judgement:
Civil Appeal No. 2891 of 1984.
From the Judgment and Order dated 28.2.84 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Order No. 118/84 D. A.K. Ganguli, P. Parmeswaran and K. Swamy for the Appellant.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI,J.
This is a statutory appeal under Section 35 L(b) of the Central Excise & Salt Act, 1944, hereinafter called the 'Act ', against the Order dated February 22, 1944 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, hereinafter called the 'CEGAT ' In this appeal we are concerned with the question whether there was exigibility to taxation on the item concerned under the Act.
It appears that during the course of investigations made against Swastik Investment Company, Bombay, the Central Excise Officers found that some of the consignments of the material described in the documents as 'crimpled uncut waste ' were cleared from M/s. Swadeshi Polytex Ltd., Ghaziabad, during the period from Jan '74 to Dec '77 and were purchased by the respondents herein and utilised in the manufacture of polyester staple fibre.
The Collector held that the so called 'crimpled uncut waste ' purchased by the respondents was, in fact, polyester fibre tow and the staple fibre which were commercially two distinct products and the respondents had carried on manufacture of polyester staple fibre from tow and, as such, exigible to duty.
The respondents filed an appeal before the Central Board of Excise & Customs against the Collector 's Order.
The appeal was thereafter transferred to CEGAT in pursuance of Section 35 P of the Act.
It appears that there is distinction between a tow and staple fibre.
The Ministry of Finance (Deptt. of Revenue) 's circular indicates as follows: "Tow is a collection of many parallel continuous filaments without twist which are grouped together in rope like form." "Tow is used for the same purpose for which staple fibre is 1009 used.
Tow is mainly converted into staple fibre and only a negligible quantity is converted directly into yarn.
It has been therefore decided that duty should be levied on Tow at the rate applicable to staple fibre (MF (DR & I) F. No. 50/7/71 CX 2 dt.
22.12.72)".
In other words, Tow is fibre in running length and staple fibre is obtained by cutting it into required short length.
On an examination of the material and the contention, the Tribunal came to the conclusion that the material which the respondents had purchased was already man made fibre but in running length.
All that the respondents did in relation to it, was to cut it into staple length after some manual sorting and straightening.
The question, therefore, is whether cutting the long fibre into short fibre resulted into a new and different articles of commerce.
Now it is well settled how to determine whether there was manufacture or not.
This Court held in the case of Union of India vs Delhi Cloth & General Mills, ; that 'manufacture ' means to bring into existence a new substance and does not mean merely to produce some change in a substance (emphasis supplied).
It is true that etymological word 'manufacture ' properly construed would doubtless cover the transformation but the question is whether that transformation brings about fundamental change, a new substance is brought into existence or a new different article having distinctive name, character or use results from a particular process or a particular activity.
The taxable event under the Excise Law is 'manufacture '.
See in this connection Empire Industries Ltd. & Ors. etc.
vs Union of India & Ors. etc.
, [1985] Suppl.
1 SCR page 292 and M/s Ujagar Prints vs Union of India, In the instant case it is not disputed that what the appellant did, was to cut the running length fibre (tow) into short length fibre (staple fibre).
It indubitably brought a change in the substance but did not bring into existence a new substance.
The character and use of the substance (man made fibre) remained the same.
It is true that by the change in the length of the fibre, it acquired a new name.
But since in this case the tariff entry recognised the single description 'man made fibre ' with no further sub division based on length of the fibre and even without any distinct enumeration of the various forms of fibre by cutting long fibres into short ones, the respondents did not bring into existence any new product so as to attract any levy under the same tariff entry.
Even by cutting, the respondents obtained man made fibre.
Such cutting, therefore, involved no manufacture and, hence, no duty liability can be imposed upon them.
1010 In that view of the matter and on the facts found by the Tribunal, we are of the opinion that the Tribunal was right in the view it took and that decision needs no interference.
This appeal, therefore, cannot be entertained and is accordingly dismissed.
N.V.K. Appeal dismissed.

dataset_name: IN-Abs

summary:
% The Central Excise Officers during the course of investigations made against M/s Swastik Investment Company, Bombay found that some of the consignments of the material described in documents as 'crimpled uncut waste ' were cleared from M/s Swadeshi Polytex Limited, Ghaziabad during the period from January, 1974 to December, 1977, were purchased by the respondents and utilised by them in the manufacture of 'polyester staple fibre '.
The Collector held that the 'crimpled uncut waste ' purchased by the respondents was in fact 'polyester fibre tow ' and that the respondents had carried on manufacture of 'polyester staple fibre ' from tow and, as such, exigible to duty.
Aggrieved by the Collector 's Order the respondents filed an appeal before the Central Board of Excise and Customs.
This appeal was transferred to the Customs Excise and Gold Control Appellate Tribunal in pursuance of section 35 P of the .
The Tribunal on an examination of the material and the contentions came to the conclusion that what the respondents had purchased was already man made fibre but in running length, and that what they did in relation to it, was to cut it into staple length after some manual sorting and straightening and held that such cutting involved no 1007 manufacture and hence no duty liability could be imposed.
In the Appeal by the revenue to this Court on the question: whether there was exigibility to taxation on the item manufactured by the respondent.
Dismissing the Appeal.
^ HELD: 1.
There is a distinction between 'tow ' and 'staple fibre '.
'Tow ' 'is fibre in running length and 'staple fibre ' is obtained by cutting it into required short length.
[1009B] 2.
The taxable event under the Excise Law is 'manufacture '. 'Manufacture ' means to bring into existence a new substance and does not mean merely to produce some change in a substance.
[1009D] 3.
Etymologically the word 'manufacture ' properly construed would doubtless cover transformation, but the question is whether the transformation in the instant case brings about fundamental change, a new substance is brought into existence, or a new different article having distinctive name, character or use results from a particular process or a particular activity.
[1009D E] In the instant case, it is not disputed that what the respondents did, was to cut the running length fibre (tow) into short length fibre (staple fibre).
It indubitably brought a change in the substance but did not bring into existence a new substance.
The character and use of the substance (man made fibre) remained the same.
By the change in the length of the fibre, the substance acquired a new name.
But since the tariff entry recognised the single description 'man made fibre ' with no further sub division based on length of fibre and even without any distinct enumeration of the various forms of fibre by cutting long fibres into short ones, the respondents did not bring into existence any new product so as to attract any levy under the same tariff entry.
Even by cutting, the respondents obtained man made fibre.
Such cutting, therefore, involved no manufacture and, hence, no duty liability can be imposed upon them.
[1009E H] Union of India vs Delhi Cloth & General Mills, ; ; Empire Industries Ltd. & Ors. etc.
vs Union of India & Ors. etc.
, [1985] Suppl.
1 SCR page 292 and M/s Ujagar Prints vs Union of India, , referred to. 1008


judgement:
Civil Appeal No. 906 of 1984.
From the Judgment and Order dated 8.7.1980 of the Bombay High Court in Second Appeal No. 663 of 1971.
V.N. Ganpule for the Appellant.
S.V. Deshpande for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The short question which arises for consideration in this case is whether a person adopted by a Hindu widow after the coming into force of the (hereinafter referred to as 'the Act ') can claim a share in the property which had devolved on a sole surviving coparcener on the death of the husband of the widow who took him in adoption.
One Shamrao, who was governed by the Mitakshara Hindu Law died leaving behind him two sons Dharma (the appellant in this appeal) and Miragu.
Miragu died issueless in the year 1928 leaving behind him his widow Champabai respondent No. 2.
The properties owned by the joint family of Dharma and Miragu passed on to the hands of Dharma who was the sole surviving coparcener on the death of Miragu.
Under the law, as it stood then, Champabai had only a right of maintenance in the joint family properties.
The Act came into force on 1080 21st December, 1956.
On 9.8.1968 she took Pandurang, the 1st respondent, in adoption and immediately thereafter a suit was filed by Pandurang and Champabai in Regular Civil Suit No. 457 of 1968 on the file of the Civil Judge, Junior Division, Barsi for partition and separate possession of one half share in the properties of the joint family of which Dharma, the appellant herein, and Miragu were coparceners.
Before the said adoption took place, two items of the joint family properties had been sold in favour of Defendant Nos. 3 and 17 for consideration.
Champabai had instituted a suit for maintenance against Dharma and obtained a decree for maintenance.
Dharma resisted the suit on the ground that Pandurang was not entitled to claim any share in the properties which originally belonged to the joint family in view of clause (c) of the proviso to section 12 of the Act and the properties which had been sold by him in favour of third parties could not in any event be the subject matter of the partition suit.
The Trial Court dismissed the suit.
Pandurang and Champabai filed an appeal against the decree of the Trial Court before the District Court, Sholapur in Civil Appeal No. 222 of 1970.
The learned District Judge allowed the appeal and passed a preliminary decree for partition in favour of Pandurang and Champabai and separate possession of one half share of the joint family properties except the two fields which had been sold earlier in favour of third parties.
Aggrieved by the decree of the District Judge, the appellant filed an appeal before the High Court of Bombay in Second Appeal No. 663 of 1971.
The High Court affirmed the decree passed by the learned District Judge following the decision of that Court in Y.K. Nalavade and Others vs Anand G. Chavan and Others, A.I.R. 1981 Bombay 109 in which it had been held that clause (c) of the proviso to section 12 of the Act was not a bar to such a suit for partition.
This appeal by special leave is filed by the appellant against the judgment of the High Court of Bombay.
The only question urged on behalf of the appellant before us is that the suit for partition should have been dismissed by the High Court as the 1st respondent Pandurang could not divest Dharma the appellant of any part of the estate which had been vested in him before the adoption in view of clause (c) of the proviso to section 12 of the Act.
Section 12 of the Act reads thus: 12.
An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be 1081 deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) The adopted child shall not divest any person of any estate which vested in him or her before the adoption.
" It is argued that Pandurang became the child of the adoptive mother for all purposes with effect from the date of the adoption and only from that date all the ties of Pandurang in the family of his birth should be deemed to have been severed and replaced by those created by the adoption in the adoptive family and, therefore, Pandurang, the adopted son could not claim a share in the joint family properties which had devolved on the appellant by survivorship on the death of Miragu.
In support of this contention the appellant relied upon the decision of this Court in Sawan Ram & Others vs Kala Wanti & Others, ; The facts involved in that case were these.
A widow, whose husband had died before the Hindu Succession Act came into force, adopted the second respondent in that case after the commencement of the Act.
On the widow 's death the appellant in that case, claiming to be the nearest reversioner of her husband, filed a suit challenging the adoption.
The Trial Court dismissed the suit and the decree of the Trial Court was affirmed by the High Court.
Against the decree of the High Court the appellant therein filed an appeal by special leave before this Court.
In that appeal, the appellant contended that (i) the adoption was invalid under clause (ii) of section 6 read with section 9(2) of the Act as the son was given in adoption by his mother, even though the father was alive, and (ii) since under the Act an independent right of adoption had been given to Hindu female, if a widow adopted a son, he could become the adopted son of the widow only and could not be considered to be the son of her deceased husband also.
This Court negatived both the contentions.
We are not 1082 concerned with the first ground for purposes of this case.
On the second contention this Court held that the provision in section 12 of the Act made it clear that the adopted son of a Hindu female, who had been married, was in fact the adopted son of her husband also.
That decision was sufficient to dismiss the suit filed by the appellant as the adopted son in that case being the nearest heir was entitled to claim the properties involved in the suit to the exclusion of the appellant therein who was a more distant heir was not, therefore, entitled to lay claim to any part of the suit properties.
In the course of the said decision a decision of the Andhra Pradesh High Court in Narra Hanumantha Rao vs Narra Hanumayya and Others, [1964] 1 Andhra Weekly Reporter 156 I.L.R. had been cited before this Court.
In that case the High Court of Andhra Pradesh had taken the view that clause (c) of the proviso to section 12 of the Act laid down explicity that the adoption of a son or daughter by a male or female Hindu was not to result in the divesting of any estate vested in any person prior to the adoption and that clause (c) also applied to the interest which passed on by survivorship on the death of a coparcener to the remaining coparceners.
As pointed out earlier the said question did not actually arise in the appeal before this Court.
This Court, however, observed as follows: "It may, however, be mentioned that the conclusion which we have arrived at does not indicate that the ultimate decision given by the Andhra Pradesh High Court was in any way incorrect.
As we have mentioned earlier, the question in that case was whether E, after the adoption by D, the widow of B, could divest C of the rights which had already vested in C before the adoption.
It is significant that by the year 1936 C was the sole male member of the Hindu joint family which owned the disputed property.
B died in the year 1924 and A died in 1936.
By that time, the Hindu Women 's Rights to Property Act had not been enacted and consequently, C, as the sole male survivor of the family became full owner of that property.
In these circumstances, it was clear that after the adoption of E by D, E could not divest C of the rights already vested in him in view of the special provisions contained in clause (c) of the proviso to section 12 of the Act.
It appears that, by making such a provision, the Act has narrowed down the rights of an adopted child as compared with the rights of a child born posthumously.
Under the Shastriclaw, if a child was adopted by a widow, he was treated as a natural born child 1083 and, consequently, he could divest other members of the family of rights vested in them prior to his adoption.
It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in clause (c) of the proviso to section 12, and section 13 of the Act were incorporated.
In that respect, the rights of the adopted child were restricted.
It is to be noted that this restriction was placed on the rights of a child adopted by either a male Hindu or a female Hindu and not merely in a case of adoption by a female Hindu.
This restriction on the rights of the adopted child cannot, therefore, in our opinion, lead to any inference that a child adopted by a widow will not be deemed to be the adopted son of her deceased husband.
The second ground taken on behalf of the appellant also, therefore, fails.
" It is no doubt true that the above observations appear to support a case of the appellant but since we are of the view that these observations were not necessary for deciding the case which was before the Court they have to be held obiter dicta.
In Sitabai & Anr.
vs Ram Chandra, ; which was again decided by a bench of three Judges, this Court was called upon to decide a case which was more or less similar to the one before us.
In that case the facts were these.
Two brothers were in possession of ancestral properties consisting of a house and tenancy rights of an ordinary tenant in agricultural lands.
The elder brother died in 1930 leaving a widow, the first appellant therein.
The first appellant continued to live with the younger brother and had an illegitimate son by him, the respondent therein.
In March, 1958, she adopted the second appellant, and some time later, the surviving brother died.
After his putative father died, the respondent who was the illegitimate son took possession of all the joint family properties.
The two appellants thereupon filed a suit for ejectment.
The Trial Court decreed the suit.
The first appellate court held that a will executed by the respondent 's father (the younger brother) was valid in so far as his half share in the house was concerned and, therefore, modified the decree by granting a half share of the house to the respondent.
In second appeal, the High Court held that the appellants were not entitled to any relief and that their suit should be dismissed on two grounds, namely, (i) the joint family properties ceased to have that character in the hands of the surviving brother when he became the sole surviving coparcener, and (2) the second appellant did not become, on his adoption, a copar 1084 cener with his uncle in the joint family properties.
In this Court the appellants in that appeal questioned both the conclusions reached by the High Court.
On the first contention, this Court held that the joint family properties continued to retain their character in the hands of the surviving brother, as the widow (the first appellant) of the elder brother was still alive and continued to enjoy the right of maintenance out of the joint family properties following the decision of this Court in Gowli Buddanna vs Commissioner of Income Tax, Mysore, Bangalore; , On the second contention this Court held that the scheme of sections 11 and 12 of the Act was that in the case of adoption by a widow the adopted child became absorbed in the adoptive family to which the widow belonged.
It further observed that though section 14 of the Act did not expressly state that the child adopted by a widow became the adopted son of her deceased husband, it was a necessary implication of sections 12 and 14 of the Act and that was why section 14 of the Act provided that when a widow adopted a child and subsequently married, that husband became the step father of the adopted child.
Therefore, when the second appellant was adopted by the first appellant he became the adopted son of the first appellant and her deceased husband, namely, the elder brother, and hence became a coparcener with the surviving brother in the joint family properties, and after the death of the surviving brother the second appellant became the sole surviving coparcener entitled to the possession of all the joint family properties except those bequeathed under the will, that is, except the half share of the house.
Applying the above decision it has to be held in the case before us that the joint family properties which belonged to the joint family consisting of Dharma the appellant and his brother Miragu continued to retain the character of joint family properties in the hands of Dharma the appellant as Champabai, the widow of Miragu was still alive and continued to enjoy the right of maintenance out of the said joint family properties.
It should also be held that Pandurang the 1st respondent on adoption became the adopted son of Miragu and became a coparcener with Dharma the appellant in the joint family properties.
When once he became a member of the coparcenary which owned the joint family properties he was entitled to institute a suit for partition and separate possession of his one half share in the joint family properties, of course, except those which had been alienated in favour of third parties before the adoption by Dharma the appellant.
The effect of section 12 of the Act again came up for consideration before this Court in Vasant and Another vs Dattu and Others, A.I.R. 1987 S.C. 399.
In that case interpreting clause (c) to the proviso 1085 of section 12 of the Act Chinnappa Reddy, J. who spoke for the Court observed that in a case of this nature where the joint family properties had passed on to the hands of the remaining members of the coparcenary on the death of one of the coparceners no vesting of the property actually took place in the remaining coparceners while their share in the joint family properties might have increased on the death of one of the coparceners which was bound to decrease on the introduction of one more member into the family either by birth or by adoption.
In the above connection, the Court observed thus: "4.
We are concerned with proviso (c) to section 12.
The introduction of a member into a joint family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of the joint family, but it certainly does not involve any question of divesting any person of any estate vested in him.
The joint family continues to hold the estate, but, with more members than before.
There is no fresh vesting or divesting of the estate in anyone.
The learned Counsel for the appellants urged that on the death of a member of a joint family the property must be considered to have vested in the remaining members by survivorship.
It is not possible to agree with this argument.
The property, no doubt passes by survivorship, but there is no question of any vesting or divesting in the sense contemplated by section 12 of the Act.
To interpret section 12 to include cases of devolution by survivorship on the death of a member of the joint family would be to deny any practical effect to the adoption made by the widow of a member of the joint family.
We do not think that such a result was in the contemplation of Parliament at all.
" We respectfully agree with the above observations of this Court in Vasant 's case (supra).
The joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener.
If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son.
The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary pro 1086 perty as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property.
If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alientation cannot object to alientations made before he was begotten or adopted.
The decision of the High Court of Bombay in Y.K. Nalavade 's case (supra) which was followed by the High Court in dismissing the appeal, out of which the present appeal arises, has been rightly given.
We agree with the reasons given by the High Court of Bombay in that decision for taking the view that clause (c) to proviso of section 12 of the Act would not be attracted to a case of this nature since as observed by this Court in Vasant 's case (supra) there was no 'vesting ' of joint family property in Dharma the appellant took place on the death of Miragu and no 'divesting ' or property took place when Pandurang the first respondent was adopted.
The decision of the Andhra Pradesh High Court in Narra Hanumantha Rao 's case (supra) which takes a contrary view is not approved by us.
It, therefore, stands overruled.
The joint family properties continued to remain in the hands of Dharma the appellant as joint family properties and that on his adoption Pandurang the 1st respondent became a member of the coparcenary entitled to claim one half share in them except those items which had been sold by Dharma the appellant.
In the result this appeal fails and it is dismissed.
There is no order as to costs.
H.S.K. Appeal dismissed.

summary:
% A person had two sons, the appellant Dharma and another Miragu.
Miragu died issueless in 1928 leaving behind his widow, respondent No. 2.
The Joint family property devolved on the appellant as sole surviving coparcener.
The appellant disposed of certain properties.
In 1956 the came into force.
In 1968 the widow took respondent No. 1 in adoption.
Respondent Nos. 1 and 2 filed a suit for partition and separate possession of one half share in the property of the joint family.
Trial Court dismissed the suit.
Respondent Nos. 1 and 2 filed an appeal which was allowed by the District Judge and a preliminary decree for partition and separate possession was passed.
The appellant filed an appeal before the High Court and the High Court affirmed the decree passed by the District Judge.
Hence this appeal by special leave.
The contention of the appellant was that respondent No. 1 could not divest him of any part of the estate which had been vested in him before the adoption of respondent No. 1 in view of clause (c) of the proviso to section 12 of the Act.
Dismissing the appeal, this Court, ^ HELD: The Joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener.
1078 If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son.
The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparceners in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property.
If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alienation cannot object to alienations made before he was begotten or adopted.
[1085G H; 1086A C] In the instant case the joint family properties which belonged to the joint family consisting of Dharma the appellant and his brother Miragu continued to retain the character of joint family properties in the hands of Dharma the appellant as Champabai, the widow of Miragu was still alive and continued to enjoy the right of maintenance out of the said joint family properties.
Pandurang the 1st respondent on adoption became the adopted son of Miragu and became a coparcener with Dharma the appellant in the joint family properties.
When once he became a member of the coparcenary which owned the joint family properties he was entitled to institute a suit for partition and separate possession of his one half share in the joint family properties, of course, except those which had been alienated in favour of third parties before the adoption by Dharma the appellant.
[1084E G] Clause (c) to proviso of section 12 of the Act would not be attracted in the instant case since there was no 'vesting ' of joint family property in Dharma the appellant which took place on the death of Miragu and no 'divesting ' of property took place when Pandurang the first respondent was adopted.
[1086D E] The Joint family properties continued to remain in the hands of Dharma the appellant as joint family properties and that on his adoption Pandurang the 1st respondent became a member of the coparce 1079 nary entitled to claim one half share in them except those items which had been sold by Dharma the appellant.
[1086F] Y.K. Nalavade and Ors.
vs Anand G. Chavan and Ors., A.I.R. 1981 Bombay 109, approved.
Sawan Ram & Ors.
vs Kala Wanti & Ors., [1967] 3 S.C.R. 687; Sitabai and Anr.
vs Ram Chandra, ; , referred to.
Narra Hanumantha Rao vs Narra Hanumayya and Ors., [1964] 1 Andhra Weekly Reporter 156 I.L.R. , overruled.
Gowli Buddanna vs Commissioner of Income Tax, Mysore Bangalore, ; ; Vasant and Anr.
vs Dattu and Ors., A.I.R. 1987 S.C. 399, followed.


judgement:
ition (Civil) No. 107 of 1988.
(Under Article 32 of the Constitution of India) Dr. Y.S. Chitale, Dr. N.M. Ghatate and S.V. Deshpande for the Petitioner.
Kuldeep Singh, Additional Solicitor General, Soli J. Sorabjee, Parimal K. Shroff, P.H. Parekh, Sanjay Bhartari and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This writ petition was disposed of by our Order dated 1st of February, 1988, we indicated therein that we will give our reasons shortly.
This we do by this judgment.
The Writ Petition No. 107 of 1988 is a petition under Article 32 of the Constitution.
The petitioner is a practising advocate of the Bombay High Court.
He approached this Court by means of the petition under Article 32 of the Constitution for issue of a writ in the nature of Prohibition or any other appropriate order restraining the respondents, namely, the Union of India, the Director General of Doordarshan, New Delhi, Blaze Advertising Pvt. Ltd. and Govind Nehalani, being the producer from telecasting or screening the serial titled "Tamas" and to enforce petitioner 's fundamental rights under Articles 21 and 25 of the Constitution and declaring the screening or televising of "Tamas" as violative of section 5B of the .
One Javed Ahmed Siddique filed a writ petition in the High Court of Bombay being Writ Petition No. 201 of 1988.
The same came up before a learned single Judge of the High Court of Bombay who while admitting the same on 21st of January, 1988 had granted stay of further telecasting of the said serial on T.V. till further orders.
The respondents herein challenged the said order before the Division Bench of the Bombay High Court.
The two learned Judges, namely, 1015 Justice Lentin and Justice Mrs. Sujata Manohar saw the complete serial on 22nd of January, 1988 and vacated the stay by an order dated 23rd of January, 1988.
The judgment is impugned in the special leave petition which is taken on board and is also disposed of by this common judgment.
It may also be mentioned that four episodes of the said serial have already been telecast.
The petitioner states that the exhibition of the said serial is against public order and is likely to incite the people to indulge in the commission of offences and it is therefore, violative of section 5B (1) of the (hereinafter called 'the Act ') and destructive of principle embodied under Article 25 of the Constitution.
It is also contended that under section 153A of the Indian Penal Code, this presentation is likely to promote or attempts to promote, on grounds of religion, caste or community, disharmony or feelings of enmity, hatred or ill will among different religious, racial, language or regional groups or castes, or communities and is further prejudicial to the maintenance of harmony between different religious, racial, language or regional groups and incites people to participate or trains them to the use or criminal force or violence or participate in such criminal acts.
So, therefore, it is an offence under section 153A of the Indian Penal Code.
Our attention was drawn to section 153B of the Indian Penal Code and it was submitted that the serial is prejudicial to the national integration.
Serial "Tamas" depicts the Hindu Muslim tension and sikhmuslim tension before the partition of India.
It further shows how the killings and looting took place between these communities before the pre independence at Lahore.
"Tamas" is based on a book written by Sree Bhisham Sahni.
It depicts the period prior to partition and how communal violence was generated by fundamentalists and extremists in both communities and how innocent persons were duped into serving the ulterior purpose of fundamentalists and communities of both sides and how an innocent boy is seduced to violence resulting in his harming both communities.
It further shows how extremist elements in both communities infused tension and hatred for their own ends.
That is how the two learned Judges of the High Court of Bombay mentioned hereinbefore have viewed it.
They have also seen that realisation ultimately dawns as to the futility of it all and finally how inherent goodness in human mind triumphs and both communities learn to live in amity.
They saw that the people learnt this lesson in a hard way.
This is the opinion expressed by two experienced Judges of the High Court after viewing the serial.
1016 The location of the story is Lahore.
The period is just before independence.
The very introductory part of the serial which was tele cast on 9th of January, 1988 displayed that the idea and message behind the serial is to keep people away from getting involved in such violence arising out of communal animosity.
By telecasting it on Doordarshan, Dr. Chitale appearing for the petitioner said, now seen by vast majority of people, the said serial is exposed to person of all ages, who will fail to grasp the message if any behind the serial.
The very first serial, according to the petitioner, depicts one person who is reported to be a member of Scheduled Caste from the Hindu community being asked by one Thekedar to get a pig killed and bring its dead body in order to serve the meal for an English man.
The dead body is shown to be axed and collected by one person named 'Kalu ' who is represented to be a Christian.
Kalu gets a dead pig from the said member of the Scheduled Caste Hindu who killed it.
That dead pig is shown to be found at the door steps of a mosque.
This, according to the petitioner, was provocative and was bound to result in instigation in Hindus against Muslims and consequently to rouse Muslim anger resulting in some reaction on the part of the Muslims, which in its own turn is bound to have reaction by way of some acts of violence on the part of Hindus.
According to the petitioner, the total result would be that there is likelihood that members of both the communities will rise in passion and anger against each other and take to acts which would lead to communal violence and riots.
The petitioner further states that in the first episode shown on 9th January, 1988 one elderly Hindu who is depicted as a 'Guru ', a preceptor, and is shown as giving inspiration/advice and instigation to a young boy to practise violence, to begin with, by asking the boy to cut the throat of the hen, and when the boy gets nervous and shows his unwillingness and unpreparedness, the Guru warns him that unless he showed his courage to kill a hen to begin with, how can he become bold and courageous to kill his enemy.
The petitioner further alleges that in the background of this incident and in context of what precedes and succeeds this incident between the Guru and the boy, it is clear that Guru has instigated the boy to get into the trend of thought and feeling to be ready to commit violence against his enemies, in oreder to kill them, and on viewing the first part of the said serial as a whole this instigation is to Hindu young boys to take to violence against Muslims.
This is nothing but promoting feelings of enmity and hatred between Hindus and Muslims.
The petitioner further states that in the first serial the dialogue 1017 between the Hindu leaders and Muslim leaders is so arranged that Indian National Congress is suggested to be a Hindu Organisation.
In the present background, therefore, the petitioner claims that the exhibition of said serial is likely to create communal disharmony.
"Tamas" had been given 'U ' certificate by the Central Board of Film Censor.
In this connection we may refer to the relevant provisions of the , which is an Act to make provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematograph.
Section 3 of the Act provides for Board of Film Censors.
Section 4 of the Act provides for examination of films.
A film is examined in the first instance by an Examining Committee under section 4A and, in certain circumstances, it is further examined by a Revising Committee under section 5.
Members of both the Committees are expected to set out not only their recommendations but also the reasons therefore in cases where there is difference of opinion amongst the members of the Committee.
Section 5A of the Act provides that if after examining a film or having it examined in the prescribed manner, the Board considers that the film is suitable for unrestricted public exhibition, such a certificate is given which is called 'U ' certificate.
Section 5B of the Act provides for guidance in certifying films.
The said section 5B provides as follows: "5 B. Principles for guidance in certifying films (1) A film shall not be entitled for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of (the sovereignty and integrity of India) the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of Court or is likely to incite the commission of any offence.
(2) Subject to the provisions contained in subsection (1) the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.
" Section 5C of the provides for the constitution of Appellate Tribunals, consisting of persons who are familiar with the social, cultural or political institutions of India, have special knowledge of the various regions of India and also special knowledge of films and their impact on society, to hear appeals from the orders of 1018 the Censor Board.
Under section 5D, as it stands at present, the Tribunal can hear appeals by persons who, having applied for a certificate in respect of a film, are aggrieved by an order of the Board refusing to grant a certificate or granting a restricted certificate or directing the appellant to carry out certain excisions or modifications in the film.
In addition, there is also an overall revisional power in the Central Government to call for the record of any proceeding in relation to any film at any stage, where it is not made the subject matter of appeal to the Appellate Tribunal, to enquire into the matter and make such order in relation thereto as it thinks fit, including a direction that the exhibition of the film should be suspended for a period not exceeding two months.
Under the newly added sub section 5 of section 6, the Central Government has also been given revisional power in respect of a film certificated by the Appellate Tribunal on the ground that it is necessary to pass an order in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or decency or morality.
Learned Additional Solicitor General, Shri Kuldeep Singh, for the Central Government, strongly urged before us that the film should be allowed to be exhibited.
As a matter of fact in his enthusiasm, he submitted that there should be an order to the Government to exhibit the film again and again.
He urged that all the appropriate authorities have considered the film and Doordarshan authorities have also independently examined this question.
It has to be borne in mind that there is no allegation of any mala fide or bad motive on the part of the authorities concerned.
The only question, therefore, is whether the film has been misjudged or wrongly judged and allowed to be exhibited or serialised in T.V. on a wrong approach.
This film indubitably depicts violence.
That violence between the communities took place before the pre partition days is a fact and it is the truth.
Dr. Chitale, however, submits that truth in its naked form may not always and in all circumstances be desirable to be told or exhibited.
During the course of the arguments before us on the 1st of February, 1988 our attention was drawn to an item in the Hindustan Times of that day which contained an interview with the author Sree Bhisham Sahni.
Strictly speaking such evidence is not admissible but since it is a matter of public interest, we have looked into it.
The author has received the Sahitya Akademi award for this novel.
It was written in 1974.
The book is being taught in various universities.
There has been no adverse reaction to the novel during the past fourteen years.
The author further said "certain nuances which were, however, 1019 clear in the book are not so in the serial".
The author has drawn attention to the incident that the mischief of getting a pig slaughtered and having it placed outside a mosque, was done by a character referred to as "Chaudhuri" in the film.
In the novel his full name is mentioned as Murad Ali, which is obviously not a Hindu name, according to the author.
Vivian Bose, J. as he then was in the Nagpur High Court in the case of Bhagwati Charan Shukla vs Provincial Government, A.I.R. 1947 Nagpur 1 has indicated the yardstick by which this question has to be judged.
There at page 18 of the report the Court observed that the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.
This in our opinion, is the correct approach in judging the effect of exhibition of a film or of reading a book.
It is the standard of ordinary reasonable man or as they say in English law "the man on the top of a clapham omnibus".
This question came to be examined by this Court from a different angle in the case of K.A. Abbas vs The Union of India and another; , There K.A. Abbas the petitioner made a documentary film called "A Tale of Four Cities", which attempted to portray the contrast between the life of the rich and the poor in the four principal cities of the country.
The film included certain shots of the red light district in Bombay.
Although the petitioner applied to the Board of Film Censors for a "U" Certificate for unrestricted exhibition of the film, he was granted a certificate only for exhibition restricted to adults.
The petitioner then filed the writ petition in this Court.
At the hearing of the petition the Central Government indicated that it had decided to grant a 'U ' certificate to the petitioner 's film without the cuts previously ordered.
Hidayatullah C.J. has exhaustively dealt with the question and noted the statutory requirements.
In that film there was a scanning shot of a very short duration, much blurred by the movement of the photographer 's camera, in the words of Chief Justice, in which the red light district of Bombay was shown with the inmates of the brothels waiting at the doors or windows.
Some of them wore abbreviated skirts showing bare legs up to the knees and sometimes a short above them.
This was objected to.
The film was shown to the learned Judges in the presence of the lawyers.
The learned Chief Justice at page 468 of the report addressed himself to the question: "How far can these restrictions go and how are these to be imposed".
The Court examined the provisions of Sec 1020 tion 5B(2) of the Act.
After examining the relevant provisions and large number of authorities, the Chief Justice noted that the task of the censor was extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination.
Chief Justice at page 474 of the report observed as follows: "Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral.
It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal.
This draws in the censors scissors.
Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother.
When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes.
No one after viewing these episodes would think that patricide or incest with one 's own mother is permissible or suicide in such circumstances or tearing out one 's own eyes is a natural consequence.
And yet if one goes by the letter of the directions the film cannot be shown.
Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection.
If that were so Varrier Elwyn 's Phulmat of the Hills or the same episode in Henryson 's Testament of Cresseid (from where Verrier Elwyn borrowed the idea) would never see the light of the day.
Again carnage and bloodshed may have historical value and the depiction of such scenes as the sack of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila.
If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical theme without true history? Rape in all its nakedness may be objectionable but Voltaire 's Candide would be meaningless without Cunegonde 's episode with the soldier and the story of Lucrece could never be depicted on the screen." (emphasis supplied) Chief Justice observed that our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.
The standards that we set for our censors must 1021 make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.
We must not look upon such human relationship as banned in toto and for ever from human thought and must give scope for talent to put them before society.
In our scheme of things, the Chief Justice noted, ideas having redeeming social or artistic value must also have importance and protection for their growth.
Our attention was also drawn by Dr. Chitale to the decision of this Court in Ebrahim Sulaiman Sait vs M.C. Muhammad and another; , , where Gupta, J. speaking for the Court observed that truth was not an answer to a charge of corrupt practice under section 123(3A) of the said Act; what was relevant was whether the speech promoted or sought to promote feelings of enmity or hatred as mentioned in that provision.
But the likelihood must be judged from healthy and reasonable standards.
The question was again considered by this Court in Rajkapoor vs Laxman, ; This Court reiterated that the Penal Code is general and the is special.
The scheme of the is deliberately drawn up to meet the explosively expanding cinema menace if it were not strictly policed.
No doubt, the cinema is a great instrument for public good if geared to social ends and can be a public curse if directed to anti social objectives.
The decision reiterated that a balance has to be struck.
On the evidence available before this Court it appears that a balance has been struck.
Dr. Chitale emphasised that in an interview with the author, the author said that "Tamas" was not a historical novel.
It merely takes into account certain events from history and builds upon them.
He further said that life provided the raw material and a writer moulded it according to his imagination and perception of reality.
We have given full thought to the contentions urged on behalf of the petitioner and come to the conclusion that these contentions cannot be accepted for two reasons.
Firstly, as we have already pointed out, the itself contains several provisions to ensure the fulfilment of the conditions laid down in section 5B and to ensure that any film which is likely to offend the religious suspectibilities of the people are not screened for public exhibition.
In the present case the Film Censor Board has approved the exhibition of the film.
That apart we are informed that the Doordarshan authorities also 1022 scrutinise a film before it is exhibited on the television screen.
Though we do not have the details of the authority or body which scrutinised the film for purposes of exhibition on the television, the procedure does involve further examination of the film from standards of public acceptability before it is shown on the television.
It is true that the remedy of an approach to the Appellate Tribunal is available only to persons aggrieved by the refusal of the Board to grant a certificate or the cuts and modifications proposed by it.
It is for the consideration of the Central Government whether the scope of this section should be expanded to permit appeals to the Tribunals even by persons who are aggrieved by the grant of certificate of exhibition to a film on the ground that the principles laid down for the grant of certificates in section 5B have not been fulfilled.
But, even on the statute as it presently stands, the procedure for grant of certificate of exhibition to a film is quite elaborate and the unanimous approval by the examining Committee must be given full weight.
As pointed out by Krishna Iyer, J. in the Rajkapoor case (supra), a Court would be slow to interfere with the conclusion of a body specially constituted for this purpose.
Secondly, in this case we have the advantage of the views of two experienced Judges of one of the premier High Courts of this country.
The learned Judges found that the message of the film was good.
They have stated that the film shows how realisation ultimately dawns as to futlity of violence and hatred, and how the inherent goodness in human nature triumphs.
Dr. Chitale submitted that the Judges have viewed the film from their point of view but the average persons in the country are not as sober and experienced as Judges of the High Court.
But the Judges of the High Court of Bombay have viewed it, as they said, from the point of view of "how the average person for whom the film is intended will view it" and the learned Judges have come to the conclusion that the average person will learn from the mistakes of the past and realise the machinations of the fundamentalists and will not perhaps commit those mistakes again.
The learned Judges further observed that illiterates are not devoid of common sense, or unable to grasp the calumny of the fundamentalists and extremists when it is brought home to them in action on the screen.
This is how they have viewed it: those who forget history are condemned to repeat it.
It is out of the tragic experience of the past that we can fashion our present in a rational and reasonable manner and view out future with wisdom and care.
Awareness in proper light is a first step towards that realisation.
It is true that in certain circumstances truth has to be avoided.
Tamas takes us to a historical past unpleasant at times, but revealing and instructive.
In those years which Tamas depicts a human tragedy 1023 of great diminsion took place in this sub continent though 40 years ago it has left a lasting damage to the Indian psyche.
It has been said by Lord Morley in "On Compromise" that it makes all the difference in the world whether you put truth in the first place or in the second place.
It is true that a writer or a preacher should cling to truth and right, if the very heavens fall.
This is a universally accepted basis.
Yet in practice, all schools alike are forced to admit the necessity of a measure or accommodation in the very interests of truth itself.
Fanatic is a name of such ill repute, exactly because one who deserves to be so called injuries good causes by refusing timely and harmless concession; by irrigating projudices that a wiser way of urging his own opinion might have turned aside; by making no allowances, respecting no motives, and recognising none of those qualifying principles that are nothing less than necessary to make his own principles true and fitting in a given society.
Judged by all standards of a common man 's point of view of presenting history with a lesson in this film, these boundaries appear to us could have been kept in mind.
This is also the lesson of history that naked truth in all times will not be beneficial but truth in its proper light indicating the evils and the consequences of those evils is instructive and that message is there in "Tamas" according to the views expressed by the two learned Judges of the High Court.
They viewed it from an average, healthy and commonsense point of view.
That is the yardstick.
There cannot be any apprehension that it is likely to affect public order or it is likely to incite into the commission of any offence.
On the other hand, it is more likely that it will prevent incitement to such offences in future by extremists and fundamentalists.
Dr. Chitale, relying strongly on certain observations in Abbas ' case (supra, at p. 459 of the reports) contended that there was real danger of the film in this case inciting people to violence and to commit other offences arising out of communal disharmony.
It is no doubt true that the motion picture is a powerful instrument with a much stronger impact on the visual and aural senses of the spectators than any other medium of communications; likewise, it is also true that the television, the range of which has vastly developed in our country in the past few years, now reaches out to the remotest corners of the country catering to the not so sophisticated, literary or educated masses of people living in distant villages.
But the argument overlooks that the potency of the motion picture is as much for good as for evil.
If some scenes of violence, some nuances of expression or some events in the film can stir up certain feelings in the spectator, an equally deep strong, lasting and beneficial impression can be conveyed by scenes revealing the machinations of selfish interests, scenes depicting mutual 1024 respect and tolerance, scenes showing comradeship, help and kindness which transcend the barriers of religion.
Unfortunately, modern development both in the field of cinema as well as in the field of national and international politics have rendered it inevitable for people to face the realities of internecine conflicts, inter alia, in the name of religion.
Even contemporary news bulletins very often carry scenes of pitched battle or violence.
What is necessary sometimes is to penetrate behind the scenes and analyse the causes of such conflicts.
The attempt of the author in this film is to draw a lesson from our country 's past history, expose the motives of persons who operate behind the scenes to generate and foment conflicts and to emphasise the desire of persons to live in amity and the need for them to rise above religious barriers and treat one another with kindness, sympathy and affection.
It is possible only for a motion picture to convey such a message in depth and if it is able to do this, it will be an achievement of great social value.
In the present case the finding of the learned Judges of Bombay High Court is that the picture viewed in its entirety is capable of creating a lasting impression of this message of peace and co existence and that people are not likely to be obsessed, overwhelmed or carried away by the scenes of violence or fanaticism shown in the film.
We see no reason to differ from this conclusion.
Before we conclude we note that the petition was based on alleged violation of Articles 21 and 25 of the Constitution.
We. are unable to see any alleged violation of those articles.
We, however accept the position that the petitioner has a right to draw attention of this Court to ensure that the communal atmosphere is kept clean and unpolluted.
He has done well to draw attention to this danger.
We have examined and found that there is no such danger and the respondents have not acted improperly or imprudently.
In the aforesaid view of the matter this petition under Article 32 of the Constitution fails and is accordingly dismissed.
Similarly, on similar grounds the special leave petition arising out of the judgment and order of the Bombay High Court dated 23rd January, 1988 in Appeal No. 96/88 is also dismissed.
In the facts and circumstances of the case, there will be no order as to costs.
R.S.S. Petition dismissed.

summary:
% The Serial titled "Tamas", based on a book written by Sree Bhisham Sahni, was being screened on the T.V. Four of its episodes had already been shown when the petitioner moved this Court under Article 32 of the Constitution for a writ of prohibition and any other appropriate writ restraining its further screening and to enforce petitioner 's fundamental rights under Articles 21 and 25 and for declaring the screening or televising of "Tamas" as violative of section 5B of the .
Earlier, a writ had been admitted in the High Court of Bombay and a single learned Judge granted interim stay.
On appeal, the Division Bench, after seeing the complete serial, vacated the stay.
Special leave petition has been filed against that judgment.
Serial `Tamas ' takes us to a historical past unpleasant at times, but revealing and instructive.
In those years which `Tamas ' depicts, a human tragedy of great dimension took place in this sub continent though 40 years ago which has left a lasting damage to the Indian psyche.
`Tamas ' depicts the Hindu Muslim and Sikh Muslim tension before the partition of India and the killings and looting that took place.
According to the Division Bench of the High Court, the serial inter alia depicts how communal violence was generated by fundamentalists and extremists in both communities, how innocent persons were duped into serving the ulterior purpose of fundamentalists, and how extremist ele 1012 ments infused tension and hatred for their own ends.
The petitioner 's contentions are: (1) The exhibition of the serial is against public order and is likely to incite the people to indulge in the commission of offences and is therefore violative of section 5B(1) of the and destructive of principles embodied under Article 25; (2) Its presentation is likely to promote feelings of enmity, hatred or ill will among different religious groups and is prejudicial to communal harmony and national integration, and is therefore an offence under section 153A of the Indian Penal Code; (3) Events have been depicted and characters portrayed in a manner that would provoke and instigate people of all ages exposed to it, who will fail to grasp the message if any behind the serial; (4) Truth in its naked form may not always and in all circumstances be desirable to be told or exhibited, and (5) The Judges of the High Court have viewed the film from their own point of view but the average persons in the country are not as sober and experienced as the Judges of the High Court.
The respondents on the other hand, urge that all the appropriate authorities have considered the film suitable for unrestricted public exhibition and the only question is whether the film has been misjudged or wrongly judged and allowed to be exhibited or serialised on a wrong approach.
This film indubitably depicts violence.
That violence between the communities took place before the pre partition days is a fact and it is the truth.
Dismissing the petitions, this Court, ^ HELD: (1) The itself contains several provisions to ensure the fulfilment of the conditions laid down in section 5B, and also to ensure that any film which is likely to offend the religious susceptibilities of the people is not screened for public exhibition.
[1021G H] (2) On the aforesaid statute, as it presently stands, the procedure for grant of certificate of exhibition to a film is quite elaborate, and the unanimous approval by the examining committee must be given full weight and the Court would be slow to interfere with the conclusion of a body specially constituted for this purpose.
[1022C D] (3) The correct approach in judging the effect of exhibition of a film or of reading a book is to judge from the standards of ordinary reasonable man.
[1019C D] 1013 (4) The two learned Judges viewed the film from the point of view of "how the average person for whom the film is intended will view it.
" They have found that the message of the picture was good, and have come to the conclusion that the average person will learn from the mistakes of the past and realise the machination of the fundamentalists as the film itself shows how realisation ultimately dawns as to the futility of violence and hatred and how the inherent goodness in human nature triumphs.
In their view, those who forget history are condemned to repeat it.
It is out of tragic experience of the past that we can fashion our present in a rational and reasonable manner and view our future with wisdom and care.
Awareness in proper light is a first step towards the realisation.
[1022F H] (5) The finding of the Division Bench of the Bombay High Court is that the picture viewed in its entirely, is capable of creating a lasting impression of the message of peace and co existence, and that people are not likely to be obsessed, overwhelmed or carried away by the scenes of violence or fanaticism shown in the film.
This Court sees no reason to differ from the conclusion.
[1024D] (6) It is the lesson of history that naked truth in all times will not be beneficial but truth in its proper light indicating the evils and the consequences of those evils is instructive and that message is there in `Tamas '.
[1023D] (7) It is true that a writer or a preacher should cling to truth and right, if the very heavens fall.
This is a universally accepted basis.
Yet in practice all schools alike are forced to admit the necessity of a measure of accommodation in the very interests of truth itself.
[1023B] (8) Judged by all standards of a common man 's point of view of presenting history with a lesson in this film, these boundaries appear to have been kept in mind.
[1023C D] (9) The Court is unable to see any alleged violation of Articles 21 and 25 of the Constitution.
The position that the petitioner has a right to draw attention of this Court to ensure that the communal atmosphere is kept clean and unpolluted, is accepted.
He has done well to draw attention to this danger.
This Court has examined and found that there is no such danger and the respondents have not acted improperly or imprudently.
[1024E F] Bhagwati Charan Shukla vs Provincial Government, A.I.R. 1947 1014 Nagpur 1; K.A. Abbas vs The Union of India and Another, ; ; Ebrahim Sulaiman Sait vs M.C. Muhammad and Anr., ; and Rajkapoor vs Laxman, ; , referred to.