Ramesh Pimple vs Central Board Of Film ...
2004 Latest Caselaw 246 Bom

JUDGMENT

A.P. Shah, J.

1. Rule, Respondents waive service. By consent rule is taken up for final hearing.

2. This petition seeks a writ of certiorari or any other appropriate writ, order or direction quashing the decision dated August 11, 2003 of the Film the Certification Appellate Tribunal and directing the respondents to grant certificate to the documentary film entitled "Aakrosh" for its public exhibition under the Cinematograph Act, 1952.

3. The petitioner is a well known activist and film maker. He is producer of documentary films and writes scripts for films. In 2003 the petitioner produced a documentary film in one reel (running time 18 minutes) called Aakrosh on communal riots that took place in Gujarat in the year 2002. The documentary makes a sincere attempt to give expression to the sufferings and woes of the survivors of the holocaust. This is done in a series of interviews. The documentary has deliberately avoided images of gruesome violence and dead bodies. It has limited itself to the expression of anguish by the victims who are trying to come to terms with the meaninglessness of it all. The petitioner's documentary was selected for screening at Hyderabad Film Festival organized by South Asian Forum and Film Festival organized by the Surabhi Foundation in collaboration with Film Division and Times Foundation.

4. The petitioner applied to the Central Board of Film Certification on February 26, 2003 for a certificate under the Cinematograph Act, 1952 for U Certificate for unrestricted exhibition of the film. He received a letter (March 3, 2003) from the Regional Officer that the Examining Committee had come to the conclusion that the certificate cannot be granted to the petitioner for its exhibition. The said letter further informed the petitioner that he has a right to prefer appeal to the Revising Committee of the Board. The petitioner accordingly preferred appeal and received a letter (March 31, 2003) from the Board which communicated that the Revising Committee and the Board had come to the conclusion that the certificate cannot be granted for exhibition of petitioner's documentary as it violated the guidelines 2(xiii), 2(xvii) and 2(xviii). Aggrieved by the decisions of the Examining Committee and Revising Committee, the petitioner preferred appeal to the Film Certification Appellate Tribunal under Section 5(c) of the Cinematograph Act, 1952. The Appellate Tribunal, after hearing the petitioner confirmed the decision of the Board vide its decision dated August 11, 2003. The Tribunal inter alia observed that the film is one sided version of one particular community and if it is shown to masses, not only a selective crowd but anyone and everyone, is bound to provoke communal feeling and desire to retaliate and take revenge. The tribunal further observed that such a film endanger restoration of peace and tranquility and to quote the words of the tribunal ".........these riots are now history, and therefore, be forgotten by public to avoid repetition of such cruel acts". Besides that the tribunal was of the opinion that some fact finding enquiry committee/commissions are already examining the matter and collecting evidence and some judicial proceedings in Courts of law are also pending and, therefore, it would not be proper to exhibit such provocative documentary at this stage.

5. Before the hearing commenced the film was screened for the Court. The lawyers of both sides and the petitioner also remained present. As stated earlier the film is a collection of interviews of victims of the riots in Gujarat and the film has not depicted any violence or gory pictures and details. The film maker has attempted to portray the facts honestly while avoiding sensationalism, strong adjectives and provocative display. If the narratives are considered in the context of devastating destruction caused by riots they will generate sympathy in the minds of the viewers for the riot affected persons. We are unable to agree with the view of the tribunal that exhibition of the film would lead to further communal violence. The film creates more compassion than hatred and would shame and shock ordinary people and hopefully spur many of them to think and act positively.

6. In this petition fundamental point raised by Mr. Sebsatian, learned counsel for the petitioner is about the freedom of free expression guaranteed under our Constitution even for the medium of movies. The counsel urged that the film should be judged in its entirety from the point of its overall impact on the public. The writings of the film must be considered in a free, fair and liberal spirit in the light of the freedom of expression guaranteed under our Constitution. The learned counsel submitted that the tribunal has committed a serious error in observing that the documentary is one sided version of one particular community. It is the truthful reflection of what happened in different pans of Gujarat. Mr. Sebastian submitted that the citizens of this country should know what happened in Gujarat and sufferings of thousands of riot affected persons. Mr. Chavan, learned counsel appearing for the respondents, on the other hand, submitted that the result of permitting exhibition of the film likely to provoke communal feelings and desire to retaliate and take revenge. He submitted that Article 19(1)(a) gives freedom of expression but this right is subject to reasonable restrictions on the grounds set out in Article 19(2) of the Constitution and thus reasonable restrictions could be put on freedom of expression in the larger interest of integrity of India, security of the State, public order etc. The film 'Aakrosh' has been refused certificate in the larger interest of the country. Mr. Chavan emphasized that the scenes of agony and sufferings, mostly of one particular community are depicted and hence it is not a balanced film and, therefore the tribunal has rightly rejected the certificate to the petitioner.

7. Before adverting to the rival submissions of the parties we may briefly refer to the relevant provisions of the Cinematograph Act, 1952. The Act was enacted to provide for the certification of cinematograph films for exhibition and for regulating their exhibition. Section 3 of the Act empowers the Central Government to constitute a Board consisting of a Chairman, five whole time members and six honorary members, three of whom must be persons engaged or employed in the film industry, for the purpose of sanctioning films for public exhibition. Section 3B empowers the Board so constituted to constitute by special or general order an Examining Committee for the examination of any film or class of films, and a Revising Committee for re-considering, if necessary, the recommendations of Examining Committee. Any person desiring to exhibit any film has to make an application as provided by Section 4 to the Board in the prescribed manner for a certificate and the Board may after examination of the film sanction the film for unrestricted public exhibition or sanction the film for public exhibition restricted to adults or to direct the applicant to carry out such excisions and modifications in the film as it thinks necessary before sanctioning it for unrestricted public exhibition or for public exhibition restricted to adults or refuse to sanction the film for public exhibition. Section 4A provides for the examination of films by Examining Committee and in the case of difference of opinion amongst the members of the Examining Committee for further examination by the Revising Committee. Section 5A provides for certification of films. If after examination the Board considers that the film is suitable for unrestricted public exhibition or that although not suitable for such exhibition, it is suitable for public exhibition restricted to adults, it is required to issue a "U" certificate in the case of the former and an "A" certificate in the case of the latter. Section 5B provides for laying down principles for guidance in the matter of certification of films. This section to the extent relevant for our purpose reads as under :

"5B Principles for guidance in certifying films. -- (1) A film shall not be certified 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 interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or involve 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..."

8. Section 5C provides for the constitution of appellate tribunals, whereas Section 5D provides for appeals against the Board's decision refusing to grant the certificate or granting "A" certificate or directing the applicant to carry out any excisions or modifications. In addition thereto revisional powers have been conferred on 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 enquire into the matter and make such order in relation thereto as it thinks fit and where necessary give direction that the exhibition of the film should be suspended for a period not exceeding two months. Sub-section (5) of Section 6 lays down that the Central Government may, if satisfied in relation to any films in respect of which an order has been made by an appellate tribunal under Section 5B that it is necessary so to do in the interest of (i) the sovereignty and integrity of India or (ii) the security of the State or (iii) friendly relations with foreign States, or (iv) public order or decency or morality, make such enquiry into the matter as it deems necessary and pass such order in relation thereto as it thinks fit. Thereupon the Board must dispose of the matter in conformity with such order. Section 7 lays down the penalties for contravention of the requirement of Part II of the Act. Section 8 confers power to make rules and Section 9 empowers the Central Government to exempt the exhibition or export of a film or class of films from any of the provisions of the said part or of any rules made thereunder subject to such conditions and restrictions, if any, as it may impose. Part II of the Act deals with the regulation of exhibition by means of Cinematograph with which we are not concerned. This in brief is the scheme of the statute.

9. In exercise of power conferred by Sub-section (2) of Section 5B of the Act the Central Government has laid down the principles which should guide the authorities in sanctioning the films for public exhibition. These guidelines came to be revised in 1991 and Clause 1 thereof require the Board of Film Certification to ensure that :

"(a) the medium of film remains responsible and sensitive to the values and standards of society;

(b)     artistic expression and creative freedom are not unduly curbed;
 

(c)     certification is responsive to social change;
 

(d)     the medium of film provides clean and healthy entertainment; and
 

(e)     as far as possible, the film is of aesthetic value and cinematically of a good standard.
 

Clause (2) states that the Board of Film Censors shall ensure that :
  

"2.(vii) human sensibilities are not offended by vulgarity, obscenity or depravity;
 

(ix) scenes degrading or denigrating women in any manner are not presented;
 

(x) scenes involving sexual violence against women like attempt to rape, rape or any form of molestation or scenes of a similar nature are avoided and if any such incident is germane to the theme, they shall be reduced to the minimum and no details are shown."
 

In following these guidelines or principles the Board of Film Certification has been cautioned to ensure that the film is judged in its entirety from the point of view of its overall impact and is judged in the light of contemporary standards of the country and the people to which the film relates, provided that, the film does not deprave the morality of the audience.
 

10. It would be thus seen that censorship is permitted mainly on social interests specified under Article 19(2) of the Constitution with emphasis on maintenance of values and standards of society. Therefore, the censorship by prior restraint must necessarily be reasonable that could be saved by the well accepted principles of judicial review.
 

11. The decision of the Supreme Court which is most relevant in the present case was delivered by the Constitution Bench in K.A. Abbas v. Union of India, . K.A. Abbas, a noted Indian journalist and film producer produced a short documentary film called "A Tale of Four Cities". In that film he sought to contrast the self-indulgement life of the rich in metropolitan cities with the squalor and destitution of labouring masses who helped to construct the imposing buildings and complexes utilized by the rich. The film also goes on to explore the theme of exploitation of women by men, dealing in particular with prostitution. Abbas applied to the Board of Film Censors for a "U" certificate, permitting unrestricted exhibition of the film. He was informed by the regional officer that the Examining Committee had provisionally concluded that the film should be restricted to adults. The Revising Committee concurred in this result, whereupon Abbas, after exchanging correspondence with the Board, appealed to Central Government. The government decided to grant "U" certificate provided that the scenes in the red light district were deleted from the film. Abbas challenged the action of the Board mainly on four issues out of which two did not survive when the Solicitor General stated before the Court that the government would set on foot legislation to effectuate the policies at the earliest possible date. The two issues which survived thereupon were : (a) that pre-censorship itself cannot be tolerated under the freedom of speech and expression; (b) that even if it were a legitimate restrain on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action.

12. With regard to the power of pre-censorship, Hidayatullah C. J. observed :

"49. We may now illustrate our meaning how even the items mentioned in the directions may figure in films subject either to their artistic merit or their social value overweighing their offending character. The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. 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 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 relationships as banned in toto and forever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. 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 censor's scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Laius 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 parricide 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 Verrier Elwyn's Phulmat of the Hills or the same episode in Henryson's Testament of Cressaid (from where Verrier Elwyn borrowed the idea) would never see the light of 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 Nadirshah 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.

50. Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor's scissors but how the theme is handled by the producer. It must, however, be remembered that the cinematograph is a powerful medium and its appeal is different. The horrors of war as depicted in the famous etchings of Goya do not horrify one as much as the same scenes rendered in colour and with so and movement, would do. We may view a documentary, on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra but a documentary from them as a practical sexual guide would be abhorrent."

13. In S. Rangarajan v. P. Jagjivan Ram, the Court emphasized that the freedom of expression means the right to express one's opinion by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and the right to propagate or publish opinion. The Court concluded in para 53 as under :

"We end here as we begin on this topic. Freedom of expression which is legitimate and constitutionally protected cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restrictions must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operation is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself."

14. In Maneka Gandhi v. Union of India, Bhagwati J., as he then was, observed :

"Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential".

15. In Sakal Papers (P) Ltd. v. Union of India, , Mudholkar, J. said :

"......... The Courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved."

16. In Indian Express Newspapers (Bombay) Pvt. Ltd, v. Union of India, the Court pointed out that the constitutional guarantee of the freedom of speech and expression is not so much for the benefit of the press as it is for the benefit of the public. The people have a right to be informed of the developments that take place in a democratic process and the press plays a vital role in disseminating this information. Neither the Government nor any instrumentality of the Government or any public sector undertaking run with the help of public funds can shy away from articles which expose weaknesses in its functioning and which in given cases pose a threat to their power by attempting to create obstacles in the information percolating to the members of the community.

17. From the above resume of the judgments it is evident that the freedom of free expression guaranteed by Article 19(1)(a) is of cardinal value in a democratic government. Tolerance of a diversity of view point and the acceptance of freedom of speech of those whose thinking may not accord a main stream, are the cardinal values, which lie at the very foundation of democratic form of government. Respect for and tolerance of a diversity of view point is what ultimately sustain a democratic society and government.

18. In Ramesh v. Union of India, which is popularly known "Tamas" case cited with approval the observations of Vivian Bose, J., as he then was, in the Nagpur Bench in the case the Bhagwati Charon Shukla v. Provincial Government AIR 1947 Nagpur 1 where he has indicated the yardstick by which this question has to be judged. There at page 18 of the report Vivian Bose J. 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. Thus it is the standard of ordinary reasonable man or as they say in English law, "the man on the top of Clampham ombibus". This principle was affirmed and reiterated in S. Rangarajan v. P. Jagjivan Ram. The Court observed that the standard to be applied by the Board or Courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man.

19. The petitioner's documentary film "Aakrosh" brings out the agony and anguish of victims of communal riots which took place in Gujarat in early part of 2002. Gujarat burned and was convulsed with barbarous violence for over 40 days from February 27, 2002 when the Sabarmati Express, running from Faizabad to Ahmedabad, was attacked and torched at Godhra killing 58 passengers, may of them women and children. Even as the Godhra tragedy was roundly condemned, the anticipated backlash took on the dimensions of a holocaust primarily aimed at the Muslim community. This soon engulfed central, north and northeastern Gujarat, including Ahmedabad, Vadodara and part of the eastern tribal belt. Nearly 800 persons were killed according to the official count, unofficial estimates are far higher. It was a slaughter of the innocents. The brutalities were unprecedented, especially against women. The tragic events in Gujarat, starting with the Godhra incident and continuing with the violence that rocked the State for over two months, have greatly saddened the nation. It is no doubt true that it is essential to heal the wounds and to look to a future of peace and harmony. But we are unable to share the views of the tribunal that the riots are now history, and therefore, be forgotten by public to avoid repetition of such cruel acts. It is when the hour of conflict is over it may be necessary to understand and analyze the reason for strife. We should not forget that the present state of things is the consequence of the past; and it is natural to inquire as to the sources of the good we enjoy or for the evils we suffer,

20. In Tamas case where the exhibition of telefilm depicting communal tension and violence during pre partition period in India was strongly opposed on a similar ground that there was real danger of the film inciting people to communal violence and to commit other offences arising out of communal disharmony, the Court observed that ".....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 our future with wisdom and care. Awareness in proper light is a first step towards that realization". It is known fact that riots which took place after the incident in Godhra mainly targeted Muslim community and that community suffered maximum in the riots. Incidents of riots occurred in Gujarat are extensively reported in news papers and on electronic media. The national print and electronic media meticulously documented the holocaust especially targeting of Muslim homes, mohallas, shops and establishments, factories, hotels and eateries and other economic assets as well as shrines. Sufferings of victims as an aftermath of the riots are also meticulously shown on electronic media and there seems to be nothing new or starting in the narratives in the documentary. The petitioner to his credit has completely avoided sensationalism and excitement. He has sincerely tried to portray the sufferings of the riot affected persons. Message of movie is a message of unity and peace and judged in its entirety we are unable to hold that the exhibition of the film would lead to communal violence.

21. In S. Rangarajan's case the High Court was of the opinion that public reaction to the film, which seeks to change the system of reservation is bound to be volatile. The High Court also stated that people of Tamil Nadu who have suffered for centuries will not allow themselves to be deprived of the benefits extended to them on a particular basis. The Supreme Court held that the reasoning of the High Court runs afoul of the democratic principles to which we have pledged ourselves in the Constitution. In democracy it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means. The Court then proceeded to observe as follows :

"The problem of defining the area 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 between the interest of freedom of expression and special interest. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations creates by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote conjectural or far fetched. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be in separately locked up with the action contemplated like the equivalent of a "spark in a power keg".

22. In Tamas case the Court observed :

"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 communication; 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 interest, scenes depicting mutual respect and tolerance, scenes showing comradeship, help and kindness which transcend the barriers of religion. Unfortunately, modern developments 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 analyze the causes of such conflicts ...... 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."

23. We have viewed the film from point of view of an average man and we feel that the tribunal was not right in observing that the movie would incite people and would lead to further violence. It is not correct to say that average people will not learn their mistakes of the past and perhaps will not commit same mistake again. The documentary creates an impression of the message of peace and co-existence and compassion for the people who suffered in the riots. Therefore in our opinion the decision of the tribunal as well as the decisions of the Examining Committee and Revising Committee cannot be sustained.

24. Rule is accordingly made absolute in terms of prayer Clauses (a) and (b). Respondents are directed to grant appropriate certificate for the exhibition of the film "Aakrosh" within 12 weeks from today.