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: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 “7B.

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. Schedule reads as follows:-

Entry 60 of the List of the VII

" 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 HighLevel 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. connected petitions are closed." No costs. Consequently,

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 It is admitted by the learned counsel

authorities concerned in Tamil Nadu.

appearing for the muslim organisations that no specific scene was pointed out in the said representation, which community at large. hurt the sentiment of the muslim

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 In my considered view, no

passed by the other District Collectors.

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.

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