Pandurang Sawalaram Dhurat v. C.P Godse

Kania, J.:— The dispute in this petition centres around a controversial Marathi play going under the somewhat prosaic title of “Sakharam Binder”. The petitioner is the proprietor of Messrs Welcome Theatres and is a producer of plays. Respondent No. 1 is the Chairman, respondent No. 2 is the Secretary and respondents Nos. 3 to 12 are the members of the Stage Performances Scrutiny Board (hereinafter referred to as “the Board”) constituted under the Bombay Police Act, 1951 (hereinafter referred to as “the said Act”) and the Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement, including Melas and Tamashas, 1960 (hereinafter referred to as “the said Licensing Rules”). Respondent No. 13 is the Commissioner of Police, Bombay, who is the licensing authority for the performance licences under the said Licensing Rules. Respondent No. 14 is the State of Maharashtra and respondent No. 15, the author of the play, is a well-known Marathi litterateur and has written several plays in that language.

2. In November 1971 respondent No. 15 wrote the play “Sakharam Binder”. The play centres around three main characters viz. Sakharam himself and two women, Laxmi and Champa. It may be useful to set out briefly the outline of the play. The main character of the play, he can hardly be called a hero, is Sakharam himself. He is a coarse but forceful person. His character seems to have a very few redeeming features except frankness, which probably borders on bluntness. His character is marked by a degree of insensibility to the feelings of others. At the beginning of the play he is shown accompanied by a woman, Laxmi, an emaciated figure, whom he is bringing into his house. He is giving her a stern lecture and laying down the exact terms on which she will be staying with him in his house, including a term that she will have to be like a wife to him. Laxmi is in no condition to object to any of the terms and settles down in his house. She is shown as a woman steeped in traditional morality and unceasingly doing the household chores. There is friction between her and Sakharam at the time of Ganapati festival, because she objects to the participation of Sakharam's friend, Dawood, a Mohamedan, in the arti. Sakharam beats her up. Their relations deteriorate and she has to leave the house. In the next Act, Sakharam is shown bringing into his house another woman, Champa, who is certainly a more vibrant and earthy being than Laxmi. Although he gives the same lecture to her she hardly pays any attention. In the next scene Champa's husband enters the house and is badly beaten by her. She then drives her husband out of the house. There is a scene in which Sakharam is shown trying to approach Champa when she is asleep and wakes her up. Champa tries to resist him but submits when given a threat of being thrown out of the house. She is, however, able to submit to him only under the influence of drink. Laxmi, who had left the house of Sakharam, has been driven out by her nephew with whom she had gone to stay, and tries to come back to the house of Sakharam, but is driven out by him. In the third Act Laxmi is taken in the house by Champa. However, because of Laxmi's presence in the house it is suggested that Sakharam loses his ability to have relations with Champa, who taunts him. Sakharam tries to drive Laxmi out of the house and beats her. At this stage, Laxmi tells him that Champa is carrying on with his friend Dawood. Sakharam storms out of the house, comes back, and strangles Champa. On doing this all strength drains out of him. In the concluding scene he is shown passively watching Laxmi digging the ground with a shovel to hide the body of Champa.

3. On November 17, 1971 the petitioner as the intended producer of the play, submitted the script of the play to the Board. At a meeting of the Board held on February 17, 1972, the petitioner was heard through his representative, the director Kamlakar Sarang, and respondent No. 15. On March 4, 1972 the Board issued a certificate of suitability directing that certain specific words should be dropped and certain scenes presented after due caution with regard to the matters set out therein. This certificate was valid only for the performances on the four given dates set out therein. The play was produced in Bombay in March 1972 and, as expected, it evoked a lively controversy. A number of dramatic critics and authors praised it and an equally large number condemned it. The extracts from the reviews and letters in which the play is praised have been exhibited as exh. “B” to the petition and the extracts from the reviews and reports condemning the play have been exhibited as exh. 2 to the affidavit in reply of M.P Shirsat, Secretary of the Board, dated October 6, 1972. By another certificate of suitability, which is exh. “C” to the petition, some further performances of the play on given dates were permitted. It appears that on April 1, 1972 one Appasaheb Inamdar addressed a letter to the Board in which he roundly condemned the play and called in question the decision of the Board to grant a certificate of suitability to the play. This letter has been annexed as exh. 1 to the further affidavit in reply of M.P Shirsat dated October 25, 1972. On April 4, 1972 there was another meeting of the Board at which the reports of some of the members of the Board who had seen the play were considered. The letter of Appasaheb Inamdar was also placed before the Board. I shall come to the proceedings of this meeting in some detail a little later. At this meeting, a decision was taken, to ban the performance of the play, by a majority of the members and it was further decided that no certificate of suitability should be issued for further performances. On April 6, 1972 the petitioner received a letter from the Board to the effect that the Board had received a report that the play was grossly indecent and obscene and that the script was unfit for public amusement for the reasons set out in the letter. In that letter it was further stated that the Board had cancelled the certificate of suitability dated March 13, 1972.

4. On April 7, 1972 the petitioner filed a petition in this Court being Miscellaneous Petition No. 246 of 1972 impugning the decision of the said Board dated April 6, 1972. Certain interim reliefs were given to the petitioner. On April 13, 1972 the counsel for the respondents in that petition, who were substantially the same as the contesting respondents herein, made a statement before the Court that the Board had not finally decided the question regarding the issue of a certificate of suitability and that it would do so and inform the petitioner by May 5, 1972. On this assurance the petition was withdrawn. On April 28, 1972 the Maharashtra Times of that day carried the report of a statement made by respondent No. 7, who is a member of the Board, a few days earlier, strongly criticising the play. I shall come to this statement in some detail a little later. On April 29, 1972 at the request of the Board, the petitioner and the director, Kamlakar Sarang, attended the meeting of the Board held on that date. At that meeting the Board handed over to the director a paper containing an enumeration of thirty-three proposed cuts and asked the petitioner and the director as to why the said cuts should not be included as conditions in the certificate of suitability. The petitioner and the director asked for some time, to consider their position, which was given. On May 10, 1972 the petitioner submitted a note to the Board showing cause against the said proposed cuts. Some of the cuts were tentatively and without prejudice accepted by the petitioner, and the Board, on the other hand, agreed to give up one deletion of a part of a scene. This happened at the meeting of the Board on May 20, 1972 at which the note of the petitioner dated May 10, 1972 was considered. The final decision was taken on May 23, 1972 and the impugned certificate of suitability was issued to the petitioner under which thirty-two cuts were imposed in the said script as conditions. A copy of this certificate is annexed as exh. “E” to the petition. Most of these cuts relate to deletion of certain words or expressions from the script. But five or six of the cuts relate to deletions of certain parts of some scenes and condition No. 18 directed the deletion of the entire fourth scene of Act II of the play.

5. At the hearing of the petition Mr. Desai, who appeared for the petitioner, challenged not only the certificate of suitability (exh. “E”), but even certain provisions of the said Act and the entire Chapter XII of the said Licensing Rules referred to earlier.

6. The first submission of Mr. Desai was that s. 33(1)(wa) of the said Act involved delegation of essential legislative functions on the Commissioner of Police or the District Magistrate or the Superintendent of Police, who are executive authorities, and was void because of the vice of excessive delegation. It was his further submission that as s. 33(1)(wa) of the said Act itself was void, the Rules in Chapter XII of the said Licensing Rules, which were framed under the powers given by s. 33(1)(wa) of the Act were also void and of no legal effect. Before considering the submissions of Mr. Desai in this connection, it might be useful to set out the relevant portion of s. 33(1)(wa) of the said Act, which runs as follows:

“(1) The Commissioner with respect to any of the matters specified in this sub-section, the District Magistrate with respect to any of the said matters (except those falling under clauses (a), (b), (d), (db), (e), (g), (r), (t) and (u) thereof), and the Superintendent of Police with respect to the matters falling under the clauses afore-mentioned read with clause (y) of this sub-section, in areas under their respective charges or any part thereof, may make, alter or rescind rules or orders not inconsistent with this Act for—

(wa)(i) licensing or controlling, with such exceptions as may be specified, the musical, dancing, mimetic or theatrical or other performances for public amusement, including Melas and Tamashas;

(ii) regulating in the interest of public order, decency or morality or in the interest of the general public, the employment of artists and the conduct of the artists and the audience at such performances;

(iii) prior scrutiny of such performances by a Board appointed by the State Government for the purpose, either for the whole State or for the area concerned, or by an Advisory Committee appointed by the Commissioner, or the District Magistrate in this behalf;

(iv) regulating the hours during which and the places at which such performances may be given;”

7. There are certain provisos to s. 33(1) of the said Act, which are not material for the purposes of this petition. One of the effects of sub-s. (2)(ii) of s. 33 of the said Act is that the rules made under sub-s. (1)(wa) thereof are subject to the previous sanction of the Government. It was the submission of Mr. Desai that the rule making power given under s. 33(1)(wa) of the said Act is unfettered and unguided. It is not even the general rule-making power for the purposes of the said Act. It was submitted by him that the said Act, as the preamble shows, has been enacted primarily for providing one common Police Force and to introduce uniform methods regarding the working and control of the said Force. There is a reference in the preamble to the exercise of powers and performance of functions by the State Government and by the members of the said Force for the maintenance of public order. Chapter II of the said Act deals with superintendence, control and organisation of the Police Force. Chapter IV, in which s. 33 finds place, deals with Police Regulations and certain miscellaneous powers. Chapter V deals with Special Measures for Maintenance of Public Order and Safety of the State. Chapter VI deals with Executive Powers and Duties of the Police, Chapter VII with Offences and Punishments and Chapter VIII with Miscellaneous provisions. It was urged by Mr. Desai that in s. 33(1) of the said Act itself there is no guidance as to the purposes for which or the principles on which the rule-making power conferred thereunder has to be exercised. In s. 33(1)(wa), sub-clauses (i) and (iii) of the said Act there are no guidelines at all as to the manner in which the rule-making power thereunder has to be exercised. In Hamdard Dawakhana v. Union of India . [1960] A.I.R S.C 554. a distinction has been made between conditional legislation and delegated legislation. The Supreme Court in that case has held that the Legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words, by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute. It has been further observed that thus when the delegate has been given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation, the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed, it is an exercise of delegated legislation. In that case, it was held that a portion of s. 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, exceeded the permissible limits of delegated legislation and was void on that account. Section 3 of that Act imposed a restriction against any person taking part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for the purposes set out therein and under cl. (d) the restriction was made applicable to advertisements suggesting the use of that drug for the diagnosis, cure, mitigation, treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under the Act. It was observed that the Parliament had established no criteria, no standards and had not prescribed any principle on which a particular disease or condition was to be specified in the Schedule under cl. (d) referred to above. It was held that the power of specifying diseases and conditions as given in s. 3(d) must, therefore, be held to be going beyond permissible boundaries of valid delegation.

8. In Devi Das v. State of Punjab . [1967] A.I.R S.C 1895. it was held that s. 5 of the Punjab General Sales Tax Act, 1948, as it originally stood, conferred an uncontrolled power on the Provincial Government to levy, every year, on the taxable turnover of a dealer a tax at such rates as the said Government might direct. Under the section the Legislature had practically effaced itself in the fixation of rates and hence the section was void on the ground of excessive delegation. The principle of excessive delegation has been set out in para. 15 of that judgment. It has been stated there that (p. 1901):

“The Constitution confers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process of delegation. An over-burdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits.”

9. Now, in this connection, it must be remembered that it is not essential in every case that the legislative policy must be found in the impugned section itself. It was submitted by Mr. Joshi, who appeared for respondents Nos. 1 to 14, that there is a policy underlying the Act, which would itself serve as a guideline regarding the entire rule making power under s. 33 of the said Act, and that, even otherwise, there are enough guidelines in the said Act to show how the rule making power should be exercised. It was submitted by him that these guidelines can be found from the objects, purposes and the scheme of the said Act. In the preamble to the said Act there is a clear reference to the maintenance of the public order as one of the objects of the police force to which the said Act primarily relates. It was submitted by him that the guidelines for the exercise of the rule making power can be gathered from the preamble to the said Act, the provisions thereof and the character of the Act itself, which is a Police Act. My attention has been drawn by Mr. Joshi to the decision in the leading case of Harishankar Bagla v. The State of Madhya Pradesh . [1955] 1 S.C.R 380.. In that case, the impugned provision was cl. 3 of the Cotton Textile (Control of Movement) Order, 1948, promulgated by the Central Government under s. 3 of the Essential Supplies (Temporary Powers) Act, 1946. Under this clause every person was required to take a permit from the Textile Commissioner to transport cotton textiles. It was held that the preamble and the body of the sections in the Essential Supplies (Temporary Powers) Act, 1946, sufficiently formulate the legislative policy and the ambit and the character of the Act is such that the details of that policy can only be worked out by delegating that power to a subordinate authority within the frame-work of that policy. It was held that s. 3 of the Essential Supplies (Temporary Powers) Act was not ultra vires the Legislature on the ground of delegation of legislative power because of the considerations I have referred to above. In Jyoti Pershad v. Administrator for the Union Territory of Delhi . [1962] 2 S.C.R 125. it has been held that so long as the Legislature indicated in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation was skeletal or that every detail of the application of law to a particular case, was not laid down in the enactment itself or the fact that a discretion was left to those entrusted with administering the law, afforded no basis either for the contention that there had been an excessive delegation of legislative power as to amount to an abdication by the Legislature of its functions, or that the discretion vested was uncanalised and unguided so as to amount to a carte blanche to discriminate. In view of these decisions it is clear that in determining the question of excessive delegation it should certainly be considered whether the preamble to the said Act and the provisions thereof furnish any guidelines to the exercise of the rule making power under s. 33 in general or s. 33(1)(wa) of the said Act in particular. The preamble to the said Act shows that the maintenance of public order is to be a guideline for the exercise of this rule making power. The same conclusion is reinforced by the provisions and character of the said Act, which is a Police Act, and deals with law and order. In view of these guidelines, in my view, there is no substance in the challenge to the provisions of s. 33(1)(wa) of the said Act on the ground of excessive delegation. I may mention at this stage that one of the contentions, to which I propose to come later, was that under these guidelines the rule making power under s. 33(1)(wa)(i) and (iii) of the said Act could be exercised only for maintenance of public order or of law and order and that it is not open under these clauses to frame rules for maintenance of decency or morality. This argument, however, in my view, touches the question of validity of the rules. The question in that connection is, what is the ambit of the expression “public order” and whether it would include preservation of decency and morality. That question, however, as I have said, concerns the validity of the rules and not the section itself.

10. The next branch of the argument of Mr. Desai related to the validity of the rules contained in Chapter XII of the said Licensing Rules. Before coming to the Rules in the said Chapter, it may be pointed out that under Rule 2(b) of the said Licensing Rules, the word “Board” has been defined as meaning the Board appointed by the State Government under sub-cl. (iii) of cl. (wa) of sub-s. (1) of s. 33 of the said Act viz. the Stage Performances Scrutiny Board. Incidentally the expression “Public Amusement Performance” has been defined under Rule 2(j) of the Licensing Rules as a performance of dramas, songs, dances, mimetics and similar other performances to which admission is not restricted exclusively to the members of any particular institutions. Chapter IX of the Licensing Rules relates to Performance Licences. Rule 116 thereof provides that no person shall hold a musical, dancing, dramatic or other performance for public amusement unless and until he has obtained a Performance Licence from the Licensing Authority to hold such performance. Rule 209 of the Licensing Rules provides that the Licensing Authority for the purpose of Chapter IX is the Commissioner of Police, Greater Bombay. Rule 117 provides that the application for a Performance Licence shall be made to the Licensing Authority and shall, inter alia, be accompanied, in the case of performances which have written scripts, by a true copy of the certificate of suitability of the script from the Board. There are further provisions in rule 117 regarding the details to be furnished in the application for a Performance Licence, with which I am not concerned in this case. Rule 120 confers on the Licensing Authority power to refuse a licence if he considers a play or a performance, inter alia, to be indecent or of a scurrilous character or to contain offensive references to personalities or to wound the susceptibilities of any nation or followers of any religion. It sets out six heads of grounds, under which a licence can be refused and also confers power to refuse a licence in case the play or the performance is objectionable on any other ground. Rule 122, inter alia, provides that no person holding a Performance License shall permit or himself commit on the stage or any part of the auditorium any profanity or impropriety of language, any indecency of dress, dance, movement or gesture. Chapter XII of the Licensing Rules, with which I am directly concerned, comprises rules 137 to 145. rule 137 provides that any person who desires to hold or provide for any amusement performance has to apply two months before the date on which such performance is to be held or provided for to the Chairman of the Board for the grant of a Certificate of Suitability, and that such application has to be in Form ‘I’. rules 138 and 139 of the licensing rules, which are the important Rules for the purpose of this petition, are as follows:

“138. Grant of certificate of suitability, with or without conditions.—(1) The Board may, after considering the application and obtaining such further particulars as it may deem fit, issue a certificate of suitability in respect of such performances either without any modification of the script or with such modifications which the Board considers are not open to any of the objections specified in rule 189. Such certificates shall be issued in Form ‘J’.

(2) If the Board considers, from the script submitted for scrutiny or otherwise, that any such performance is open to any of the objections specified in the next succeeding rule but the deletion or modification of a part or parts will render it suitable for public amusement, the Board shall communicate to the applicant its proposals for the modifications and give him a reasonable opportunity of making the necessary modifications. If the Board is satisfied with the modifications agreed to be carried out by the applicant, the Board shall issue a certificate of suitability in respect of the performance in Form ‘J’ and specify therein the conditions subject to which it is issued.

139. Power to refuse certificate of suitability and guiding principles therefor.—(1) The Board may refuse to grant a certificate of suitability in respect of any such performance, if from the script or otherwise, the Board considers that the performance or any part thereof is against the interests of the Sovereignty and integrity of India or the security of the State, friendly relations with foreign States, public order, decency or morality or involves contempt of court or is likely to incite the commission of any offence or involves defamation of any high personality (living or deceased) or of any person (living or deceased) of repute in the literary, social or polictical field or is grossly indecent, scurrilous or obscene or is intended for blackmail.

(2) Subject to the provisions contained in sub-rule (1), the Board in exercising its power to sanction or refuse a certificate of suitability shall be guided by the following directions:—

General Principles which shall guide the Board.—(i) No performance shall be certified as suitable, which will lower the moral standards of those who see it.

Hence sympathy of the audience shall not be thrown on the side of crime, wrong-doing, evil or sin;

(ii) Standards of life, having regard to the standards of the country and the people to which the story relates, shall not be so portrayed as to deprave the morality of the audience;

(iii) The prevailing laws shall not be so ridiculed as to create sympathy for violation of such laws.”

11. Sub-rule (2) of Rule 139 lays down certain rules for the application of the General Principles and, inter alia, provides that it is not desirable that a performance shall be certified as suitable, which deals with vice or immorality in such a manner as to extenuate vicious or immoral acts, undermine the accepted canons of decency, depict vice or immorality as attractive, enlist the sympathy or admiration of the audience for vicious or immoral characters or create the impression that vice and immorality are not to be reprobated. There is a further rule that it is not desirable that a performance shall be certified as suitable, which deals with the relations between the sexes in such a manner as to lower the sacredness of the institution of marriage or suggest that illicit sexual relations are ordinary incidents of life and not to be reprobated or which is intended or likely, inter alia, to wound the susceptibilities of any foreign nation or any community or the followers of any religion or is grossly indecent, scurrilous or obscene or is intended for blackmail. Sub-rule (3) of the said Rule runs to follows:

“Before refusing to grant a certificate of suitability in respect of any performance, the Board shall give the applicant a reasonable opportunity of representing his case, and when the certificate is refused shall communicate to him the reasons therefor”.

12. The remaining Rules in this Chapter are ancillary and are not relevant for the purposes of this petition.

13. The submission of Mr. Desai is that the provisions of s. 33(1)(wa)(iii) of the said Act and the rules in Chapter XII of the said Licensing Rules clearly constitute a restriction on the fundamental right of the petitioner to freedom of speech and expression conferred under art. 19(1)(a) of the Constitution of India and the restriction imposed thereby is not a reasonable restriction within the meaning of the said expression in art. 19(2) of the Constitution of India. It may be clarified that although the challenge was made to the provisions of s. 33(1)(wa), and particularly sub-cl. (iii) thereof, as well as the Rules in Chapter XII of the Licensing Rules, one finds that the provisions in s. 33(1)(wa) of the said Act only confer rule making power and the challenge on the ground of the restriction being unreasonable, therefore, is in effect only to the Rules contained in Chapter XII of the Licensing Rules. The challenge on the ground of violation of art. 19(1)(a) of the Constitution of India can only be to the Rules in Chapter XII of the Licensing Rules and in particular to the Rules 138 and 139 thereof. It was urged that the freedom of speech and expression is one of the most important fundamental rights conferred on citizens by the Constitution of India. In this connection, it may be useful to refer to the decision of the Supreme Court in Bennett Coleman Co. v. Union of India . 1972 2 SCC 788, at p. 823.. Ray J., who delivered the leading majority judgment, has cited with approval the observations of Patanjali Sastri J. (as he then was) in Romesh Thappar v. State Of Madras . [1950] S.C.R 594. that:

“…Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible’” (p. 602).

14. The freedom of the press is no higher than the freedom of speech of a citizen under art. 19(1)(a) of the Constitution. Article 19 does not specifically provide for freedom of the press as the First Amendment to the Constitution of the U.S.A does. There can be no doubt that the fundamental right to freedom of speech and expression is one of the most important fundamental rights conferred under art. 19 of the Constitution of India. At the same time, it must also be realised that it is not, in terms, unlimited as in the case of the Constitution of U.S.A, but cl. (2) of art. 19 of the Constitution of India permits the State to make any law imposing reasonable restrictions on this right in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence. In considering the reasonableness of the restrictions imposed on this right, one has to bear in mind the principle laid down in a classic passage by Patanjali Sastri C.J in State Of Madras v. V.G Row . [1952] A.I.R S.C 196. which runs as follows (p. 200):

“…It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict”.

15. There is one other principle also about which there is no dispute and it is that, there is undoubtedly a presumption in favour of the constitutionality of a legislation. But when the enactment on the face of it is found to infringe a fundamental right guaranteed under art. 19(1) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exceptions laid down in any of the other clauses of the said article. (See Saghir Ahmad v. The State of U.P . [1955] 1 S.C.R 707, at p. 726.).

16. The provisions of s. 33(1)(wa) of the said Act and the Rules contained in Chapter XII and particularly Rules 138 and 139 of the said Licensing Rules were sought to be impugned on the ground of violation of art. 19(1)(a) of the Constitution under several heads. The first argument of Mr. Desai was that these provisions conferred an unfettered and unguided power on the Police Commissioner and the Board and that the grant of a Certificate of Suitability was left completely to the subjective satisfaction of the Board. I may state straightway that there is no substance in either of the contentions and the same were not seriously pressed before me. Rule 139 of the said Licensing Rules itself provides the guidelines for the grant or refusal of a certificate of suitability, and in view of this it cannot be said that unfettered and unguided power is conferred on the Police Commissioner or the Board or that the grant of the certificate is left to the subjective satisfaction of the Board. I may also point out at this stage that the provisions of s. 33(1)(wa)(iii) of the said Act are not open to challenge on the ground that pre-censorship itself amounts to an unreasonable restriction on the right conferred by art. 19(1)(a) of the Constitution, in view of the decision of the Supreme Court in K.A Abbas v. Union of India . 1970 2 SCC 780, to which I shall have to come in considerable detail later on.

17. The next ground on which the reasonableness of the restrictions imposed by the Rules in Chapter XII of the Licensing Rules was sought to be impugned by Mr. Desai was that, under these Rules there was no obligation cast on the Board to give any reasonable opportunity or any opportunity at all to the party adversely affected to show cause against the modifications or deletions proposed by the Board. It has been pointed out by Mr. Desai that unlike Rule 139(3) of the said Licensing Rules, which specifically provides for the grant of a reasonable opportunity to the applicant before refusing to grant a certificate of suitability, there is no similar provision in rule 138 and the only opportunity given is to carry out the modifications suggested by the Board. In Kantilal Babulal & Bros. v. H.C Patel . [1968] A.I.R S.C 445. the impugned provision was s. 12A(4) of the Bombay Sales Tax Act, 1946. Sub-section (4) of s. 12A provided for certain amounts being payable by a dealer to the Government in the event of the dealer contravening the provisions of sub-s. (1) or (2) of the said section or in certain other eventualities. The Court proceeded on the assumption that s. 12A(4) was a penal provision and the Legislature had legislative competence to enact the same. It was held that under our jurisprudence no one could be penalised without a proper enquiry and as the impugned provision did not contemplate any enquiry much less a reasonable enquiry in which the person sought to be penalised could plead and prove his case or satisfy the authorities that their assumptions were either wholly or partly wrong, the provision constituted an unreasonable restriction on the right conferred by art. 19(1)(f) of the Constitution as it conferred an unguided, uncanalised and uncontrolled arbitrary power. It was further observed that the question whether the appellants in the instant case had been afforded a reasonable opportunity to establish their case or not was beside the point. The constitutional validity of a provision had to be determined on construing it reasonably. If it passed the test of reasonableness, the possibility of powers conferred being improperly used, was no ground for pronouncing it as invalid, and conversely, if the same, properly interpreted and tested in the light of the requirements set out in Part III of the Constitution, did not pass the test, it could not be pronounced valid merely because it was being administered in a manner which might not conflict with the constitutional requirements. In State of M.P v. Champalal . [1965] A.I.R S.C 124. it was held that sub-s. (1) of s. 4 of the Bhopal Reclamation and Development of Lands (Eradication of Kans) Act read with sub-s. (4) thereof imposed an unreasonable restriction on the right to hold and enjoy property within art. 19(1)(f) of the Constitution and was invalid, as the said provisions did not provide for giving of an opportunity to the owner or occupier of the land selected for conducting eradication operations to establish that notwithstanding his land being included in the notification under s. 4(1) the particular land in which he was interested was not kans infested and therefore did not stand in need of any eradication operation.

18. It was submitted by Mr. Joshi, in the first instance, that the decision to make a deletion or modification under Rule 138 of the Licensing Rules was an administrative decision and, therefore, even if no opportunity was provided to the petitioner before such a decision was taken, this would not invalidate the said rule. In support of this proposition, Mr. Joshi relied on the decision in Kishan Chand v. Commr. of Police . [1961] A.I.R S.C 705.. It was a case dealing with the question of grant of a licence for conducting an eating house required under s. 39 of the Calcutta Police Act, 1866. Whatever might have been the decision in that case, it has now been held by the Supreme Court in State of Gujarat v. Krishna Cinema . 1970 2 SCC 744 that the power to grant a licence under the Bombay Cinemas (Regulation) Act, 1953 is quasi-judicial, and by the use of the expression “absolute discretion” it is not intended to invest the Licensing Authority with arbitrary power so as to destroy the limitations to which it is subject by its inherent nature. The question in that case was about the discretion to grant a “no objection certificate” under Rule 5(2) of the Bombay Cinema Rules, 1954, and the power of the Licensing Authority under s. 5(2) of the aforesaid Act of 1953 regarding grant of licenses for exhibition of films in cinemas to such persons as the authority thought fit. It may be noticed that as early as in 1959 it has been taken as a well-settled law that proceedings before tribunals issuing permits are quasi-judicial in character (see Raman and Raman Ltd. v. State of Madras . [1959] A.I.R S.C 694.). In view of these decisions, it cannot be seriously disputed that the power to issue a Certificate of Suitability conferred under the provisions of Chapter XII of the said Licensing Rules is a quasi-judicial power, and in granting or refusing such a Certificate of Suitability the Board is performing a quasi-judicial function. Even assuming that the function is not quasi-judicial but administrative, this would not make much difference in view of the decision of the Supreme Court in the case of A.K Kraipak v. Union of India . 1969 2 SCC 262. Even if the decision to grant or to refuse a Certificate of Suitability is administrative, it is clear that it involves serious civil consequences for the applicant if the Certificate of Suitability is refused or is granted subject to serious deletions or modifications in the script; and, in that event, the law requires that a reasonable opportunity must be given to the applicant before a decision adverse to him is taken. The first argument of Mr. Joshi in this connection was that Rule 138(2) of Licensing Rules does, in fact, provide for such an opportunity being given. It is pointed out by him that the said sub-r. (2) provides that if the Board considers, from the script submitted for scrutiny, that the performance is open to any of the objections specified in Rule 139 but the deletion or modification of a part or parts will render it suitable for public amusement, the Board shall communicate to the applicant its proposals for the modifications and give him a reasonable opportunity of making the necessary modifications. On a plain construction of the said sub-rule, in my view, the submissions of Mr. Joshi cannot be upheld. Rule 138(2) provides that if the Board decides from the scrutiny of the script or otherwise that the performance is open to objection but can be rendered suitable for public amusement on the deletion or modification of a part or parts, the Board has to communicate to the applicant its proposals for the modifications and reasonable opportunity is given to the applicant only to make those modifications or other necessary modifications. The utmost that can be said, on a liberal construction of this Rule, is that where a modification is considered necessary by the Board, an opportunity is given to the applicant who may either agree to make that modification or suggest any other modification or who may not agree to make any modification at all. Of course, in case the applicant refuses to make the modifications desired by the Board or any other modification acceptable to the Board, it would be open to the Board to direct the deletion of the offending part of the script or to refuse the grant of a Certificate of Suitability after compliance with the provisions of clause (3) of Rule 139 of the Licensing Rules. It is quite clear to me that Rule 138 contemplates that it is open to the Board, on examination of the script or otherwise, to come to the conclusion either that a particular portion of the script needs to be completely deleted or that it requires some modification, which would mean that certain portion of the script needs to be deleted but some other words or directions may be substituted for the same. It is clear that there is no reasonable opportunity or any opportunity contemplated to be given to the applicant where the Board comes to the conclusion that a certain portion of the script needs to be deleted altogether. It was submitted by Mr. Joshi that the word “deletion” had a narrower connotation than the word “modification” and that as an opportunity is given regarding the modifications suggested by the Board, it should be deemed to include an opportunity even to show cause against the proposed deletions. In my view, this contention is clearly untenable. Where two different words are used in a single Rule or in a single section of an enactment, normally speaking, it would be assumed that the two words have different connotations. If the word “deletion” were to be included in the word “modification” there was no point in providing separately for “deletion” in the said Rule. In fact, the nature of opportunity referred to in Rule 138(2) of the said Licensing Rules makes it clear that the word “modification” is used in the context of a situation where the Board is of the opinion that a certain portion of the script needs to be deleted but may be substituted by some other words, but not a case where it comes to the conclusion that a certain portion of the script needs to be altogether excised. It may be noticed that in The Member, Board Of Revenue v. Arthur Paul Benthall . [1955] 2 S.C.R 842. it has been held by the Supreme Court that when two words of different import are used in a statute in two consecutive provisions, it cannot be maintained that they are used in the same sense. This reasoning could be applied with all the greater force in a case where two different words are used in the same provision or the same Rule.

19. The next argument of Mr. Joshi in this connection was that even assuming that Rule 138 of the Licensing Rules does not, in terms, provide for any opportunity being given to the applicant before a deletion is decided upon, as it is necessary to give such an opportunity under the principles of natural justice, such a requirement should be read into the said Rule and it should not be held to be invalid on this ground. In this connection, Mr. Joshi has drawn my attention to the decision in Jagdish Pandey v. Chancellor, Bihar University . [1968] A.I.R S.C 353. where the provision impugned was s. 4 of the Bihar State Universities (Amendment) Act, 1962. It provided that certain appointments, dismissals, removals or so on, shall be subject to such order as the Chancellor of the University may, on the recommendation of the University Service Commission established under s. 48A of that Act, pass with respect thereto. Although the said section did not in terms provide for any opportunity being given to the parties concerned before the Commission made its recommendations, it was held that it was implicit in the section when it provided that when the Commission would make its recommendations to the Chancellor, on which the Chancellor would pass the necessary orders, that the Commission, before making the recommendations, would hear the teachers concerned according to the rules of natural justice. It must be remembered that this decision, to a certain extent, turns on the expression that the Commission had to make a “recommendation” and it was held that in the making of a recommendation it was implied that the affected teachers would be heard. In a recent decision of the Supreme Court in Madan Gopal Agarwal v. District Magistrate, Allahabad . 1973 1 SCC 89. the requirement of a show cause notice and hearing has been read into s. 3 of the U.P (Temporary) Accommodation Requisition Act, 1947. Although this section does not contain an express provision for notice and hearing before the making of the requisitioning order, it was held that such a provision was to be read there by necessary implication. It was pointed out in that judgment that there were several objective factors to be considered before an order of requisition was made by the District Magistrate and hence there was no reason why the District Magistrate should not hear the owner of the accommodation proposed to be requisitioned on those matters. It was observed that both the provisos to s. 3 of that act suggested the implication of notice and hearing in the main part of that section. It is true that in some cases such a provision for giving of notice and hearing can be read into the provision concerned, although it does not expressly provide for the same. The question, however, is as to when such a requirement can be read into an enactment or a rule. As held by the Supreme Court in Union of India v. J.N Sinha . 1970 2 SCC 458 rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the principles of natural justice, the Courts should do so. But if a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the Court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice. Now, in the case before me, it is difficult to read such a requirement providing for the giving of a notice and hearing to the petitioner into Rule 138(2) of the said Licensing Rules. In the first place, Rule 138(2) is not completely silent on the question of giving of an opportunity to the petitioner and, in fact, provides, as I have referred to earlier, that an opportunity should be given to the petitioner regarding the modifications proposed by the Board. This shows that the rule-making authorities had the question of giving of an opportunity to the applicant present to their minds when the Rule was framed and have, yet, not provided for any opportunity to be given to the applicant before a deletion is decided upon. Moreover, clause (3) of Rule 139 of the Licensing Rules, which is the next Rule, provides that before refusing to grant a certificate of suitability, the Board shall give the applicant a reasonable opportunity of representing his case. But, there is no similar provision regarding the making of a deletion in Rule 138(2). This clearly shows that the rule making authorities considered the question of deletions from the script to be a minor one and intended that no opportunity should be given to the applicant before such a deletion was decided upon. In that case, it is not permissible to read into the said Rule the requirement to give such an opportunity, as suggested by Mr. Joshi. As I have already observed, I have to consider the question of reasonableness or unreasonableness of the restrictions imposed by Rules 138 and 139 in view of all the circumstances of the case and not a single circumstance alone. The circumstance that Rule 138(2) does not provide for an opportunity being given to the applicant before a deletion is decided upon by the Board is certainly a relevant factor in considering the reasonableness of the restrictions imposed by the said Rule. I may point out that it is not as if a deletion is always of a minor importance. A deletion may be of a word or a part of a scene or an entire scene. In fact, in the present case, the Certificate of Suitability contains conditions imposing four or five deletions of parts of scenes and one deletion of an entire scene. It is possible that a deletion may be so vital that the remaining script or performance may become unintelligible to the audience or the remaining part of the script after the deletion may not be worth performing.

20. I may mention that it was urged by Mr. Joshi that, in fact, an opportunity was given to the petitioner before the deletions ordered by the Certificate of Suitability (exh. E) were decided upon. Assuming that this was so, it is of no relevance in deciding the question of the validity of Rule 138 of the Licensing Rules.

21. The next challenge of Mr. Desai to the Rules in Chapter XII of the Licensing Rules was on the ground that they do not require any reasons to be stated by the Board for refusing or imposing conditions to the grant of a Certificate of Suitability. It was urged by him that the decision not to grant a Certificate of Suitability or to grant it subject to conditions is a quasi-judicial decision and the least that could be expected of the authority making that decision is that they should disclose their reasons for doing so. In this connection, Mr. Desai has drawn my attention to the decision in Chandrakant v. Jasjit Singh . [1962] A.I.R S.C 204. where, under Rule 10 of the Custom House Agents Licensing Rules, 1960, the Customs Collector was given a power to reject an application for the grant of a licence to work as a Dalal at New Customs House, Bombay, on two specified grounds and thirdly on the ground that the applicant was not otherwise considered suitable. Sub-rule (2) of that Rule provided that no appeal shall lie from the order of the Customs Collector rejecting an application. These Rules were amended in July 1960 and an appeal was provided to the Chief Customs Authority in the case of rejection of an application for a licence in certain eventualities. It was observed that apart from the reasons specified in Rule 10, there might be other reasons for rejecting the application of a candidate, as for example, when he is found to be a leper or an epileptic, which would be properly covered in the ground that the applicant was not otherwise considered suitable, but one would expect that an order of this kind would be backed by reasons to be recorded in writing. It was further observed that the Rule, which was framed, was so general that it left to the discretion of the Customs Collector to reject a candidate for a trumpery reason which he need not state, even though the candidate might be otherwise suitable, and the said Rule could not be said to be a reasonable restriction upon the right of the successful candidate to carry on his avocation. This case, in my view, does not help Mr. Desai very much. In the first place, a right was given to the Customs Collector to reject an application even on the ground that the candidate was not otherwise considered suitable i.e for a reason other than the reasons specified earlier in the Rule. The observation about the need to give reasons relates to the provision for rejection of a candidate on the ground that he was not otherwise considered suitable. In the case of Rules 138 and 139 of the said Licensing Rules, in certain cases, the reasons for refusing to grant a Certificate of Suitability or imposing of a deletion or a modification may be apparent and in such a case, the rules of natural justice and fairplay may not require that a reason should be given for the refusal or imposition of the condition. But, on the other hand, there may be cases where the reasons may not be so clear or where it may not be clear as to on which particular general principle set out in Rule 139 of the Licensing Rules is the refusal or the condition based, and in such a case the reason for the refusal or the condition imposed being stated would be necessary to enable the petitioner to know as to why his application was rejected. In fact, as far as the actual orders passed by quasi-judicial authorities are concerned, it has now been held that when judicial power is exercised by an authority normally performing executive or administrative functions, the Supreme Court insists upon disclosure of reasons in support of the order on two grounds: one, that the party aggrieved, in a proceeding before the High Court or the Supreme Court, has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power (see Travancore Rayons v. Union of India . 1969 3 SCC 868). In fact, I find that Rule 139 of the Licensing Rules provides that where a Certificate of Suitability is refused, the Board is required to communicate to the applicant the reasons for such a refusal. In view of this, the circumstance that Rule 138 does not provide for any reasons being recorded or communicated to the applicant for a deletion or modification ordered by the Board would be, to some extent a relevant factor in deciding the question of reasonableness of the restrictions imposed by that Rule on the right of the petitioner under art. 19(1)(a) of the Constitution.

22. The next ground on which the Licensing Rules in Chapter XII were attacked by Mr. Desai was that neither Rule 138 nor Rule 139 thereof confer any right of appeal on the aggrieved party against an adverse decision by the Board. In this connection, Mr. Desai has relied on the decision in Chandrakant v. Josjit Singh to which I have already referred earlier. In Virendra v. The State of Punjab . [1957] A.I.R S.C 886. one of the questions was whether the provisions of ss. 2 and 3 of the Punjab Special Powers (Press) Act, 1956, constituted an unreasonable restriction on the right of the petitioner under art. 19(1)(a) of the Constitution of India. It was observed that unlike s. 2 of that act there was no time limit for the operation of an order made under s. 3 nor was there any provision made for any representation being made to the State Government against such an order and it was held that the absence of these safeguards resulted in s. 3 being an unreasonable restriction on the fundamental right under art. 19(1)(a) of the Constitution and, therefore, ultra vires the State Legislature. The absence of a right to make a representation to the State Government against an order passed by the authority concerned was considered to be one of the relevant factors in coming to the conclusion that the restriction imposed was not a reasonable restriction. In K.A Abbas v. Union of India the petitioner prayed for a declaration that the provisions of Part II of the Cinematograph Act, 1952 together with the Rules prescribed by the Central Government in 1960 in purported exercise of its powers under s. 5-B of that Act were unconstitutional and void. When the matter came up for hearing, two of the contentions raised by the petitioner were that there must be a reasonable time-limit fixed for the decision of the authorities censoring films and that an appeal should lie against a decision of such authorities to a Court or to an independent tribunal and not to the Central Government. The Solicitor-General conceded these two points and stated that the Government would set on foot legislation to effectuate them at the earliest possible opportunity. It has been observed in the judgment that as the petitioner felt satisfied with these assurances their Lordships did not go into the matter. There are, however, observations in the judgment to the effect that their Lordships have expressed their satisfaction that the Central Government would cease to perform curial functions through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression and that experts sitting as a Tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary and therefore it is better that the appeal should lie to a Court or tribunal. In the concluding portion of the judgment, their Lordships have observed that the whole of the law and the regulations under it would have always to be considered and that, if the further tests laid down in the judgment were followed, the system of censorship with the procedural safeguards accepted by the Solicitor-General viz. providing for a reasonable time-limit for the decision of the authorities censoring the films and providing for an appeal to a Court or to an independent tribunal, would make censorship accord with our fundamental law. I shall come to the submissions made by Mr. Joshi in connection with these observations a little later. One thing, however, appears clear to me, that although this judgment may not amount to a decision of the Supreme Court on the effect of want of a provision for an appeal and for a timelimit for the decision being taken, the weighty observations of the Supreme Court in this connection must be given their due respect. It was submitted by Mr. Joshi that in the present case, the Board consisted of highly qualified and independent persons and it was not possible to visualise a useful appeal to another body. He has drawn my attention to the averments in para. 18(e) of the affidavit in reply of M.P Shirsat dated October 6, 1972, which show that the Board largely consisted of a cross section of society and of persons trained and experienced in different walks of life. That may be so in the present case. But there is no provision in the said Licensing Rules or elsewhere which lays down any qualifications for the membership of the Board. On the other hand, one finds that the Cinematograph Act, 1952 s. 5(1), which provides for Advisory panels, states that advisory panels shall consist of persons being qualified in the opinion of the Central Government to judge the effect of films on the public; and yet the Supreme Court has made the observations referred to above regarding the necessity of an appeal from the decision taken by the Board of Film Censors to an independent authority. Mr. Joshi relied upon the decision in K.L Gupta v. Municipal Corp. . 1967 70 Bom. L.R 337, S.C [1968] A.I.R S.C 303. where in considering the validity of s. 13 of the Bombay Town Planning Act, 1955, it was held that the fact that no appeal from the decision under s. 13 was provided for, was a matter of no moment for the authority under s. 13 was no less than the Municipal Commissioner himself. Now, that decision turns on its own facts. In that case, s. 13 gave power to the local authority to refuse a commencement certificate and this power was to be exercised by the Municipal Commissioner himself or the Chief Officer of the Municipal Borough or a person exercising the power of an Executive Officer of any local authority. It has been pointed out in that judgment that elaborate provisions were made for giving as wide a publicity as possible to a development plan at all stages so as to be known to the public and the owners of the lands who may be affected by the scheme. There were provisions for objections which were to be heard by the authorities concerned. Before the finalisation of the development plan, there was already a tentative plan by which the local authority had to guide itself. After a development plan was prepared, the question was a simple one, as to whether the commencement certificate could be given without doing any violation to the development plan. It was pointed out that when this power had to be exercised by one of the highest officers of the local authority intimately connected with the preparation of the development plan in all its stages, it was difficult to envisage what other authority could be entrusted with the work of appeal or revision. These considerations do not come into play in the case before me. The observations in K.A Abbas's case relate to the provisions of the Cinematograph Act, 1952, and would certainly apply to the case before me. Neither Rule 138 nor Rule 139 of the Licensing Rules confer any right of appeal on the applicant against an adverse decision of the Board. No qualifications have been prescribed for the membership of the Board. These are also relevant factors to be taken into account in considering the reasonableness of the restriction imposed by these rules.

23. It was next urged by Mr. Desai that the Rules in Chapter XII of Licensing Rules do not provide for any time-limit within which the Board has to give its decision on an application for a Certificate of Suitability being made to the Board and therefore, the rules, requiring the Certificate of Suitability constitute an unreasonable restriction on the right of the petitioner under art. 19(1)(a) of the Constitution. It was urged by Mr. Joshi that under Rule 137(1) it is provided that an application for such a Certificate has to be made two months before the date on which the performance is intended to be held and this indicates the time-limit for making of the decision by the Board. It is difficult to accept this argument. The Rule only provides that an application for a Certificate of Suitability must be made two months before the intended performance, and it does not anywhere state that the decision to issue such a Certificate either with or without any conditions or to refuse the same must be made within a particular time. It is true that it might be difficult to provide for a rigid time-limit within which the Board must give its decision. It is possible to conceive of a case where the script might be in a language which might take some time for the Board to get suitably translated. It is even possible, that in a case the Board might desire to witness a performance to see how the actual play based on the script is performed, and the applicant, in a given case, might not be able to arrange for a performance within a short period of time, so that the provision of a rigid time-limit could lead to a Certificate of Suitability being possibly refused. Mr. Desai admitted that these were considerations which were relevant. But it was urged by him that for the said Rules to constitute a reasonable restriction, it was essential that at least some time-limit should have been provided within which the Board would ordinarily be required to give its decision regarding the issue of a Certificate of Suitability. In my view, there is some force in this submission and the absence of such a provision is a relevant consideration in determining the reasonableness of the restriction imposed by these Rules particularly in view of the observations in K.A Abbas v. Union of India, which I have referred to earlier.

24. The next ground on which the validity of rules 138 and 139 of the licensing rules was strongly attacked by Mr. Desai was the absence in these Rules of a direction for preservation and promotion of art. Strong reliance was placed on the decision in K.A Abbas v. Union of India in this connection. I do not propose to repeat what I have stated earlier about this decision. On the concessions made by the learned Solicitor-General referred to earlier the Supreme Court took up for consideration the question as to whether pre-censorship of films offends the right to freedom of speech and expression, and negatived that contention. It is common ground that the principles for guidance in certifying films, contained in s. 5-B of the Cinematograph Act, 1952, together with the Rules prescribed for the application of these general principles are substantially similar to the rules prescribed in Rule 139(2) of the said Licensing Rules regarding the general principles regulating the grant or refusal of a Certificate of Suitability and the rules for the application thereof. Their Lordships of the Supreme Court, after due consideration of these principles, have gone on to state in para. 50 of the said judgment as follows (p. 497):

“But what appears to us to be the real flaw in the scheme of the directions is a total absence of any direction which would tend to preserve art and promote it. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears to be completely forgotten. Artistic as well as inartistic presentations are treated alike and also what may be socially good and useful and what may not”.

25. Their Lordships have then gone on to set out the principles for determining the question as to the obscenity of a book laid down by the Supreme Court in Ranjit D. Udeshi v. State . 1964 67 Bom. L.R 506, S.C [1965] A.I.R S.C 881. as summarised by the Khosla Committee and observed that the application of these principles does not seek to whittle down the fundamental right of free speech and expression beyond the limits permissible under our Constitution, for however high or cherished that right, it does not go to pervert or harm society and the line has to be drawn somewhere. Thereafter, their Lordships have observed as follows (p. 498):

“…The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. 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.”

26. Their Lordships have thereafter gone on to make observations to the effect that if one were to go by the letter of the directions given several themes, which deserve to be shown as the works of art, could not be shown in films. It was held that the items mentioned in the directions were not by themselves defective. But Parliament had not legislated enough, nor had the Central Government filled in the gap. Neither had separated the artistic and the sociably valuable from that which was deliberately indecent, obscene, horrifying or corrupting. They had not indicated the need of society and the freedom of the individual. They had thought more of the depraved and less of the ordinary moral man. Thereafter, in para. 54 of the judgment, their Lordships have said (p. 499):

“…Although we are not inclined to hold that the directions are defective in so far as they go, we are of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included. Whether this is done by Parliament or by the Central Government it hardly matters”.

27. In the result, the petition was allowed as the purpose of the petition was more than served, by the assurances given by the Solicitor-General and what was said in the judgment. It was urged by Mr. Joshi that these observations of the Supreme Court cannot be regarded as ratio decidendi or even obiter dicta of the Court, but were merely casual observations. It was submitted by him that these observations were merely in the nature of advice given to the Government as to what an ideal code of censorship should contain. It was urged by him that it was significant that although the petitioner had prayed for a declaration that the provisions of Part II of the Cinematograph Act, 1952, together with the rules prescribed by the Central Government in the purported exercise of its power under s. 5-B of that Act were unconstitutional and void, no such declaration was made. It is true that no such express declaration has been given in that case. But, due regard must be given to the order of the Court which was that the petition was allowed. Apart from this, from my point of view, it does not matter very much whether these observations constitute the ratio decidendi or are in the nature of obiter dicta. Even the obiter dicta of the Supreme Court are binding on all High Courts (see Narayanlal Bansilal v. M.P Mistry . 1958 61 Bom. L.R 220.). I find it difficult to persuade myself to accept the argument of Mr. Joshi that these observations are not even obiter dicta but are merely casual observations in the nature of advice given to the Central Government. When their Lordships of the Supreme Court spoke of a real flaw in the scheme of directions, I must presume that they were referring to a legal flaw and not to a moral flaw or anything of that kind. After all the Court was primarily concerned with the question as to what was required in a code of censorship, so that it would accord with our fundamental law and particularly the rights conferred by art. 19(1)(a) of the Constitution. In my view, these observations of the Supreme Court regarding the need of an express direction to preserve art or promote it are binding on me. Therefore, the absence of such a direction in Rule 139 of the Licensing Rules amounts to a serious flaw in the said Rule and Rule 138 and is certainly a relevant factor to be taken into account in determining the validity of these rules.

28. It was pointed out by Mr. Desai that one of the contentions taken up in the petition is that the said Licensing Rules in Chapter XII are vague and uncertain and the persons applying the same are in a boundless sea of uncertainty. Mr. Desai fairly conceded that in view of the decision in K.A Abbas's case, where substantially similar provisions were held not to be vague, this contention was not open to him in this Court.

29. One other contention taken up is that there are no qualifications prescribed for the membership of the Board. This by itself is of no relevance. The only importance which this circumstance can have is in the consideration of the question as to the necessity of a right of appeal, which I have discussed earlier.

30. In view of what I have discussed above, in my opinion, Rule 138 of the said Licensing Rules constitutes an unreasonable restriction on the fundamental right of the petitioner under art. 19(1)(a) of the Constitution and is, therefore, void. As far as Rule 139 of the Licensing Rules is concerned, the same is the position, although it is true that this Rule does not suffer from two of the defects from which Rule 138 suffers, in so far as Rule 139(3) provides that before refusing to grant a Certificate of Suitability, the Board must give the applicant a reasonable opportunity of representing his case, and when such a Certificate is refused, it should communicate to him the reasons therefor. Notwithstanding this, Rule 139 must also be held to be bad in view of the other defects which are common to Rules 138 and 139 and which I have discussed above. These defects are, in the main, the absence of a right of appeal against the decision of the Board and absence of any direction for the preservation and promotion of art.

[The rest of the judgment is not material to this Report.]