Full Judgment Text
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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
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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.
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