ISSUE 4.

WHETHER THE ACTION OF THE RESPONDENT STATE GOVERNMENTS

TO BAN SCREENING OF THE CONCERNED FILM IN THEIR RESPECTIVE
STATES UNCONSTITUTIONAL AND ULTRA VIRES OF THE CONSTITUTION OF
INDIA?

It is humbly submitted before the court that the state government was under the duty to protect
the culture, beliefs, life and property of general public.

4.1.DIRECTIVE PRINCIPLES OF STATE POLICY

It is humbly submitted before the court that the state government is bound by DPSP under Part
IV of the Constitution to take such action. Part IV [Arts. 37 to 51] contains what may be
described as the positive obligations of the State. The State must secure a social order. DPSP are
fundamental in the governance of the country and it shall be the duty of the state to apply these
principles in making laws. The expression “laws” must be construed in a generic sense and
should include all normative exercise of power including the decision making.

ARTICLE 38: STATE TO SECURE A SOCIAL ORDER FOR THE PROMOTION OF

PEOPLE.1 – [(1)] The State shall strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice, social, economic and political,
shall inform all the institutions of national life.

It was observed in Delhi Jal Board v. Raj Kumar and Ors2, that it is the duty of the state under
our Constitution to function as a Welfare State, and look after the welfare of all its citizens.

Also, in the case of Retired Employees of Non-Government College Association v. State of

Maharashtra3, it was observed that the State action must be directed towards attaining the goals
set out in part IV of the Constitution which, when achieved, would permit us to claim that we
have set up a welfare State.

1
Ins. By the Constitution (44th Amendment) Act, 1978, S. 9 (w.e.f. 20-6-1979).
2
AIR 2006 Delhi 75
3
1987 (2) Bom CR 348
 4.2.REASONABLE RESTRICTIONS UNDER ARTICLE 19(2)

It is humbly submitted before the court that the state governments are justified in using their
powers to ban the film under Article 19(2) of the Constitution. Article 19(2) states: [ Nothing in
sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State
from making any law, insofar as such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub-clause 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.] Clause (2) to (6)
gives power to the state to make laws imposing reasonable restrictions for reasons or on grounds
set out in the.

The freedom of speech and expression does not confer 1) an absolute right to speak or publish,
without responsibility, whatever one may choose, or 2) an unrestricted or unbridled license that
gives immunity for every possible use of language. It enables the legislature to impose
reasonable restrictions on the right to free speech.4 Here the state governments imposed
restrictions on the film “in the interests of” or “in relation to” Public Order, Decency or morality,
Incitement to an offence.

Any cognizable offence involving violence was held by Supreme Court to fall within Article
19(2). Clause (2) uses the word “in the interests of public order” and not “for the maintenance of
public order”. A law may not be designed to directly maintain the public order and yet it may be
enacted in the “interests of public order”, if it assists or is conducive to the maintenance of public
order. Not only such utterances as are directly intended to incite disorder, but also those that have
the tendency to lead to disorder fall within the expression.5

In Babulal Parate v. State of Maharashtra6, the court held that anticipatory action to prevent
disorder is within the ambit of the protection.

In Ram Nandan v. State7 , J… said, “Any reasonable restriction can be imposed on the right to
freedom of speech and expression in the interests of public order i.e., for the purpose to maintain

4
V.N Shukla, Constitutional Law of India (Eastern Book Company, 13 th Edition, 2017)
5
Supt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633: (1960) 2SCR 821
6
AIR 1961 SC 884
public order, or in order that public order may be maintained, or in order to prevent disorder or
an apprehension of disorder.”

The right to freedom of speech cannot be permitted to deprave and corrupt the community, and
therefore, objects, if obscene, may be suppressed and punished because such action would
hamper public decency and morality.8

The word “restriction” also includes cases of total prohibition and the State can establish that a
law, though purporting to deprive a person of his fundamental right, under certain circumstances
amounts to a reasonable restriction only.9 Imposition of a restriction for the implementation of
the DPSP of state policy is a point in favor of the reasonableness of restrictions.10

Reasonableness can be laid down under the factors: 11

(i) the underlying purpose of the restrictions imposed;

(ii) the extent and urgency of the evils sought to be remedied thereby;
(iii) the prevailing conditions at the time;

It is humbly submitted before the court that here the underlying purpose of the restrictions
imposed was to protect the culture, beliefs, life and property of general public and to protect the
security of the state.

It is humbly submitted before the court that here there was an urgency to take this action as there
was apprehension of breach of peace. A member of Hindu Bhai Sabha and a Moulvi issued
threatening statements against the release of the film.12 It was speculated that these threats would
cause serious consequences and hence, rendering the ban necessary.

Protests in favor and against the release of the film started occurring. During one such protest in
the state of UP, the protestors against the movie turned violent resulting in clashes and death of

7
AIR 1959 All 101, 1959 CriLJ 1
8
V.N Shukla, Constitutional Law of India (Eastern Book Company, 13 th Edition, 2017)
9
M.B. Cotton Assn. Ltd. v. Union of India, AIR 1954 SC 634
10
State of Bombay v. F.N. Balsara, AIR 1951 SC 318,328:1951 SCR 682.
11
State of Madras v. V.G. Row, AIR 1952 SC 196: 1952 SCR 597.
12
Moot Proposition Para 3
two persons and another ten persons being severely injured13 and thus it made a duty on the gov.
to maintain law and order and peace in the state by banning the film.

Art. 19(1) secures to every citizen the right to freedom of speech and expression. “Freedom of
speech and expression” is a composite expression which is different from “speech and
expression”. Art. 19 (1) guarantees the right to the former and not to the latter. Freedom of
speech and expression has a well-recognized connotation which means the liberty to express
one’s views, opinions and beliefs. It does not mean the right to say whatever, whenever and
wherever one likes.14

In K.A. Abbas v. Union of India15, the court observed that censorship of films including pre-
censorship was constitutionally valid in India as it was a reasonable restriction within the ambit
of Article 19(2). It was pointed out that pre-censorship was but an aspect of censorship and bore
the same relationship in quality to the material as censorship after the motion picture has had a
run.

4.3.ARTICLE 21 OF THE CONSTITUTION OF INDIA

It is humbly submitted before the court that the state governments were bound to take such action
under Art 21 of the COI. Article 21 guarantees right to life and liberty. Protecting life of the
citizen is important and it is the obligation of the State to protect it.16

The Apex Court in the case of S.S Ahuwalia v. UOI and ors,17 held that in the expanded
meaning attributed to Art 21 of the constitution, it is the duty of the State to create a climate
where members of the society belonging to different faiths, caste and creed live together and,
therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual
which should not be jeopardized or endangered.

In Pt. Parmananda Katara v. UOI and Ors18, it was held that Article 21 of the Constitution
casts an obligation on the state to preserve life. Also, in Bandhua Mukti Morcha v. UOI and

13
Moot Proposition para 5
14
J.S. Mill, On liberty (1859)
15
(1970) 2SCC 780: AIR 1971 SC 481
16
Dr. Joseph Manadan And Etc. v. Tran..
17
2001 (2) SCALE 495
18
1989 AIR 2039, 1989 SCR (3) 997
Ors19, the SC observed that it was the fundamental right of every citizen in this country to live
human dignity, free from exploitation.

4.4.THE UTTAR PRADESH CINEMAS (REGULATION) ACT,1955

It is humbly submitted before the court that the act of Mr. BaijuNath, CM of the State of UP to
ban the screening of the film ‘Being Gay’ in the state of UP is according to the Uttar Pradesh
Cinemas (Regulation) Act, 1955.

Section 6(1) of the Act gives power to the state government or DM to suspend exhibition of
films in certain cases.

Section 6(1) states- The state Government, in respect of the whole of the State of Uttar Pradesh
or any part thereof, and the DM in respect of the district within his jurisdiction, may, if it
exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the films
and thereupon the films shall not during such suspension be exhibited in the State, Part or the
District concerned, notwithstanding the certificate granted under the Cinematograph Act, 1952.

Therefore, it is humbly submitted before the Hon’ble Court that the action of the state
governments in banning the film in their respective states was not unconstitutional and ultra-
vires of the Constitution.

19
(1984) 3 SCC 161 : 1984 SCC (L&S) 389