15. By pointing out the said provision, learned Advocate General

further submitted that Section 4(1) of the Act mandates that the Board alone

can examine whether the film can be certified or not and no committee can

examine the said position. He has further elaborated that the examining

committee cannot certify and that the power cannot be delegated to the

examining committee.

16. On the contrary, learned Additional Solicitor General of India

relied on Section 7B of the Act, which is extracted hereunder:- “7B.

Delegation of powers by Board:

(1) The Central Government may, by general or special order,

direct that any power, authority or jurisdiction exercisable by the

Board under this Act shall, in relation to the certification of the

films under this Part and subject to such conditions, if any, as may

be specified in the order, be exercisable also by the Chairman or

any other member of the Board, and anything done or action taken

by the Chairman or other members specified in the order shall be

deemed to be a thing done or action taken by the Board.

(2) The Central Government may, by order and subject to

such conditions and restrictions as may be prescribed, authorise

the regional officers to issue provisional certificates.”

17. By relying on the said provision, the learned Additional Solicitor

General of India, contended that clause (2) of Section 7B of the Act, can

authorise the Regional Officer to issue provisional certificates. He has also

taken me to Rule 22 (1), (2)(b), (8) and (9) of the Cinematograph

(Certification) Rules, 1983 (herein after referred to as the Rules). And the

same are extracted hereunder:-

“ 22. Examining committee

(1) On receipt of an application under rule 21, the Regional

Officer shall appoint an Examining Committee to examine the film.

The examination shall be made at the cost of the applicant on such

date, at such place and at such time as the Regional Officer may

determine.

(2) The Examining Committee shall consist of --

...

(b) in the case of a long film, four members of the advisory

panel and an examining officer of whom two persons shall be

women”

(8) The Examining Committee shall examine the film having

regard to the principles for guidance in certifying films specified in

section 5B(1) and the guidelines issued by government under

Section 5B(2).

(9) Immediately after the examination of the film each

member of the Examining Committee attending the examination

shall, before leaving the preview theatre record his opinion in

writing in Form VIII set out in Schedule II spelling out in clear

terms the reasons therefor and state whether he or she considers,

--

(a) that the film is suitable for unrestricted public exhibition, i.e., fit

for 'U' certificate; or

(b) that the film is suitable for unrestricted public exhibition but

with an endorsement of caution that the question as to whether

any child below the age of 12 years may be allowed to see the film

should be considered by the parents or guardian of such child, i.e.,

fit for 'UA' certificate; or

(c) that the film is suitable for public exhibition restricted to adults,

i.e., fit for 'A' certificate; or

(d) that the film is suitable for public exhibition restricted to

members of any profession or any class of persons having regard

to the nature, content and theme of the film, i.e., fit for 'S'

certificate; or

(e) that the film is suitable for 'U' or 'UA' or 'A' or 'S' certificate, as

the case may be, if a specified portion or portions be excised or

modified therefrom; or

(f) that the film is not suitable for unrestricted or restricted public

exhibitions, i.e., that the film be refused a certificate,

and if the Chairman is away from the regional centre where the

film is examined, the form aforesaid shall be prepared in duplicate.

By relying on the above provisions, the learned Additional Solicitor General of

India contended that the examining committee has examined the film and has

certified the film for releasing the same. He has also taken me to clause (10)

and (11) of Section 22, which are extracted hereunder:-

“(10) The examining officer shall distribute copies of the

synopsis with credit titles and songs among the members of the

committee and furnish them the form and such other documents as

may be specified by the Board for making their recommendation.

(11) After screening of the film, the examining officer shall

see that --

(a) the recommendation of every member of the committee

is recorded in unambiguous terms and each excision or modification

is properly specified in clear terms with reason or reasons therefor;

(b) the same is duly signed by the members of the committee; and

(c) where the report of any member of the committee is

incomplete, that fact is brought to the notice of the member

concerned before he leaves the preview theatre.”

18. The files have also been produced before me to substantiate

the contention of the learned Additional Solicitor General of India. The

certificate in respect of the Tamil Film 'Vishwaroopam', which is enclosed in the

typed set of papers along with the writ petitions filed by the petitioners which

shows that the examining committee mentioned therein have made

recommendation to certify the film, which has also been certified by the

examining officer, which is in confirmity with Section 22 of the said rules.

19. Rule 23 of the said Rules contemplates that on receipt of the

records referred to in sub rule (12) of rule 22, the Chairman can direct the

Regional Officer concerned to take further action on behalf of the Board. The

said rule is extracted hereunder:-

"23. Certification

On receipt of the record referred to in sub-rule (12) of rule

22, the Chairman, unless the provisions of sub-rule (1) of rule 24

are attracted, direct the Regional Officer concerned to take further

action on behalf of the Board in conformity with the

recommendation of the Examining Committee either unanimous or

by majority

PROVIDED that in case of a short film when the Committee is

divided in its opinion, the Chairman shall either examine the film

himself and take, or direct the Regional Officer concerned to take

further action on behalf of the Board to give effect to his decision."

20. Rule 25 of the said Rules also contemplates that on receipt of

the orders of the Board under Section 4 or Section 5A, the Regional Officer

shall communicate the same to the applicant by registered post. The said rule

is extracted hereunder:

“25. On receipt of the orders of the Board under Section 4 or

Section 5A, the Regional Officer shall communicate the same to the

applicant by registered post or in such other manner as in the

circumstances of the case he deems fit and take such other steps

in accordance with the said orders as he may deem necessary.”

21. In the given case on hand, the Central Board of Films

Certification pertains to Tamil film 'Vishwaroopam' reads as follows:-

“After examination of the film by the members of the

Examining Committee mentioned below and on the

recommendations of the said Examining Committee, the Board

hereby certifies that the film is fit for public exhibition with an

endorsement of caution that the question as to whether any child

below the age of 12 years may be allowed to see the film should

be considered by the parents or guardian of such child, and also

subject to excisions and modification listed in part II on the

reverse:

1.Hasan Mohamed Jinnah

2.K.Sathis Kumar

3.Revathi Krishna

4.T.Shanthi

5.V.Packirisamy (E.O.)”

22. In respect of Hindi film viz., 'Vishwaroop', the certification of

the Central Board of Films is extracted hereunder:-

“After examination of the film by the members of the

Examining Committee mentioned below and on the

recommendations of the said Examining Committee, the Board

hereby certifies that the film is fit for public exhibition with an

endorsement of caution that the question as to whether any child

below the age of 12 years may be allowed to see the film should be

considered by the parents or guardian of such child, and also

subject to excisions and modification listed in part II on the

reverse:

1.Md.Nayeemur Rahman

2.Nrithya. P

3.Periasami Suresh

4.Vanitha

5.V.Packirisamy (E.O.)”

23. In respect of Telugu film viz., 'Vishwaroopam', it reads as

follows:

“After examination of the film by the members of the Examining

Committee mentioned below and on the recommendations of the

said Examining Committee, the Board hereby certifies that the film

is fit for public exhibition with an endorsement of caution that the

question as to whether any child below the age of 12 years may be

allowed to see the film should be considered by the parents or

guardian of such child, and also subject to excisions and

modification listed in part II on the reverse:

1.J.Krishnaveni

2.K.Chiranjeevi

3.Mahalakshmi Baradwaj

4.N.S.Hayathkhan

5.Jayanthi Muralidharan(E.O.)”

24. Therefore, in my considered view, the contention raised by the

learned Advocate General that the certificate has not been issued by the

competent authority is liable to be rejected and accordingly, rejected.

25. The next question that arises for consideration is, whether the

order under Section 144 Cr.P.C. could be passed while a certificate was issued

by the Central Board of Films Certification for the said film.

26. The law relating to pre-censorship of cinematograph films are

traceable to Article 246(1) of the Constitution of India read with Entry 60 of

List I of VII Schedule to the Constitution. Entry 60 of the List of the VII

Schedule reads as follows:-

" 60. Sanctioning of cinematograph films for exhibition".

27. As far as the State is concerned, its power to legislate in the

field of cinematograph is again traceable to Article 246(2) of the Constitution

read with Entry 33 of List II of the VII Schedule to the Constitution. Entry 33

of List II reads as follows:-

"33.Theatres and dramatic performances; cinemas subject to the

provisions of entry 60 of List I; sports, entertainments and

amusements."

28. In view of the same, the said legislature has no power to

engage itself for the pre-censorship of cinematograph films and it is exclusively

within the power of the Parliament. Exercising such power, the Cinematograph

Act, 1952 was enacted. The fourth respondent exercising the power available

under the said Act, has granted certificate for the release of the said film.

When such certificate was issued, to set at naught the same, whether an order

under Section 144 Cr.P.C. can be passed ? As rightly contended by the

learned Senior Counsel appearing for the petitioners, the Code of Criminal

Procedure is general law and the Cinematograph Act, 1952 is a special law.

Therefore, Section 5 of Cr.P.C. will come to the rescue of the petitioners, which

reads as follows:-

“5. Saving:- Nothing contained in this Code shall, in the absence

of a specific provision to the contrary, affect any special or local

law for the time being in force, or any special jurisdiction or power

conferred, or any special form of procedure prescribed, by any

other law for the time being in force”.

29. A special law made in this regard will override the provisions of

Code of Criminal Procedure.

30. In the judgement relied on by the learned Senior Counsel

appearing for the petitioners reported in (2008) 3 Supreme Court Cases

674, Suresh Nanda vs. Central Bureau of Investigation, the question that

arisen before the Hon'ble Apex Court was whether the provisions of Cr.P.C will

be employed for impounding the Passport. It has been held by the Hon'ble

Apex Court in the said decision that for impounding the passport, resort should

be made under Section 10(3)(e) of the Passport Act. It has been further held

that the Passport Act is a special Act and it would override the provisions of

Cr.P.C for the purpose of impounding the Passport. If the said principle is

employed in the case on hand, the provisions of the Act alone will prevail and

the provisions of Cr.P.C moreso, Section 144 cannot be invoked.

31. That apart, Section 13 of the Act envisages that the State

Government or local authority can suspend exhibition of the film in certain

cases which is usefully extracted here under:

"13. Power of Central Government or local authority to

suspend exhibition of films in certain cases

(1) The Lieutenant-Governor or, as the case may be, the Chief

Commissioner, in respect of the [whole or any part of a Union

territory], and the district magistrate in respect of the district

within his jurisdiction, may if he is of opinion that any films which

is being publicly exhibited is likely to cause a breach of the peace,

by order, suspend the exhibition of the film and during such

suspension the film shall be deemed to be an uncertified film in the

State, part or district, as the case may be.

(2) Where an order under sub-section (1) has been issued by the

Chief Commissioner or a District Magistrate, as the case may be, a

copy thereof, together with a statement of reasons therefor, shall

forthwith be forwarded by the person making the same to the

Central Government, and the Central Government may either

confirm or discharge the order.

(3) An order made under this section shall remain in force for a

period of two months from the date thereof, but the Central

Government may, if it is of opinion that the order should continue

in force, direct that the period of suspension shall be extended by

such further period as it thinks fit."

32. Section 144 of the Cr.P.C was invoked instead of Section 13 of

the Act. If an order was made under Section 13(1) of the Act, definitely it can

be reviewed by the Central Government.

33. Further more, when once a certificate has been issued by the

competent authority under the Act, no order can be passed to set at naught

the same, either by invoking Section 144 Cr.P.C or by invoking any other

provisions under the Cr.P.C.

34. In yet another judgement relied on by the learned Senior

Counsel appearing for the petitioners reported in 2006 (4) CTC 193, Sony

Pictures Releasing of India Ltd., v. The State of Tamil Nadu, when the

exhibition of the film "The Da Vinci Code" was suspended for two months by

the authorities of the State of Tamil Nadu on the ground that various sections

of the Christian Community have expressed their strong resentment against

the alleged objectionable content of the said film, which is against the Christian

tenets and they are likely to resort to various forms of agitation where the film

is to be screened, resulting in communal tension and acts of violence which will

result in breach of peace. The said action was challenged before this Court.

After considering the judgements of the Hon'ble Apex Court and the Andhra

Pradesh High Court, this Court in Paragraphs 50 and 51 has held as follows:

"50. It was contended on behalf of the State that while deciding

Shankarappa's case, the Supreme Court was well aware of Section

13 and yet, had not chosen to declare it illegal. In that case, the

vires of Section 13 was not challenged and therefore, merely

because there is no reference to Section 13, we cannot presume

that the Supreme Court had given its seal of approval to the

constitutionality of Section 13. Even here, the petitioners have not

challenged that Section, but the reasoning given by the Supreme

Court in Shankarappa's case will apply to this case while deciding

whether it was open to the executive to pass the order under

Section 13. When the power given to the Central Government

under Section 6(1) for reviewing, revising or sitting in appeal over

the decision of the quasi judicial body has been taken away for the

reasons explained in the paragraphs extracted above, we must

imagine the rigour of the test that the State will have to satisfy in

order to justify the impugned order. The State fails the test. If a

section of the society threatens to express its views by unlawful

means thereby curtailing the fundamental rights of citizens, the

State owes its duty not to please those persons who threaten such

breach of peace, but to protect those persons whose fundamental

rights are threatened to be violated. Therefore, even from this

angle, the impugned order fails the test. Such threats to freedom

of artistic expression are on the rise. We see such incidents all over

the country. This is not healthy; this trend myst be nipped in the

bud. To echo Justice Brandeis, this trend will rock the stability of

the State. In his speech, "Ancient Insights and Modern Man",

Mr.Palkhivala says, "India has had an unrivalled tradition of

religious freedom and tolerance. That tradition was born of the

consciousness that truth can never be the monopoly of any one

sect or creed". To what depths have we now fallen ? One can only

say.... Cry my beloved country.

51. The persons who object to the film, are not involuntarily and

forcibly exposed to the contents of the film. They must buy the

tickets to see the film. If someone is offended by what he knows to

be the film's content, he is free to avoid watching the film. It is

doubtful whether the objectors or the authorities have even seen

the film. In the words of the learned Judge of the Andhra Pradesh

High Court, there is a mechanical certification "of the heckler's veto

of a few objections on dictation as it were, rather than informed

satisfaction of his own as legislatively ordained". The impugned

order must, therefore, be quashed."

35. In yet another judgement relied on by the learned Senior

Counsel appearing for the petitioners reported in (2011) 8 SCC 372,

Prakash Jha Productions v. Union of India, the Hon'ble Apex Court has

held that it is the duty of the State Government to maintain Law and Order

once a film has been certified by the Censor Board. It has been further held

that the film certified by the Censor Board for public exhibition cannot be

subjected to further censorship by State Government because such power is

not available to the State Government. Further, it has been held that once a

film is certified by the Censor Board, it is the duty of the State Government to

effectively maintain Law and Order once such film is being publicly exhibited.

Paragraphs 21, 22 and 25 to 27 of the said judgement is usefully extracted

here under:

"21. Besides, the contention of the State of U.P. that some of the

scenes of the film could create a breach of peace or could have an

adverse effect on the law and order situation cannot be accepted

as this film is being screened in all other States of India peacefully

and smoothly and in fact some of the States, where this film is

being screened, are also similarly sensitive States as that of the

State of U.P. In such States the film is being screened without any

obstruction or difficulty and without any disturbance of law and

order situation.

22. So far the contention of the counsel appearing for the State of

Uttar Pradesh that the issue of reservation is a delicate issue and is

to be handled carefully is concerned, we are of the considered

opinion that reservation is also one of the social issues and in a

vibrant democracy like ours, public discussions and debate on

social issues are required and are necessary for smooth functioning

of a healthy democracy. Such discussions on social issues bring in

awareness which is required for effective working of the

democracy. In fact, when there is public discussion and there is

some dissent on these issues, an informed and better decision

could be taken which becomes a positive view and helps the

society to grow.

23. ...

24. ...

25. Reference could also be made to the decision of this Court in

Union of India v. K.M. Shankarappa2. In the said case the

constitutional validity of Sections 3, 4 and other sections of the

Cinematograph Act, 1952 were challenged. In para 8 of the said

judgment, this Court has stated that 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 and that it is for the State Government concerned to see

that the law and order situation is maintained and that in any

democratic society there are bound to be divergent views.

26. In the present case, the Examining Committee of the Board had seen the

film along with the experts and only after all the members of the Committee as

also the two experts gave positive views on the screening of the film, thereafter

only the certificate was granted. Therefore, since the expert body has already

found that the aforesaid film could be screened all over the country, we find the

opinion of the High-Level Committee for deletion of some of the scenes/words

from the film amounted to exercising power of pre-censorship, which power is

not available either to any high-level expert committee of the State or to the

State Government. It appears that the State Government through the High-

Level Committee sought to sit over and override the decision of the Board by

proposing deletion of some portion of the film, which power is not vested at all

with the State.

27. It is for the State to maintain law and order situation in the

State and, therefore, the State shall maintain it effectively and

potentially. Once the Board has cleared the film for public viewing,

screening of the same cannot be prohibited in the manner as

sought to be done by the State in the present case. As held in K.M.

Shankarappa2 it is the responsibility of the State Government to

maintain law and order."

36. In yet another judgement relied on by the learned Senior

Counsel appearing for the petitioners reported in (1989) 2 SCC 574,

S.Rangarajan vs. P.Jagjivan Ram, the Hon'ble Apex Court considered the

matter pertaining to the tamil film "Ore Oru Gramathile". The Division Bench of

this Court revoked the "U" certificate issued to the said film and an appeal has

been filed against the said judgement. The Hon'ble Apex Court considering the

plea putforth by the State of Tamil Nadu that some organisations are agitating

for the release of the film and that they have made agitation for banning the

film as it hurts the sentiments of the people belonging to a particular

community, in Paragraphs 50 to 53, has held as follows:

"50. This takes us to the validity of the plea put forward by the

Tamil Nadu Government. In the affidavit filed on behalf of the

State Government, it is alleged that some organisations like the

Tamil Nadu Scheduled Castes/Scheduled Tribes People's Protection

Committee, Dr. Ambedkar People's Movement, the Republican

Party of India have been agitating that the film should be banned

as it hurt the sentiments of people belonging to Scheduled

Castes/Scheduled Tribes. It is stated that General Secretary of the

Republican Party of India has warned that his party would not

hesitate to damage the cinema theatres which screen the film.

Some demonstration made by people in front of “The Hindu” office

on 16-3-1988 and their arrest and release on bail are also referred

to. It is further alleged that there were some group meetings by

Republican Party members and Dr. Ambedkar People's Movement

with their demand for banning the film. With these averments it

was contended for the State that the exhibition of the film will

create very serious law and order problem in the State.

51. We are amused yet troubled by the stand taken by the State Government

with regard to the film which has received the National Award. We want to put

the anguished question, what good is the protection of freedom of expression if

the State does not take care to protect it? If the film, is unobjectionable and

cannot constitutionally be restricted under Article 19(2), freedom of expression

cannot be suppressed on account of threat of demonstration and processions or

threats of violence. That would tantamount to negation of the rule of law and a

surrender to blackmail and intimidation. It is the duty of the State to protect the

freedom of expression since it is a liberty guaranteed against the State. The

State cannot plead its inability to handle the hostile audience problem. It is its

obligatory duty to prevent it and protect the freedom of expression.

52. In this case, two Revising Committees have approved the film. The

members thereof come from different walks of life with variegated experiences.

They represent the cross-section of the community. They have judged the film in

the light of the objectives of the Act and the guidelines provided for the purpose.

We do not think that there is anything wrong or contrary to the Constitution in

approving the film for public exhibition. The producer or as a matter of fact any

other person has a right to draw attention of the Government and people that

the existing method of reservation in educational institutions overlooks merits.

He has a right to state that reservation could be made on the basis of economic

backwardness to the benefit of all sections of community. Whether this view is

right or wrong is another matter altogether and at any rate we are not

concerned with its correctness or usefulness to the people. We are only

concerned whether such a view could be advocated in a film. To say that one

should not be permitted to advocate that view goes against the first principle of

our democracy.

53. We end here as we began on this topic. Freedom of expression

which is legitimate and constitutionally protected, cannot be held

to ransom by an intolerant group of people. The fundamental

freedom under Article 19(1)(a) can be reasonably restricted only

for the purposes mentioned in Article 19(2) and the restriction

must be justified on the anvil of necessity and not the quicksand of

convenience or expediency. Open criticism of government policies

and operations is not a ground for restricting expression. We must

practice tolerance to the views of others. Intolerance is as much

dangerous to democracy as to the person himself."

37. In the said judgement, their Lordships have considered the

fundamental freedom guaranteed under Article 19(1)(a) and have held that

the same can be reasonably restricted only for the purposes mentioned in

Article 19(2) and the restriction must be justified on the anvil of necessity and

not the quicksand of convenience or expediency.

38. On the other hand, the learned Advocate General relied on the

decision reported in 2012 (2) CTC 705, P.Pugalenthi v. State of Tamil

Nadu. That is the case where the petitioner who is a practising advocate has

filed a "Public Interest Litigation" praying for a declaration declaring the action

of the District Collector, Tirunelveli District in imposing a Prohibitory Order

under Section 144 Cr.P.C as null and void. Thereunder the District Collector

has passed an order under Section 144 Cr.P.C preventing the people who are

assisting agitators / organisations against Atomic Power Plants from entering

the Taluk where plant was installed in order to prevent any incident affecting

public tranquility / public interest. In such circumstances, it has been held by

the Division Bench that the order is only a regulation and not a prohibition

altogether for avoiding breach of peace and moreover, the Division Bench held

that the petitioner is not the aggrieved person and the Public Interest Litigation

cannot be filed challenging the same. It has been further held that the remedy

of the petitioner therein, aggrieved by the Order under Section 144 Cr.P.C is to

approach the Magistrate under Section 144 (5) of Cr.P.C.

39. The said judgement will not come to the rescue of the

respondents 1 and 2 at all. The reason being that the petitioners who wanted

to exhibit the film in theatres after obtaining valid certificate from the

competent authority cannot be prevented from doing so on the objections

raised in certain quarters that it affects their sentiments.

40. In such circumstances, they can only approach the competent

authority to set at naught the certificate issued by the said competent

authority. So far, it is contended by the Additional Solicitor General of India

that nobody has approached the competent authority to revoke the certificate

granted to the film "Viswaroopam". As and when they approach, it is for the

competent authority to consider the same.

41. Yet another decision relied on by the learned Advocate General

appearing for the respodents 1 and 2 is reported in (2013) 1 MLJ (Crl) 163,

G.Sivarasa Boopathy v. District Collector. That is the case where the

petitioner thereon was denied permission to hold public meeting in view of the

Prohibitory order made by the District Collector under Section 144 (1) Cr.P.C.

In the said judgement, it has been held that the impugned order was

promulgated in order to prevent actions in breach of public peace and in the

interest of security of people and public properties. Therefore, it has been held

that the prohibitory order is justified. However, in the given case on hand,

though necessary certificate has been issued by the competent authority for

exhibiting the film, without setting at naught the certificate issued in that

regard, the order under Section 144 Cr.P.C was made and hence, the said

judgement will not come to the rescue of the respondents 1 and 2.

42. Yet another decision relied on by the learned Advocate General

was reported in CDJ 2012 MHC 4872, S.Raja Maravan @

Manickavasagam vs. The Supreintendent of Police, Tirunelveli District.

That is the case where the petitioner therein filed Crl.O.P to give adequate

police protection and accord permision for using sound systems in the

Mamannar Poolithevar 297th birthday celebrations at Nerkattam Seval

Palayam, Sivagiri Taluk, Tirunelveli District. It has been held therein that in the

name of birthday celebration of Mamannar Poolithevar public peace and

tranquility cannot be allowed to be disturbed, especially when the police,

taking into a ground realities into consideration refused permission. This Court

further observed that the Courts should not normally interfere with matters

relating to law and order which is primarily the domain of the administrative

authorities concerned.

43. In the case on hand, as stated already, the petitioners have

got certificate from the competent authority under the Act which cannot be, by

passed, by passing an order under Section 144 Cr.P.C. The only reason that

made the authority to pass such an order under Section 144 Cr.P.C is to

prevent the law and order problem. A well answer has been given in the

judgements reported in 2006 (4) CTC 193, Sony Pictures Releasing of

India Ltd., v. The State of Tamil Nadu and (1989) 2 SCC 574,

S.Rangarajan vs. P.Jagjivan Ram which have been extracted above.

44. No doubt, for maintaining law and order problem, the authority

competent is entitled to pass an order under Section 144 Cr.P.C. But, that does

not mean that a section of the society can curtail the fundamental rights of a

citizen, but it has to protect those persons whose fundamental rights are

threatened to be violated. This view was taken by this Court in the judgement

reported in 2006 (4) CTC 193, Sony Pictures Releasing of India Ltd., v.

The State of Tamil Nadu which was already extracted above. It is the answer

to the present question. Even the decision taken in (1989) 2 SCC 574,

S.Rangarajan vs. P.Jagjivan Ram is the answer to this question. Already

paragraphs 50 to 53 of the said judgement has been extracted above.

45. The next question that has to be answered is the balance of

convenience. The petitioners have produced the film and in the event of not

releasing the same, they will be the ultimate sufferers. It is stated that the

petitioners have invested a hudge amount of Rs.100 Crores in the production

of the film which is not denied by the respondents. If the release of the film is

stalled by passing orders under Section 144 Cr.P.C, definitely it will be a huge

loss to the petitioners which cannot be compensated, in the event of this Court

coming to the conclusion at a later stage that the order made under Section

144 Cr.P.C is not valid. Thus, the balance of convenience is in favour of the

petitioners for grant of interim orders.

46. No doubt the sentiments expressed by Mr.Sankarasubbu on

behalf of the Muslim community at large has to be viewed in a proper sense.

47. The United Nation (India) and the unity of the people living in

this country shall be the most paramount consideration. In fact, while the issue

pertaining to the release of the film "Dasavatharam" came for consideration

before the Division Bench headed by me, along with Hon'ble Mr.

Justice.M.Sathyanarayanan, We have held in paragraph 29 as follows:

"29. Thus, in fine, we are unable to grant the relief that has been

sought for by the petitioners and the writ petitions are liable to be

dismissed and accordingly dismissed. No costs. Consequently,

connected petitions are closed."

48. However, the Freedom of Expression guaranteed by the

Constitution of India, moreso under Article 19(1) of the Constitution of India

cannot be curtailed. Though, I have viewed the film along with the learned

Counsels appearing for the petitioners as well as the other sides, I am not

expressing any opinion, moreso because, the expressions if made will affect

the rights of the parties on approaching the authorities who have issued the

certificate for the release of the film for withdrawal of the certificate or for any

other remedy. Therefore, the only option that is available for the Muslim

organisations is that to approach the Censor Board with a plea to either cancel

the certificate or for deletion of certain portion in the film.

49. It is also to be noted that the Telugu Version of the film was

already released in Andhra Pradesh and today, the learned Senior Counsel

appearing for the petitioners submitted that in Karnataka also the film has

been released with a rider. Further more, there was no agitation to stop the

Hindi version of the film in Delhi.

50. That apart, it has to be seen that some of the muslim leaders

have seen the film, which was exhibited to them by the actor Mr.Kamal

Hassan. Thereafter only, a representation seems to have been given to the

authorities concerned in Tamil Nadu. It is admitted by the learned counsel

appearing for the muslim organisations that no specific scene was pointed out

in the said representation, which hurt the sentiment of the muslim

community at large.

51. One more aspect that has to be considered is that all the

District Magistrates / District Collectors of 31 Districts, it is surprised to note,

have taken a common decision and passed an order under Section 144 Cr.P.C.

which appears to be strange. The order passed by the District Collector,

Kancheepuram District will reveal that it has been brought to his notice by

many Muslim organisations that the scenes and dialogues in the film are highly

defermatorry and deregatory and it will affect the religious harmony and

transquility of Tamil Nadu. Considering the said aspect alone, an order under

Section 144 Cr.P.C was made by him. Similar orders seem to have been

passed by the other District Collectors. In my considered view, no

independent reasons have been given by the District Collector and solely he

relied on the statement made by the muslim organisations. Thus, it seems to

be that the District Collector is carried away by the sentiment expressed by the

muslim organisations and nothing more. As far as the other Districts are

concerned, either the report of the Superintendent of Police or the objections

made by the muslim community people were taken into consideration for

passing orders under Section 144 Cr.P.C.

52. Therefore, considering the totality of the cirucmstances, I am

of the considered view that the order made under Section 144 Cr.P.C is liable

to be kept in abeyance for the present. Therefore, there shall be an order of

interim stay of the operation of the order made under Section 144 Cr.P.C and

there shall be an order of interim injunction restraining the respondents 1 and

2 from interfering with the petitioners right in releasing the feature film

Vishwaroopam in Tamil language.

53. I make it very clear that the interim order has been passed

considering the prima facie case established by the petitioners, but, however,

after the counter affidavit is filed by the respective respondents, the matter

will be decided on merits and in accordance with law. Any expression made

hereunder shall not be viewed as a final decision taken on the grounds raised

by the petitioners or the respective contentions raised by the respondents.

Further more, as stated supra, the order under Section 144 Cr.P.C. came to be

passed in view of the representation given by several muslim organisations.

Their remedy is to approach authorities named under the Cinemotagraph Act,

1952 to seek redressel. The order made herein will not be stumbling block for

them in approaching the authority named under the said Act in seeking

appropriate relief.