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Mrs. Usha Uthup Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberMatter No. 1013 of 1983
Reported inAIR1984Cal268
ActsConstitution of India - Articles 12, 14, 19(1), 19(2) and 226; ;West Bengal Mahajati Sadan Act, 1949 - Sections 4, 5, 6, 10, 12 and 15
AppellantMrs. Usha Uthup
RespondentState of West Bengal and ors.
Appellant AdvocateSubrata Roy Chowdhury, ;J.C. Ghosh, ;Tapas Banerjee and ;Ashoke K. Sil, Advs.
Respondent AdvocateS.K. Acharya, Adv. General and ;Bikash Bhattacharya, Adv. for Respondents Nos. 1, 2 and 3, ;Hansa Deb Burman, ;Prasad Khaitan and ;R.C. Deb, Advs.
Cases ReferredDwarka Nath v. Income
- orderp.c. borooah, j.1. the petitioner sm. usha uthup does not require any introduction to the music loving people of india and also in many countries abroad. by her songs numerous charities, including those under the red cross, the chief minister of west bengal, (he indian navy and mother teresa have been benefited. she has sung on television from all centres viz., delhi, bombay, calcutta and madras and also in the national programme telecast from delhi through different centres. she has also been seen and heard on television in singapore, hong kong and in the united states of america. she is also a regular singer from various centres of ah india radio. she bas sung in many of the public halls in calcutta, including those owned and managed by the state government and in her functions.....

P.C. Borooah, J.

1. The petitioner Sm. Usha Uthup does not require any introduction to the music loving people of India and also in many countries abroad. By her songs numerous charities, including those under the Red Cross, the Chief Minister of West Bengal, (he Indian Navy and Mother Teresa have been benefited. She has sung on television from all centres viz., Delhi, Bombay, Calcutta and Madras and also in the National Programme telecast from Delhi through different centres. She has also been seen and heard on television in Singapore, Hong Kong and in the United States of America. She is also a regular singer from various centres of AH India Radio. She bas sung in many of the public halls in Calcutta, including those owned and managed by the State Government and in her functions various dignitaries including the present and past Governors of West Bengal, the Chief Minister of West Bengal and Mother Teresa had. been present. Many of her records, both in long play and extended play, have been released in English, Hindi, Bengali and other Indian languages. Shehas also had the privilege of performing before the President of Kenya, the Prime Minister of Mauritius and before the Members of the British Houses of Parliament. No one in India or outside has till now objected to her songs or to the manner of her singing, till like a bolt from the blue came a purported statement from Shri Jatin Chakravorty, Minister-in-Charge of the Public Works Department of the Government of West Bengal (the respondent No. 5) and which was published in the Ananda Bazar Patrika on May 20, 1983. According to the said press statement, a copy of which and an English translation whereof have been set out in para 11 of the writ petition, the respondent No. 5 as the Chairman of the Board of Trustees of the Mahajati Sadau did not allow the petitioned to perform inthe said Hall as her songs and other performances of Disco are perverted culture (APASANSKRITI) and the tastes of those persons who sing such songs are very low and those who listen to such songs are also depraved. This publication was followed by a meeting between the petitioner and the said respondent at the Writers' Buildings where the same views were alleged to have been expressed by the respondent. The text of the purported conversation at the said meeting has been set out in paragraph 12 of the writ petition. Thereafter in the issue of the Telegraph of June 18, 1983 an interview between Shri Jatin Chakravorty and Shri Tarun Ganguly, a correspondent of the (paper) entitled 'Poor Cultural Taste' has been set out in para 14 of the writ petition. In course of the said interview the respondent No. 5 is alleged to have stated to Shri Ganguly :

'I have already told you that in the matter of Sudan Hall, I have used my discretion as the Chairman of the Board of Trustees. Why does she insist on performing in Government sponsored or Government-run halls Why does not Mrs. Uthup go for the private theatres in the city So far as i am concerned, we cannot allow her in Mahajati Sadan, Rabindra Sadan and the University Institute'. In the said interview in answer to a question put by Shri Ganguly as to what was his main grudge against disco music The answer was : 'You see this sort of music was given a boost during the Emergency to degrade Bengali culture. It kills our noble tradition of Ramakrishna and Vivekananda. It is a planned move to tender the Bengali youth backboneless and it affects the moral fibre.'

2. On May 18, 1983 Sm. Gita De, the Assistant Secretary of the Binodini Satya Gosthi of 5, Wards Institution Street, Calcutta went to the Mahajati Sadan, and in the absence of the Secretary of the Sadan, requested an employee for the use of the Hall for staging a charity performance in which the petitioner would perform, inter alia, to raise funds for a bed for indigent artistes in the Behala Cancer Hospital, when she was told that no function of Sm. Usha Uthup could be held in the said Hall. On Jan. 16. 1983 one Sri N. Sarkar, the Cultural Secretary of 'Aroop' a recretional organisation for music lovers of 13 Pratapa-ditys. Road, Calcutta went to Mahajati Sadan to book the hall for a performance by the petitioner but was refused. He met with the same fate in Rabindra Sadan. 'AALAP', a socio-cultural organisation was also allegedly refused permission to stage Sm. Usha Uthup's shows in Mahajati Sadan and Rabindra Sadan. Copies of the letters in the aforesaid context written by Sm. Gita De, Shri N. Sarkar and the General Secretary of AALAP are annexed to the petition and collectively marked with the letter 'A'.

3. For the objectionable remarks said to have been made by Shri Jatin Chakravorty relating to the petitioner a suit for damages was filed on the Original Side of this Court on or about June 17, 1983. Thereafter the petitioner obtained the instant Rule on July 5, 1983. When the matter came up on July 7, 1983 as an application, a statement dated July 6, 1983 signed by Shri R. N. Sen Gupta, the Home Secretary and Shri Jyoti Basu, the Chief Minister of West Bengal, was filed before me. According to the said statement there would be no restriction as regards the availability of the Netaji Indoor Stadium, the Rabindra Sadan, Ahindra Mancha and Sirir Manch for staging musical and other performances, except cabaret dance, snake dance and belly dance, subject to the availability of the Halls and/or the Stadium and Police and other verification as required. In view of this statement. I by an order of the same date discharged the Rule as against the State respondents viz., respondents Nos. 1, 2 and 3. Thereafter on July 11, 1983 liberty was given to the petitioner to file a supplementary affidavit with additional materials by the 13th of that month and directions for affidavits, both to the writ petition and the supplementary affidavit, were also given. The Rule was taken up for hearing on August 2 and 3, 1983 when the respondents Nos. 4. 5 and 6 were represented by Advocates. On Aug. 3, 1983 in view of a statement issued to the Press by the respondent No. 4 his lawyer retired from the case with the Court's permission. I thereafter sent for the Advocate on record for the State of West Bengal, viz., Mr. R. C. Deb, who undertook to file a vakalatnama on behalf of the respondents Nos. 4 and 5 which he did on August 4, 1983. In the meantime on Aug. 2, 1983 an affidavit-in-opposition affirmed by Shri Jatin Chakravorty on behalf of himself and as the Chairman of the respondent No. 6 was filed with a backsheet of Mr. R. C. Deb. Mr. Deb, however, categorically denied in open Court that the backsheet was issued by him.

4. On August 10, 1983 when the matter next appeared before me the learned Advocate General made an oral submission without giving reasons requesting me to release the matter. I adjourned the hearing to August 24, 1983 giving an opportunity to the respondent No. 5 to purge himself of the contempt for having made contumacious statements to the Press affecting the dignity of the Court. On the adjourned date the learned Advocate General again orally renewed his prayer for release of the case Without ascribing any reason as to why I should not hear the matter. As no apology had been tendered and as the matter was heard for a number of days and as the respondents Nos. 4, 5 and 6 were impleaded in their statutory capacity, I declined to release the matter. The arguments on behalf of the petitioners were thereafter concluded and judgment was reserved. A written application for transfer was purportedly moved before the learned Acting Chief Justice on August 26, 1983 in his Chamber by the . learned Advocate General but the prayer was not granted.

5. Mr. Subrata Roy Chowdhury appearing on behalf of the petitioner has made detailed submissions. I will only briefly state the gist of his arguments. Mr. Roy Chowdhury has submitted that the Board of Trustees of the Mahajati Sadan and Mr. Jatin Chakravorty as Chairman and in his capacity as P. W. D. Minister are all creatures of a statute, viz., the Mahajati Sadan Act, 1949 and as such they come within the meaning of State under. Article 12 of the Constitution and are amenable to the writ jurisdiction of this Court.

6. The second submission of Mr. Roy Chowdhury is that the petitioner's rights guaranteed under Article 19(1)(a) and (g) of the Constitution have been violated by the respondents as his client has been blacklisted from performing in Mahajati Sadan without giving her any opportunity of showing cause. He has further submitted that the decision to ban the petitioner or anybody else who sings 'pop' songs or 'disco' songs in Mabajati Sadan is arbitrary, irrational, unreasonable and contrary to the policy of the State Government and has been passed without following any norms or standards and without any application of mind.

7. Mr. Roy Chowdhury has then submitted that by shutting out his client but allowing the use of the Hall to others for performing similar musical functions, hisclient has been arbitrarily discriminated against thus violating the provisions of Article 14 of the Constitution.

8. Mr. Roy Chowdhury's next argument relates to the resolution dated June 23, 1983 of the respondent No. 6 by which it was, inter alia, decided that performance of 'pop' songs and 'disco' songs in Mahajati Sadan would be banned in future. According to Mr. Roy Chowdhury the respondent No. 6 did not have the power to pass the said resolution and as such it should be struck down. Mr. Roy Chowdhury has further submitted that from the Press statement and the Press interviews which have been referred to in the writ petition it is clear that there was another resolution of the respondent No. 6 which has been deliberately suppressed. Mr. Roy Chowdhury also cited a number of decisions to which I shall refer in the body of my judgment.

9. Mr. Jatin Chakravorty retired from the case by issuing a press statement on Aug. 3, 1983 in his capacity as P. W. D. Minister and as a Chairman of the Board of Trustees. But 1 fail to understand as to how in the absence of a resolution of the Board of Trustees of the Mahajati Sadan, the respondent No. 6 could be deemed to have retired from the case.

10. During the period Mr. Chakravorty was represented by Counsel a statement dated July 9, 1983 by Shri S. M. Murshed, Secretary, P. W. D. and the Minister himself was produced before this Court. According to the said statement there was no ban against any person or organisation with regard to the holding of public meetings or staging theatrical performance or musical performances in the Mahajati Sadan Hall provided applications were made in the prescribed form and other conditions were fulfilled. It was contended on behalf of the respondents that no application by the petitioner for use of the Hall was pending before the Hall Authorities and as such I should dismiss the writ petition.

11. The issues which arise for determination in this Rule is the petitioner's right to sing in the Mahajati Sadan and the power of the respondents to deny her the use of the Hall. Also under question is the legality of the resolution passed by the respondent No. 6 in a meeting held on June 23, 1983 which reads as follows :

'As regards the directives of the Calcutta High Court on Shri Jatin Chakravorty, it was decided, that this meeting unanimouslyapproves the action taken by the Chairman, Board of Trustees, Mahajati Sadan to baa performances of Pop songs and Disco songs in Mahajati Sadan in future.'

12. By virtue of the aforesaid resolution Pop songs and Disco songs would not be allowed to be performed in the Mahajati Sadan Hall. It would, therefore, be necessary to understand what are Pop songs and Disco songs. In Annexure 'A' of the affi-davit-in-reply filed by the petitioner on August 2, 1983 a detailed discourse relating to the two types of music and songs have been set out, The New Penguin Dictionary of Music (1978) defines Top' as an abbre-viation for 'popular'. In older usage it usually carried the straightforward meaning of 'appealing to a wide audience' -- e. g. 'Classical Monday Pops'. Since the late 1950, however, it, usually refers to a non-classical commercially promoted type of music of U. S. derivation, consisting almost entirely of songs, whether delivered by solo or group vocalists. Pop in this sense, particularly as purveyed by radio and gramophone records, has assumed the role of a popular alternative to the classical tradition of composition and performance. Hence Pop groups (performers), Pop festivals, etc.

13. In the 15th Edition of The Encyclopaedia Britannica in Vol. 12 at page 668 popular music has bees described as follows :

'In a broad sense, folk music best de-serves the epithet 'popular'. But in common usage the term denotes a more ephemeral, commercially successful music; introduced, in many cases, in stage or film musical comedy, or by a reigning vocalist through night club and television performances or recordings, and disseminated by the varied and far-flung resources of the entertainment industry. The quality of much of this music is very high. Composers, arrangers, and performers devote considerable talents to its production, often combining in one pet-son two or even three of these functions in a manner reminiscent of 'serious' composers, until a fairly strict division of labour (though only within ,the past century) became the rule. The cohesive force in all this has been the dance band in its varied manifestations; 'hit tunes' originate and are perpetuated in that setting. ,

Popular music, so identified, does represent a viable, though short-lived, folk music throughout much of the civilised world. But few 'hits' hold their own for more than a few month's against the relentless Production of new tunes. Some of the best ones are revived, periodically, out of, nostalgia or simply from the quest for variety; when more than a few years' old, however, they sound 'dated', though they may be highly evocative of another eta and possessed of an archaic charm. Newness is oaa of the principal values of the genre. Such 'all-time' favourites as 'Dinah', 'Stardust', and the 'St. Louis Blues' only underscore this point.'

14. Strictly speaking there is nothing called 'disco music' in the field of Western music. The word 'disco' is the clipped form of the word 'discotheque' and has popularly been used to refer to anything connscted with a discotheque.

15. Webster's Seventh New Collegiate Dictionary, (1967) Edition defines 'disco' as follows :

'disc -- or disci -- or disco -- combining form (lat. from Gk. disk -- disko, from diskos)

1 : disk (discigerous)

2 : phonograph record (discophile) The same dictionary defines a discotheque as under :

'discotheque (Fr. discotheque, from dis-que (disk, record) + -0- + - theque (as in bibliothequs (library). A usually smalt intimate nightclub for dancing especially to recorded music.'

16. The Random House Dictionary of the English language, (1969) Edition defines discotheque a bit differently as 'a cabaret in which patrons may dance to popular music, esp. on recordings'.

17. The World Book Dictionary (1973) has defined it 'as a nightclub where phonograph records are played for dancing'.

18. In paragraph 29 of the writ petition the petitioner has categorically stated that she never dances while singing songs nor does she allow anybody to dance at the time of her musical programme either at the stage or in the Hall. Therefore, there cannot be any basis to the allegation that the petitioner, is a disco singer. The question is, can there be anything objectionable, vulgar or decadent in the songs the petitioner sings in different languages Since the issuance of this rule I have taken the trouble to listen to the recorded songs sung by the petitioner in English, Hindi and Bengali. I must frankly admit that I liked the songs and found nothing objectionable, vulgar and decadent in them.

19. According to press reports a demonstration was held in the precincts of the Rabindra Sadan on August 22, 1983 when the petitioner had a performance. The demonstration was ostensibly to protest against the petitioner's performance in the said Hall, the use of which had been allowed by the Authorities concerned. When the petitioner Wa' trying to establish her fundamental right to sing in another Hall in Calcutta and the matter was sub judice, this demonstration, to 'ay the least, was ill-advised and highly improper. In this context it may be mentioned that any particular political party has a right under the law to make its views known to the public and the use of a public Hall, which is used for holding meetings, cannot arbitrarily or unreasonably be denied to such party for the dissemination of its views at long as it is done peaceably without inflaming the audience to violence. If another party, or the party in power, which does not subscribe to the views of the political party holding the meeting, tries to prevent, disrupt or obstruct the meeting, then the fundamental right of the freedom of speech and expression is reduced to a mere mockery. The interrupters of the meeting like the interrupters of the petitioner's performance, could be said to be the destroyers of the freedom of speech and expression.

20. Returning to the case before me, the Grst question that has to be decided is whether the respondents, a.nd in particular the respondent No. 6, can be characterised as an authority falling within the definition of 'State' in Article 12 of the Constitution The Mahajati Sadan Act XVI of 1949 (hereinafter referred to as the Act) was passed by the West Bengal State Legislature, inter alia, for speedy acquisition of the properties mentioned in the First Schedule of the Act for the continuance and completion of the erection of the Mahajati Sadan and its maintenance, management and use and also for the creation of a body of trustees. Section 2(a) of the Act 'the Board' means the Board of Trustees for the Mahajati Sadan constituted uader the Act. Under Section 4 (1) of the Act, the Board has to be constituted by the State Government in such manner and consisting of such number of trustees not exceeding eleven, of whom not more than four may be ex officio trustees, as may be prescribed by rules made by the State Government. Under Section 5 every trustee and every member of the Managing Committee and every officer and servant of the Board shall be deemed to be a public servant. under Section 6 (1) of the Act the State Government may acquire the properties described in the First Schedule and under Sub-section (2) of the said section the said properties shall vest absolutely in the State Government free from all incumbrances. Section 9 of the Act provides for the formation of a fund called the Mahajati Sadan Fund to which would be credited the sums of money, inter alia, paid or granted by the State Government and the Corporation of Calcutta, Under Section 10 of the Act the State Government would contribute annually for the purposes of the Sadan a sum of rupees twenty-five thousand and under Section 11 the Corporation would similarly contribute a sum of rupees five thousand under Section 12 the State Government would contribute a sum of not less than five thousand rupees per annum for repairs, additions or alterations of the Hall. Section 15 of the Act gives power to the State Government by notification in the Official Gazette to declare the Board to be incompetent and also gives the power for supersession of the Board. The aforesaid provisions of the Act therefore clearly indicate that the respondent No. 6 is an Authority within the meaning of 'State' under Art 12 of the Constitution and as such amenable to the writ jurisdiction of this Court.

21. The Supreme Court in the case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, reported in : (1975)ILLJ399SC observed as follows :

'This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute.'

22. In the case of Ramana Dayaram Shetty v. The International Airport Authority of India : (1979)IILLJ217SC the Supreme Court after analysing the provir sions of the Act under which the International Airport Authority was constituted held as follows (at p. 1650) :--

'These provisions clearly show that every test discussed above is satisfied in the casa of the 1st respondent and they leave no doubt that the 1st respondent is an instru-mentality or agency of the Central Government and falls within the definition of 'State' both on the narrow view taken by the majority in Sukhdev v. Bhagat Ram : (1975)ILLJ399SC (supra) as also on the broader view of Mathew, J., adopted by us.'

23. Therefore, since the respondent No. 6 is a Statutory Body, it cannot arbitrarily deny the. use of the Mahajati Sadan Hall to the petitioner. In this respect reference may again be made to the case of Ramana Dayaram Shetty v. The International Airport Authority where the Supreme Court observed as follows :

'Every action of the Executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege.'

The Supreme Court further observed :

'The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Professor Reich in an especially stimulating article on 'The New Property' in 73 Yale Law Journal 733, 'that Government action be based on standards that are not arbitrary or unauthorised'. The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey heir or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual.'

24. According to the petitioner she has been singled out and/or blacklisted by the respondent No. 5 without giving her any opportunity of being heard and this would be apparent from the Press Statements, the Press interview with Shri Tarun Ganguly and the conversation between her and the said respondent. These facts nave been dealt with by the respondent No. 5 in paragraph 6 (a) of the affidavit-in-opposition as follows :

'6 (a). I have been advised that since the matter is sub judice inasmuch as a suit has been filed by the petitioner against me in this Hon'ble Court being Suit No. 379 of 1983, on identical allegations which is pending, I would be prejudiced if I were to disclose evidence and/or deal with the allegations of fact including the Press reports made in the petition and affidavit at this stage.'

25. From the order dated June 21, 1983 passed by Mrs. Monjula Bose, J. in the Damage Suit filed by the petitioner it appears that the respondent No. 5 was restricted from repeating the remarks relating to the 'APASANSKRITI' of the Disco songs and the taste and behaviour of the listeners but the respondent No. 5 was not restrained from denying whether or not he had made such statements to the Press or to Smt. Uthup, In the absence of any specific denial in the affidavit-in-opposition, it can be presumed that the respondent No. 5 did make such statements and the petitioner was sought to be shut out from using the Mahajati Sadan Hall and this was done without giving her a hearing, thus leading to a denial of the principles of natural justice.

26. The next question that has to be gone into is whether the petitioner's right under Article 19(1)(a) of the Constitution has been infringed? The freedom to sing or dance is an important media of expression and is an integral part of the freedom of speech and expression enshrined in the aforesaid Article of the Constitution. There can be a reasonable restriction or curtailment of such freedom under Article 19(2) of the Constitution if, for instance, a song or a dance is vulgar or obscene or if the lyrics of a song hurt the sentiments of any class or community. But modern or popular songs or dance, or to use the more popular expression 'pop' or 'disco' songs or dances, cannot be universally condemned as vulgar or decadent. It is the fundamental right of a citizen to sing such songs or to dance to such music with a corresponding right to hear or see such a singer or a dancer. No Minister or Statutory Authority can appoint himself the guardian of the citizens' mind and arbitrarily and capriciously decide what song a person can sing or what type of dance a person can dance, and if one does so he would be reducing the freedom of speech and expression guaranteed under the Constitution to a mockery.

27. In para 8 (b) (xiii) of the affidavit-in-opposition the respondent No. 5 has stated : 'There is no legal definition of what constitutes a pop song or a disco song, but there is a consensus among average men regarding the nature of such songs'. By the aforesaid statement the respondent No. 5 obviously wanted to convey that an average person would pot approve of pop or disco songs, I doubt whether the general public, especially the younger generation, would support this view. Recently in the Netaji Indoor Stadium Kalyanji Anandji organised a show with Amitabh Bachhan as the star attraction. I do not think any member, of the vast audience objected to the manner in which Shri Bachhan sang or danced. Kamal Hassan of the south and Mithun Chakravorty, a local boy, have attained fame by their disco type of dances. None of their films have been banned or even restricted to 'Adult' audiences because of their dances or the music and song accompaniment. These two artistes are in no way inferior to John Travolta who became famous after the release of the film 'Saturday Night Fever'. Nazia Hassan became famous in ' India by her song 'Disco Deewane'. The record cut by her has sold thousands of copies. These facts go to show that 'Pop' and 'Disco' music songs, although of foreign origin, have come to stay in India. If any authority tries to force or prevent the people of India from seeing or hearing such songs or dances, then Article 19(1)(a) of the Constitution might as well be Written off, because freedom of speech implies not only a freedom to express the views which one approves but also the freedom to propagate the views which one may totally disapprove. The arbitrary action of the respondents, therefore, certainly violates the petitioner's rights under Article 19(1)(a) of the Constitution.

28. In this connection reference may be made to the case of Smt. Maneka Gandhi v. Union of India, reported in : [1978]2SCR621 , where the Supreme Court observed:

'Similarly, the right to paint or sing or dance or to write poetry or literature is also covered by Art, 19(1)(a), because the common basic characteristic in all these activities is freedom of speech and expression, or to put it differently, each of these activities is an exercise of freedom of speech and expression. It would thus be seen that even if a right is not specifically named in Article 19(1), it may still be a fundamental right covered by some clause of that Article, if it is an integral part of a named fun-damental right or partakes of the same basic nature and character as that fundamental right.'

In the case of Express Newspaper (Private) Ltd. v. Union of India, reported in : (1961)ILLJ339SC , the Supreme Court observed (paras 127 and 123):

'Freedom of speech and expression includes within its scope the freedom of the Press and it would be apposite here to refer to the following passages from 'Freedomof the Press -- A Framework of Principles'

(Report of the Commission on Freedom of Press in the United States of America).

The General Meaning of Freedom: To be free is to have the use of one's powers of action (i) without restraint or control from outside and (ii) with whatever means or equipment the action requires.

But since freedom is for action, and action is for an end, the positive kernel of freedom lies in the ability to achieve the end : to be free, means to be free for some accomplishment And this implies command of the means to achieve the end. Unless the equipment necessary for effective action is at hand, unrestraint may be a mockery of freedom .....'

In the same case the Supreme Court after referring to a number of American Decisions observed in para 142 as follows :

'It is clear from the above that in the United States of America :

(a) the freedom, of speech comprehends the freedom of Press and the freedom of speech and Press are fundamental personal rights of the citizens;

(b) the freedom of the 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;

(c) such freedom is the foundation of free Government of a free people;

(d) the purpose of tuch a guarantee is to prevent public authorities from assuming the guardianship of the public mind.'

The United States' Supreme Court in the case of Richard, G. Kleindienst v. Ernest Mandel, reported in (.1972) 408 US 753 : 33 Law Ed 2d 683 (697) Douglas, J. although giving a dissenting opinion, observed:

'We should assume that where propagation of ideas is permissible as being within our constitutional framework, the Congress did not undertake to make the Attorney General a censor. For as stated by Justice Jackson in Thomas v. Coffins, (19.44) 323 US 516, 545 : 89 Law Ed 430, 448, 65 S. Ct. 315 (concurring), '(t)he very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the Press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any Government to separate the true from the false for us.'

In the same decision, Marshall, J. made the following observations :

'The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin.'

29. Furthermore, the petitioner is a singer by profession and the unreasonable and arbitrary denial of the use of a public hall or auditorium by a public authority for the purpose of holding shows will also affect her fundamental right to practise her profession or to carry on an occupation and this would be violative of Article 19(1)(g) of the Constitution.

30. In para 11 of the supplementary affidavit affirmed by the petitioner on Aug. 2, 1983 she has stated that on June 23, 1983, that is on the very same day when the impugned resolution was passed by the respondent No. 6, the authorities of the Mahajati Sadan allowed the performance of a musical programme by Sri Tapaa Bhattacharjee who is a Bengali and Hindi pop singer and Sm. Mina Mukherjee, a Bengali pop singer, and other artistes at the said Hall. She has further stated that after the aforesaid resolution one singer named Sri Amrik Singh Arora who dances while singing his songs, which are both Hindi pop songs and disco type songs, was allowed to perform at the said Hall on July 3, 1983, and that Sri Tapas Bhattacharjee held a musical programme at the said Hall in which Ananda Sankar and Anand Subra-maniam appeared. Sri Tapas Bhattacharjee is alleged to have sung his usual Bengali and Hindi pop songs like 'Junglee', 'Kalia', 'Amar-Akbar-Anthony', La Waris' etc.

31. The averments made in the aforesaid paragraph of the supplementary affidavit have been dealt with by the respondent No. 5 in para 43 of his affidavit-in-opposi-tion as follows :

'With further reference to para 11 I say that I have no personal knowledge of any programme on 23rd June, 1983 or 3rd July, 1983 and save and except what I have stated in para 26 hereinabove I deny each and every allegation of the petition and state that these are in any event disputed questions of fact which cannot be agitated in these proceedings.'

I fail to understand how the purported letting out of the Mahajati Sadan Hall for the performance of pop and disco type songs by different artistes can be a disputed question of fact. The respondent could have easily with reference to the records of the Hall denied or disputed the averments made by the petitioner in the aforesaid paragraph of the supplementary affidavit.

32. Therefore, by allowing the Hall to other artistes after the passing of the impugned resolution and denying the use of the Hall to the petitioner, the petitioner has been discriminated against and her right to equality under Article 14 of the Constitution has been violated.

33. If the provisions of the Act be strictly construed the Mahajati Sadan can only be used for the purposes specified in the Second Schedule to the Act. Although musical functions are not one of the purposes specified, it is an accepted position that the Hall is let out, inter alia, for musical functions and magic shows. Therefore, there is some substance in Mr. Roy Chow-dhury's submissions that his client has been blacklisted without giving her an opportunity of being heard, and in this connection reference may be made to a decision of the Supreme Court in the case of Erusian Equipment and Chemicals Ltd. v. State of West Bengal, reported in : [1975]2SCR674 , where the Supreme Court observed :

'Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purpose of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.'

34. The respondent No. 6 purported to pass a resolution on June 23, 1983 which has already been set out in a previous portion of the judgment. The said resolution has the effect of regulating the purposes for which the Mahajati Sadan may be used; this could only be done by the State Government under the provision of the Act.

35. Section 17 (1) of the Act lays down :

'The State Government may after previous publication make rules for carrying out the purposes of this Act.'

Sub-section (2) of the said section reads :

'In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely,

(a) .....

(h) the purposes for which and the manner in which the Mahajati Sadan or any property or fund held for the purposes of the Mahajati Sadan shall be used and applied.'

Section 18 of the Act empowers the Board with the previous sanction of the State Government to make regulations to provide, inter alia, for the appointment of dates, times and places for meetings of the Board and Committees and defining the powers and duties of the Secretary of the Board. Therefore, the resolution dated June 23, 1983 passed by the Board is beyond the competence of the respondent No. 6 and is, therefore, ultra vires the Act.

36. The Netaji Indoor Stadium, Rabin-dra Sadan, Sisir Mancha, Ahindra Mancha and the Mahajati Sadan are all Halls or Auditoria under the direct control of the State Government or some Authority under the control of the State. Therefore, there should be an uniform policy regarding the use of such Halls or Auditoria and I fail to understand why there should be a double standard and the Mahajati Sadan Hall should not be made available subject to the same terms and conditions as the other abovementioned Halls.

37. It is true that there is no application of the petitioner pending before the Authorities of the Mahajati Sadan but on that account I should not, in exercising powers under Article 226 of the Constitution, dismiss the petition in liming but I should try to mould the petition and give the maximum relief possible to the petitioner in view of the observations which I have already made. In this connection reference may be made to the case of Sakal Papers (P.) Ltd. v. Union of India, reported in : [1962]3SCR842 , where the Supreme Court observed (para 29) :

'Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of these rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject, of course, to per-missible restrictions.'

38. In the case of Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur, reported in : [1965]57ITR349(SC) the Supreme Court held :

'This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression 'nature' for the said expression does not equate the writs that can be issued in India with those in England, but only drawn an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country.'

39. In the premises aforesaid, I dispose of this Rule on the following terms :

(1) The petitioner Sm. Usha Uthup of any person or persons on her behalf will be at liberty to apply to the respondent No. 6 for the use of the Mahajati Sadan Hall for staging musical performances. If such an application is made, the respondent No. 6 will deal with the same in accordance with law subject to availability and police permission and in the light of the observations made in this judgment.

(2) The Resolution passed by the respondent No. 6 in their 136th meeting on June 23, 1983 relating to the ban of performance of Pop and Disco songs in the Mahajati Sadan Hall in the future is quashed.

(3) There will be no order as to costs.

40. Before I finally bring down the curtain in this case I have to deal with another aspect which could have been easily avoided. Shri Jatin Chakravorty had issued two statements to the Press on August 3 and 5, 1983. In both the statements there are passages which are 'ex facie' contumacious and affect the dignity of this Court. It is beyond my comprehension as to how a senior Minister of a State Government could make such observations affecting the dignity of the Judiciary, I do not wish to speculate as to why the Hon'ble Minister made such statements, whether for political considerations or being misguided and wrongly advised. In any event, by making such statement Shri Chakravorty has not in any way enhanced the prestige and dignity of the high office which he holds. I have the right and the power to deal with him under the Contempt of Courts Act. I, however, refrain from doing so in order to maintain comity between the Judiciary and the Executive, which along with the Parliament form the pillars of a democratic setup. I, however, reprimand Shri Chakravorty and hope that in the future he will ponder before making similar statements to the Press.

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