TaxTMI 
TaxTMI 
2015 (3) TMI 896
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....mn resolve of the people of the country to secure liberty of thought, expression, belief, faith and worship. As part of fundamental rights, freedom of speech and expression occupies a very important place in the list of rights of a citizen. Such rights are guaranteed under article 19(1) (a) of the Constitution and can be curtailed only by law providing for a reasonable restriction on one of the grounds mentioned in article 19(2) of the Constitution. Such rights are considered sacrosanct and zealously guarded by the courts of the country. 3. The brief preamble was necessary because in this petition we are concerned with a delicate issue which needs to be handled with a degree of sensitivity. At the center of controversy is a question of tax concession the State refused to grant to a film on the ground that the film is based on a controversial subject of homosexuality. The short question is, does the State policy granting such concession to all Gujarati films barring those excepted in the policy itself would permit the authority to exercise such power in the present case? 4. We may record the facts. 4.1 This petition is filed by a filmmaker who has produced and directed a Gujarati....
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....lm is centered around the subject of suffering of a gay person because of ridicule by the society. The film projects his trauma and questions whether such ridicule is justified. There is not a single sexual scene in the film. It is woven around the life of Shri Manvendrasingh Gohil (a descendant of the royal family of one of the erstwhile princely State of Gujarat). 4.5 Pursuant to such letter of the petitioner, the Commissioner of Entertainment Tax conveyed his decision through letter dated May 16, 2013, sending to the petitioner transcripts of various dialogues out of which the petitioner should delete/mute highlighted dialogues and should also delete words such as, homosexual, gay and file an affidavit to that effect. The petitioner was also asked to delete english subtitles of the words to be muted. He had to file an affidavit of having taken these steps and only after such affidavit was received, his application for tax exemption would be processed further. We would take note of the portions of the film which were found objectionable by the Commissioner in the said letter at an appropriate stage. 4.6 To complete the sequence of events, we may note that on May 16, 2013, the p....
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....er 6 dated July 1, 2013 which is impugned in this petition. In such order, referring to the GR dated June 8, 1999, he referred to the following four factors which in his opinion were adverse to the petitioner and which were sufficient to deny exemption to the film:- (i) That the storyline of the film is on a subject which is unacceptable not only in the society in Gujarat but in the entire country and the world over. Though it cannot be stated that the storyline pertains to a social evil, however, the subject of homosexual relations is a controversial subject in the Indian society. It is a subject which the society avoids even discussing in open. The film promotes and supports homosexual relations. (ii) The Film Censor Board has given "A" certificate. The film cannot be watched by a family together. Though the Censor Board had directed deleting words such as, "eunuch" or "impotent" such words are not deleted. In the same breath, he also noted that such words were replaced by expression "baylo" (effeminate man). We may record that the objection that the words "eunuch" or "impotent" have not been deleted though directed by the Censor Board is not factually correct, as pointed out ....
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....granting tax exemption for other films similarly situated and denying it to this film would amount to hostile discrimination. Unless the film falls in any of the categories for which exceptions are recognized in the resolution itself, denying tax exemption would amount to violation of equal treatment. Referring to the decision of Budhen Choudhry v. State of Bihar AIR 1955 SC 191, he contended that in order to justify the classification in reference to article 14 of the Constitution, the State must demonstrate that the classification is reasonable in the sense that it distinguishes persons or things from those left out of the group and that classification has a rational nexus to the object sought to be achieved. He referred to a decision of the Supreme Court in the case of Bajaj Tempo Ltd. v. Commissioner of Income-tax[1992] 196 ITR 188 (SC) in which it was held that an incentive scheme which is framed for the growth and development of the industry must be liberally construed. Counsel also placed reliance on article 19(1)(a) of the Constitution to contend that denying tax exemption would amount to serious restriction on the petitioner's right to freedom of speech and expressio....
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....exemption scheme. Para 1 thereof provides that there shall be 100 per cent. tax exemption to all Gujarati colour films made after April 1, 1997. Paras 2 and 3 pertain to the procedure for applying for such tax exemption. Para 4 which is of paramount importance for us, provides for exclusion from such tax exemption policy and reads as under:- "4. Gujarati multi coloured films depicting evil customs, blind faith, sati, dowry and such social evils and those which are against the national unity shall not be granted tax exemption." 13. We may now advert to the portion of the film found objectionable by the Commissioner of Entertainment Tax, majority thereof pertains to dialogues by Shri Manvendrasingh Gohil. When translated they read as under:- "Namaskar, I am Manvendrasingh Gohil. Homosexuality is very normal and natural thing. As is seen in case of heterosexuality that one heterosexual man or woman has an attraction towards the opposite sex, likewise a homosexual man or woman will have attraction towards the same sex/gender. Large number of people in the society have misconception towards homosexuality. One of the biggest misconceptions of those people is when they think that most....
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...., by being with them, I communicated to them that like them, I am also a human being, having similar feelings as they have and I am no different. No offence is committed by being a gay person. On the contrary, I feel proud that I am a homosexual, a gay and have come out in the public with a feeling that I am doing a task useful for the society. I believe and I am of the opinion that those of you who are homosexuals must not have guilty conscience that you are doing anything wrong. What you feel is something normal and is a natural aspect. A man having attraction towards a man and a woman to feel that for a woman, is absolutely normal and natural. Science also proves that it is not a mental disease, then one need not get deterred. We must accept ourselves as we are and benefit always lies in acceptance. If you accept yourself as a homosexual and once one accepts oneself, you may act fearlessly in the society. One must feel pride for what one is and in that circumstance, I am of the opinion that life would be much better. I can give my own example that after having revealed myself in the public, I feel immense relief and at ease with myself Before such pronouncement, I lived a life ....
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....this point bursts out. He wished Tanmay was never bom. In yet another scene, Tanmay is talking to one girl Asmita whom perhaps he was forced to meet as the prospective bride and confesses to her that he cannot marry her because he is a gay. Asmita appreciates his honesty. 14. With this background, we may refer to the documents on record. We may recall that the Government policy is to give 100 per cent. tax exemption to all Gujarati colour films made after July 1, 1997 except those which fall in the categories mentioned in para 4 of the said G. R. Though the purpose behind this policy stated in the preamble to the G. R. is to encourage making of high quality Gujarati films with good story line, it can also be seen that granting such exemption en masse to ail Gujarati films barring those which fall in a limited area of subjects would manifest a Governmental policy of seeking to sustain Gujarati films by such tax exemption failing which it would be difficult for the local films to compete against mega Hindi film industry. The crux of the policy is thus to exempt all Gujarati colour films except those which fall in para 4 of the G. R. Exemption is thus a rule. Denial of exemptio....
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....; To our mind, none of the grounds pressed in service by the Commissioner and the conclusions based on such grounds are sufficient to deny tax exemption to the film. We may recall, the grounds of exceptions are, that the film is based on evil customs, blind faith, sati, dowry and such other social evils or is against the national unity. 19. To suggest that the subject of the film is controversial, and therefore would fall in any of the categories is simply not correct. The Commissioner committed a serious error in confusing an objectionable film from a controversial subject. If a film falls in any of the categories of exceptions, it would be a different matter altogether. But merely because the subject of the film is thought provoking, forces the viewer to come out of the comfort zone and face the subject which is often sought to be swept under the carpet would not mean that the film is either controversial or objectionable. To suggest that since the film has received "A" certificate, it cannot be watched by an entire family together is again a ground wholly impermissible for rejecting the application for tax exemption. To certify a film either "U" or "A" is the task of the ....
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....ife with human dignity. Even a person with homosexual preference as human being has right to life and liberty guaranteed under article 21 of the Constitution. Such right to life and liberty includes right to live life with dignity. 22. The conclusions based on such observations by the Commissioner are equally fallacious. To suggest that if such film is allowed to be shown, it will create friction between different sections of the society and could create law and order issue is totally misplaced. Firstly, law and order is the task of the State and a person's right to speech and freedom of expression unless it falls in any of the reasonable restrictions imposed in law as envisaged in article 19(2) of the Constitution cannot be jettisoned on the ground of remote possibility of law and order situation. It was so emphatically held by the Supreme Court in the case of S. Rangarajan v. P. Jagjivan Ram[1989] 2 SCC 574. It was observed as under:- "45. The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under article 19(2) may briefly be touched upon here. There does indeed have to be a compromise betwe....
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....n some cases the society is still not prepared to watch such a film in presence of people of different generations or age groups, would by itself not mean that it relates to any of the exceptions mentioned in the Government policy. 24. The third conclusion that the aim of the film is to support and promote gay ideology and it would be improper and unacceptable if people watch such film and adopt such ideology, once again, in our opinion, is manifestation of his personal beliefs. To begin with, the dialogues and conversations, which are the basis of the objections of the Commissioner nowhere suggest that the aim of the film is to support and promote gay ideology. From what we gather from such dialogues, the voice over of Shri Manvendra singh Gohil and the conversation between Tanmay and his family members, it simply presents a story line which represents a different point of view. In the constitutional scheme of things that we have adopted in our country, plurality of ideologies and different view points are accepted and respected. In a topic as one on hand, there are bound to be as many view points to wit as are colours in a rainbow. No single view point may be fully correct....
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....a of the G. R. are:- (i) Evil custom: To fall in this category, a practice has to be first categorized as a custom. Concept of customary practices and recognition of customs as a source of law particularly of personal laws is well recognized. Law also recognizes that howsoever ancient a usage may be, if such a custom is immoral or opposed to public policy, it will neither be recognized nor enforceable. A custom or usage which is immoral or evil for the society or which is opposed to public policy and which is therefore often times outlawed would be an evil custom. Child marriage, where a small toddler is forced to enter into marriage without having the slightest idea of what is happening to his or her life is one such custom. The evil of dowry demand, by which the father of the bride would pay through his nose for the rest of his life fulfilling the illegitimate demands of the husband of his daughter is also one such custom. Sati Pratha where a woman is forced to bum herself with the dead body of her husband is yet another example of such kind. Certainly, homosexuality is not the society's custom. Whether it is evil or not is a question we need not go into. We are conscious th....
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....nion of India AIR 1978 SC 597, the apex court in the context of reasonable restrictions that may be imposed under article 21 to the right to life and liberty by law held that the procedure contemplated by article 21 must answer the question of reasonableness in order to be in conformity with article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive, otherwise, it should be no procedure at all and the requirement of article 21 would not be satisfied. 31. In the case of Kameshwar Prasad v. State of Bihar AIR 1962 SC 1166, a Constitution Bench of the Supreme Court held that even a Government servant has a right to freedom of speech and expression and would include making of demonstration which is a visible manifestation of the feelings or sentiments of an individual or a group. It was held that such demonstration as long as they are peaceful and orderly would fall within the freedom guaranteed under article 19(1)(a) and 19(1)(b) of the Constitution. 32. In the case of Sakai Papers (P) Ltd. v. Union of India[1962] 3 SCR 842; AIR 1962 SC 305, the Supreme Court held that right to freedom of speech and expression carries with it the right to pu....
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....tion and a restraint on advertisements would affect the fundamental rights under article 19(1) (a) on the aspects of propagation, publication and circulation." 35. In the case of Express Newspaper (Private) Ltd v. Union of India AIR 1958 SC 578, a Constitution Bench of the Supreme Court in the context of press censorship and the law as it developed in the United States observed that the freedom of press rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. The court further observed as under:- "143. This is the concept of the freedom of speech and expression as it obtains in the United States of America and the necessary corollary thereof is that no measure can be enacted which would have the effect of imposing a pre-censorship curtailing the circulation or restricting the choice of employment or unemployment in the editorial force. Such a measure would certainly tend to infringe the freedom of speech and expression and would therefore be liable to be struck down as unconstitutional." The court noted with approval observations of honourable Fazal Ali, J. in 44 his disse....
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....tuations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg"' 18. The film 'Kutra Pathirikai' is an intermingling of fact and fiction. The former being the events leading to the assassination of the late Prime Minister Rajiv Gandhi, the assassination itself and its after-math. The producer has attempted to place before the public the true account of what has passed into history. He has done no more and no less than what has already been done by different organs of the media, national and international. The producer tells his audience without embellishment what in a democracy is the right of the audience and the general public, viz., the right to be informed and the right to know, which are vital in a democratic set up. Each and every piece of evidence depicted in this film is a matt....
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....just by watching certain bits of the film. The court further observed that "the freedom of expression, which is legitimate and constitutionally protected cannot be held to ransom on a mere fall of a hat". It was further observed that the doordarshan being a State controlled agency funded by public funds could not be denied access to screen the respondent's documentary except on specified valid grounds. It was further observed that "in our view, the Doordarshan being a national channel control airwaves which are public property. The right of the people to be informed calls for channelizing and streamlining Doordarshan's control over the national telecast media vehicle". 38. In the case of Sahara India Real Estate Corporation Ltd v. Securities and Exchange Board of India[2012] 174 Comp Cas 154 (SC) ;[2012] 10 SCC 603, the Constitution Bench of the Supreme Court considered the question of putting limitation on printing and electronic media in publishing reports of ongoing court cases. The court balanced the right of freedom of speech and expression on one hand and right of accused in a criminal trial to privacy and confidentiality and avoidance of media gaze. Even while....
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....Indian Express Newspapers (Bombay) P. Ltd. v. Union of India[1986] 159 ITR 856 (SC); AIR 1986 SC 515. In the said case, the court was considering the challenge to a notification issued by the Central Government under section 25(1) of the Customs Act withdrawing certain exemptions to import of newsprint used for publication of newspapers. The court observed that freedom of press means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. Withdrawal of the tax exemption was struck down further observing that (page 903 in 159 ITR):- "84. If any duty is levied on newsprint by Government, it necessarily has to be passed on to the purchasers of newspapers, unless the industry is able to absorb it. In order to pass on the duty to the consumer, the price of newspapers has to be increased. Such increase naturally affects the circulation of newspapers adversely." Even withdrawing of tax concession illegally or unauthorisedly which would restrict or infringe the freedom of expression can be considered as a facet of denying fundamental right guaranteed under article 19(1)(a) of the Constitution. 40. Endorsi....
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....e case may be, and is not opposed to any of the fundamental rights or other provisions of the Constitution, the court would not annul the law declaring it as unconstitutional. Constitutionality of such provision has, however, nothing to do with the subject-matter which we are grappling to find answer for. Section 377 of the Indian Penal Code provides for punishment for unnatural carnal intercourse which covers range of activities far beyond the act of consensual physical relations between two members of the same sex. For the same reason we do not find it necessary to refer to number of judgments cited by the learned Additional Government Pleader of various High Courts in the context of interpretation of section 377 of the Indian Penal Code. Learned Additional Government Pleader had also stressed on the higher susceptibility of such persons (gays and homosexuals) to HIV/AIDS viruses. In this context, he had relied on an affidavit filed by National Aids Control Organisation (NACO) before the Delhi High Court in the case of Naz Foundation v. Government of NCT of Delhi[2010] Cri. L.J. 94. From such affidavit and discussion contained in the judgment of the Delhi High Court, it can be ga....