wwp13447.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.13447 OF 2017
1) Shri Sameer Shankarrao Shukla,
Age-36 years, Occu:Priest,
R/o-Nathgalli, Paithan,
House No.329, Kal Bairav Mandir,
Dist-Aurangabad,
2) Shri Saurabh Dattatraya Pohekar,
Age-30 years, Occ:Priest,
R/o-Nathgalli, Paithan,
Mallahar Niwas,
Dist-Aurangabad,
3) Shri Sameer S. Dharmadhikari,
Age-42 years, Occu:Priest,
R/o-Nathgalli, Paithan,
Dharmadhikari Niwas,
Dist-Aurangabad,
4) Shri Santosh Vasantrao Chadidar,
Age-50 years, Occu:Barber,
R/o-Rangarhati, Paithan,
House No.52, Near Nagar Parishad,
Dist-Aurangabad,
5) Shri Govardhan Asaram Chadidar,
Age-45 years, Occ:Barber,
R/o-Narala, Paithan,
Shivnagar-Narala,
Tq-Paithan,
Dist-Aurangabad.
...PETITIONERS
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wwp13447.17
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VERSUS
1) The State of Maharashtra,
Through its Home Department,
Mantralaya, Mumbai,
2) The State of Maharashtra,
Through Ministry of Cultural
Affairs, Mantralaya,
Mumbai,
3) The Divisional Commissioner,
Aurangabad,
4) The Collector, Aurangabad,
5) The Superintendent of Police,
Aurangabad,
6) The Tahsidlar, Aurangabad,
7) Mrs. Kalpana Vilas Kothari,
"Kalpavila" Plot No.10,
Sector 19, Road No.16,
New Panvel, Raigad,
8) Shri Sanjay Krishnaji Patil,
Plot No.102, Behind Sai Heritage,
PCMC Garden, Pimple Gurav,
Pune,
9) Shri Sandeep Bhalchandra Patil,
Plot No.102, Behind Sai Heritage,
PCMC Garden, Pimple Gurav, Pune.
...RESPONDENTS
...
Mr.S.V. Adwant Advocate for Petitioners.
Mr.V.M. Kagne, A.G.P. for Respondent Nos.1 to 6.
...
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CORAM: S.S. SHINDE AND
MANGESH S. PATIL, JJ.
DATE : 17TH NOVEMBER, 2017
ORDER :
1. This Petition under Article 226 of the Constitution of India, is filed with following substantive prayers:
"(b) By issuing appropriate writ and order, the respondent No.1 to 6 be directed to ban the release of the film 'Dashkriya', scheduled on 17.11.2017, in the State of Maharashtra, IN ALTERNATIVELY,
(c) By issuing appropriate writ and order, the respondent No.1 to 6 be ordered to direct the respondent Nos.7 to 9 to delete the slang and derogatory dialogues, in the film 'Dashkriya' ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 4 before the release of the film."
2. Mr. Adwant, learned counsel appearing for the Petitioners, relying upon the pleadings and grounds taken in the Petition, made following submissions:
I) It is submitted that the writer Shri Baba Bhand has written and published a novel "Dashkriya" in the year 1994. Respondent No.7 has produced a Marathi Film "Dashkriya", the script of which is based on the said novel. The screen play, dialogues and lyrics have been written by Respondent No.8 and the film has been directed by Respondent No.9.
II) It is submitted that while writing the screenplay and dialogues as well as while producing and directing the film, Respondent Nos.7 to 9, were expected to follow the rules of freedom of speech and expression bestowed on them by the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 5 Constitution of India along with the duties, responsibilities and obligations thereunder. III) It is further submitted that the movie "Dashkriya" is blasphemous and offensive and has hurt the emotions and sentiments of the Bramhin community, especially of the Kirwant community, who perform the posthumous religious rites and rituals after cremation and has been specifically called, "Dharmabhrashth" in the film. It is further submitted that the film also uses slang language towards the barber community, which has offended their emotions and sentiments. IV) It is further submitted that the storyline also hurts the religious sentiments of the Bramhin community and the Barber community. The film attributes the minority community as 'Dalals', which has offended the fundamental rights of the Petitioners and like others, as well as the Indian traditions, customs and culture. ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 :::
wwp13447.17 6 V) It is further submitted that upon getting the knowledge of the trailer of the film, the Petitioners have personally viewed the trailer, which has made them to immediately take up the cause with the (i) Home Minister, State of Maharashtra, (ii) Minister of Cultural Affairs, State of Maharashtra, (iii) Divisional Commissioner, Aurangabad, (iv) Collector, Aurangabad, (v) District Superintendent of Police, Aurangabad and other authorities by filing a complaint on 14th November, 2017, however no action was taken by any of the authorities. VI) It is further submitted that the complainants who have filed the complaint, have taken education and acquired knowledge and skill in their respective fields and are putting it into practice for earning their livelihood, thus there is no wrong in practicing the trades and customs as a profession, however the trailer of the film, ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 7 which has been released, has depicted the profession of the Petitioners as immoral, which is untrue and against the tenets of the fundamental rights guaranteed by the Constitution. VII) It is further submitted that the posthumous rites and rituals performed, have been distinctly stated in religious texts of "Nirnaysinghu", "Dharmasindh", "Garud Puran", "Anteshti Sanskar", "Shraddh Prayog", "Veermitroday", and "Chudakarma Sanskar", which are being religiously followed by the Hindu Community since ages, therefore the statements that the performance of such rites are "Thothand" are disturbing and will dent the belief in Hindu tradition.
VIII) It is submitted that according to the science of rituals, rites such as tilanjali and pindadan (ritual of offering of rice balls) is to be performed beginning from 1st day till the 10th ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 8 day. Visham Shraddha is performed on odd days. If that is not possible then uttar-kriya begins from at least the ninth day. Now a days, however, pindadan that should be performed from 1st day to 10th day is performed as a combined ritual on the 10th day on the banks of river.
IX) It is further submitted that the religious texts state that when a family member passes away, the environment in the house becomes Raja-Tama predominant. The linga-deha of the deceased keeps wandering around the house or around the family members for some time. The speedy Raja-Tama predominant waves emitting from the linga-deha of the deceased get attracted to the black colour of the hair of the family members. One function of the hair is to absorb the Raja-Tama predominant waves from the environment. Men who actively participate in the final rites have higher chances of suffering distress. To avoid this suffering, they must shave off their ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 9 heads completely.
X) It is submitted that Paithan, which is a religious as well as historical town and had once seen the days of highest glory and affluence and was ruled by the Satavahans and the birth place of Nimbarka, the home of the great Sant Eknath, the holy place of Sant Bhanudas, Sant Nivruttinath, Sant Sopandev, Sant Dnyaneshwar, Sant Muktabai, Changdeo Maharaj and others, has been referred to in a disgraceful manner, which has disturbed the peace and tranquility of the holy place, which is uncondonable and unpardonable. It is further submitted that cinema is treated as a form of art and expression, however if it stirs up emotions more deeply than any other product of art and is not in the interest of the community and society as a whole or any part thereof, such cinema is required to be termed as going beyond the lines of freedom of speech and expression and violative of the reputation and the fundamental rights ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 10 guaranteed to others by the Constitution. XI) It is further submitted that the film makers are under obligation to restrict the exercise of their right within the four corners of law and the Constitutional mandate as well as within the limitations of the act specifically enacted for the exhibition and regulation of exhibition of the film. It is submitted that the release of the film "Dashkriya", scheduled on 17th November, 2017, will spread false and blind beliefs with respect to the work of the Bramhins who perform the posthumous rites and rituals and the barbers amongst the members of the public. XII) It is further submitted that the authorities under the Cinematograph Act, 1952, have failed in their duty and responsibility to restrict Respondent Nos.7 to 9 from encroaching upon the right of the Petitioners community to freedom of religion, its practice and propagation, ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 11
3. Learned counsel appearing for the Petitioners has further submitted that the theme of the film is patently provocative and the dialogues are blasphemous. The trailer of the film appears, on the face of the things, to be mala fide and objected towards instigating disbelief against the religious beliefs of the Hindus. It is impregnated with an intention to undermine the particular castes- Bramhin and Barber. (d) The film is aimed at developing a cleavage in the society on the grounds of caste. It is an attempt to keep the ash burning whens the fire of caste system is retreating fast and reaching a point of extinction. It is further submitted that Respondent Nos.7 to 9 seem to entertain manifest aversion, repulsion and hatred for the Bramhin and Barber caste and community. The language used in the dialogues is germane to violence and enmity amongst the different sections of the society. The screenplay appears to be designed and tailored to ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 12 achieve the premeditated objective of infringing the peace in the society. The film appears to be politically motivated. Even the children, who have acted in the film, have been used as the spoke- persons of Respondent Nos.7 to 9.
4. Learned counsel further submitted that the film is intended to project that the Bramhin and Barber community is exploiting the people as the means of their livelihood. It alleges and depicts that the Bramhins and Barbers are staking claims to a share in the yields of the other sections of the society whose occupation is connected to the one carried on by the Bramhins and Barbers. The professions of the Bramhins and Barbers are not declared illegal and unconstitutional, therefore Respondent Nos.7 to 9 have no right to impress upon the public and make believe that the occupation practiced by them are immoral. The rites and rituals are performed by the people voluntarily and there is no compulsion ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 13 exerted by the persons under whose domain those are performed, therefore t6he dialogues in the film are agitating and violate the fundamental rights of the petitioner's community. It is wildly alleged that this system of rites and rituals is evolved by the Bramhin community as a means of their sustenance, which is absolutely false and contrary to the Hindu texts, which substantiate them. It is an error to cast the Bramhins and Barbers as the progeny of "Shylock" the well known character in the Shakesperean play, "Merchant of Venice".
5. Learned counsel further submitted that the entire screenplay hinges around sapping the Bramhin and Barber community by hook or crook, being the soft target in the nature of a minority community. The film makers have no right to introduce something into the film which is not present in the novel, thus the film is a distorted version of the novel, on which it allegedly rests, ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 14 however the authorities under the Act of 1952, have failed in their duties while granting the certification to the film, which is not in tune with the Rules of 1983. The very novel on which the film is based is not a historical document but a piece of imaginative story for which it cannot be rendered a status of gospel.
6. During the course of arguments, the learned counsel has also made following submissions:
(1) The Petition is based on the official trailer of the film 'Dashkriya', released by the film makers. The trailer intends to draw more and more audience to watch the file, however in the instant case, the extracts of the film exhibited in the trailer spark a controversy, which is unacceptable to the constitutional mandate.
(2) The Oxford Dictionary 7th edition, defines ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 15 'Trailer' to be a 'Set of short extracts from cinema or television film, exhibited to advertise it in advance.
(3) The trailer intends to draw more and more audience to watch the film, however in the instant case, the extracts of the film exhibited in the trailer spark a controversy, which is unacceptable to the constitutional mandate.
(4) 'Dashkriya' are posthumous rites and rituals of a person, performed by all the sections of our society, all over as per the religious rituals, practices, ceremonies, observances prescribed by their respective community.
(5) There is no compulsion exerted by anyone to do so and are performed voluntarily by the society. It is a part of our religion and its origin is in the faith that the departed soul rests in the blissful silence and is not reborn in this world ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 16 of sorrow and mortality.
(6) Such rites and rituals are performed under the aegis or guidance of a particular community called "Kirwant".
(7) Performance of these activities, is neither illegal, nor unconstitutional, however, the movie picturises the theme borrowed from the novel with the same title, in such a way that it violently offends the occupation of a particular community in a slang and abusive language, which has the potential to endanger peace, harmony, brotherhood, symbiosis and co-existence prevalent in the society.
(8) The trailer threatens the fabric of social cohesion and our peaceful existence under the guise of freedom of expression, guaranteed by the Constitution.
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wwp13447.17 17 (9) Further, the dialogues, their utterances, gestures are with the deliberate intention to outrage the religious feelings by insulting the religions beliefs and violate the freedom of religion, its practices and propagation, guaranteed by the Constitution of India. (10) Further, insult to religion, outraging religious feelings, religious beliefs, uttering words with the deliberate intent to wound the religious practices are an offence punishable under the Indian Penal Code.
(11) The Petitioners apprehend that such a film, if allowed to be released, would cause irreversible and irreparable loss to the social and national interest, therefore there is a great urgency and necessity to say the release of the film to avert the impending injury.
7. Learned counsel appearing for the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 18 Petitioner has tendered across the Bar the typed copy of the alleged dialogues in the film "Dashkriya", which are as under:
"fouk vk'E;kpk fo/kh dj.ka Eg.kts Mk;oj fouk xkMh dqBwu vk.kyal iSda] xsyk vl'khy cksacyr pkG.k ?ksmu R;k ukFk ?kkVkoj ds'ko xq:th] rqeP;k f'kok; n'kfdz;k fo/kh ikj iMqu 'kdsy dk; bFks iSB.kkr lkodkj tjk ukFk ?kkVkoj jsV leku Bsok;pa c?kk dh] dks.kh dlgh rksaMkyk ;sbZy rs jsV ekxrkr gs lxGs fo/kh dj.ka Eg.kts FkksrkaM vkgs- g;k czk ºk.kkauhu vkiY;k iksVk ik.;kph O;oLFkk dj.;kph lks; dsyh vkgs gh- rw tUetkr /keZHkz"V vkgsl & fdjoar vkgsl rq- ;k iSB.k {ks=ke/;s nql&;k dks.kkpkgh gLr{ksi vkEgh [kiowu ?ks.kkj ukgh-
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wwp13447.17 19 eks{k fodk;pa dk; nqdku dk<yl dk; nykyk- iSB.kph vkczq v'kh Hkj jLR;koj ekaMq udk-"
. Learned counsel submits that the said dialogues/utterances violates the fundamental rights of the Petitioners and other citizens who belong to Hindu religion.
8. Learned counsel further submits that the Central Board of Film Certification should not have granted the certificate to release the film "Dashkriya" in view of the objectionable aforementioned dialogues which are in violation of fundamental rights as guaranteed under Article 25 and 26 of the Constitution of India. In support of aforesaid submissions, learned counsel appearing for the Petitioners invites our attention to exposition of law by the Supreme Court in the case of Commissioner of Police and others vs. Acharya ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 20 Jagadishwarananda Avadhuta and another1. Relying upon the observations in the said Judgment and in particular Paras-9, 86 and 87 thereof, learned counsel submits that, it is settled law that protection under Articles 25 and 26 of the Constitution extends guarantee for rituals and observances, ceremonies and modes of worship which form part and parcel of religion. Practice becomes part of religion only if such practice is found to be an essential and integral part. He further submits that, performance of "sharadha" and offering of "pinda" to ancestors are held to be an integral part of Hindu religion and religions practice. In support of his submissions, learned counsel also placed reliance upon the observations in the case of Raghunatha Rao Chakkilam vs. The Central Board of Film Certification and others2, Star India Pvt. Ltd. vs. State of Punjab and another3, Sheshammal and others, etc. etc. vs. 1 (2004) 12 S.C.C. 770 2 Manu/AP/0634/2013 3 MANU/PH/0909/2010 ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 21 State of Tamil Nadu4 and in the case of Sri Venkataramana Devaru and others vs. State of Mysore and others.
9. On the basis of above submissions, the Petitioners have prayed for the relief as stated herein above.
10. We have heard learned counsel appearing for the Petitioners at length. With his able assistance, we have carefully perused the background facts for filing the Petition, the grounds taken therein, the annexures thereto and also the submissions made across the Bar. Admittedly, in the present case, the Central Board of Film Certification has given permission to release the film "Dashkriya". The provisions of Section Section 5-B of the Cinematograph Act, 1952, reads as under:
4 (1972) 2 S.C.C. 11 ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 22 "5-B. Principles for guidance in certifying films.- (1) A film shall not be certified or 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 sub-section (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."
11. As observed herein above, already the Central Board of Film Certification has granted permission to release the film. Whether to grant ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 23 such certificate to release the particular film is an issue squarely within the adjudication domain of the Central Board of Film Certification and Film Certification Appellate Tribunal.
12. The contention of the counsel appearing for the Petitioners that because of release of such film and the afore mentioned objectionable utterances/dialogues, there is violation of fundamental rights as guaranteed under Article 25 and 26 of the Constitution of India, in our considered view, cannot be accepted, since there is no order gaging or prohibiting the persons from following the customs and rituals of Hindu religion and from exercising their fundamental rights as enshrined under Article 25 and 26 of the constitution of India. The Supreme Court in the recent order, which is passed on 16th November 2017 in Writ Petition (Civil) No.1119 of 2017 (Nachiketa Walhekar vs. Central Board of Film Certification and another), made the following ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 24 observations:
"The thrust of the matter is whether this Court should entertain the writ petition and pass an order of injunction directing the CBFC to delete the clip and further not to get the movie released in theaters on 17th November, 2017. It is worthy to mention that freedom of speech and expression is sacrosanct and the said right should not be ordinarily interfered with. That apart, when the respondent No.1, CBFC, has granted the certificate and only something with regard to the petitioner, which was shown in the media, is being reflected in the film, this Court should restrain itself in not entertaining the writ petition or granting injunction.
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wwp13447.17 25 Be it noted, a film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind. The human history records that there are many authors who express their thoughts according to the choice of their words, phrases, expressions and also create characters who may look absolutely different than an ordinary man would conceive of. A thought provoking film should never mean that it has to be didactic or in any way puritanical. It can be expressive and provoking the conscious or the sub-conscious thoughts of the viewer. If there has to be any limitation, that has to be as per the prescription in law.
The Courts are to be extremely slow to pass any kind of restraint order in such a situation and should allow the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 26 respect that a creative man enjoys in writing a drama, a play, a playlet, a book on philosophy, or any kind of thought that is expressed on the celluloid or theater, etc."
13. Time and again the Supreme Court has reminded that the Courts should be slow in interfering in such matters wherein the Central Board of Film Certification has granted permission to release the film. In the case of Nachiketa Walhekar, supra, the Supreme Court has observed that, an artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind.
14. It is not necessary for us to elaborate the reasons further. Admittedly, the film is based upon the book written by writer Shri Baba Bhand, namely "Dashkriya", which was published in the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 ::: wwp13447.17 27 year 1994. The contention of the counsel appearing for the Petitioners that what is tried to be conveyed in the film that is not traceable in the said book, was the subject matter in the exclusive domain of the aforementioned Central Board of Film Certification when permission was granted to release the film.
15. In that view of the matter, we are not able to persuade ourselves to grant any relief in favour of the Petitioners. Hence the Writ Petition stands rejected.
[MANGESH S. PATIL, J.] [S.S. SHINDE, J.] asb/NOV17 ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:03:08 :::