Bombay High Court
Phantom Films Pvt. Ltd. And Anr vs The Central Borad Of Cetification ... on 13 June, 2016
Bench: S.C. Dharmadhikari
Judgment-WPL.1529.2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1529 OF 2016
1. Phantom Films Pvt. Ltd. }
a company incorporated under }
the Companies Act, 1956, }
having its office at Grandeur, }
8 th floor, opp. Gundecha }
Symphony, Veera Desai Road, }
Andheri (W), Mumbai - 400 053 }
}
2. Mr. Vikas Bahl }
an adult Indian Inhabitant, }
having his office address at
ig }
Grandeur, 8 th floor, }
opp. Gundecha Symphony, }
Veera Desai Road, Andheri (W), }
Mumbai - 400 053 } Petitioners
versus
1. The Central Board of Film }
Certification through its Regional }
Office at 91-E, Bharat Bhavan, }
Welkeshwar Road, }
Mumbai 400 006 }
}
2. Union of India }
through the Ministry of }
Information and Broad Casting, }
New Delhi } Respondents
Mr. Ravi Kadam - Senior Advocate with
Mr. Ashish Kamat, Mr. Ameet Naik,
Mr.Madhu Gadodia and Mr. Kunal Mehta
i/b. M/s. Naik Naik and Co. for the
petitioners.
Mr. Advait M. Sethna with Mr. D. N.
Mishra with Ms. Ruju Thakker and
Ms.Richa Mishra for the respondents.
Page 1 of 89
J.V.Salunke,PA
::: Uploaded on - 27/06/2016 ::: Downloaded on - 30/07/2016 05:11:21 :::
Judgment-WPL.1529.2016.doc
CORAM :- S. C. DHARMADHIKARI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATED :- JUNE 13, 2016
ORAL JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1. Rule. Respondents waive service. By consent, Rule is made
returnable forthwith.
2. By this petition under Article 226 of the Constitution of
India, the petitioners seek a writ of certiorari or a writ in the
nature of certiorari or any other appropriate writ, order or
direction calling for the record of the decision Annexure I-4 to the
writ petition and after scrutinising the legality, validity and
correctness thereof to quash and set aside the same. The next
relief is that of issuance of a writ of mandamus or a writ, order or
direction in the nature thereof, directing respondent no. 1 to
forthwith and/or in such time as this court deems fit and proper
to issue in favour of the petitioners a certificate styled as "A"
certificate in respect of the film "Udta Punjab", without the same
being subjected to any of the cuts/conditions set out in the said
decision.
3. This writ petition was placed before us on 8th June, 2016. It
was adjourned to 9th June, 2016. On that date, a copy of the order
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
dated 6th June, 2016, along with all annexures thereto came to be
served on the petitioners. Thereupon, at the request of the
petitioners, we granted leave to amend.
4. Aware as the petitioners were of a preliminary objection on
the point of maintainability of the petition in the face of the
remedy available to them of an appeal under section 5C of the
Cinematograph Act, 1952, it was submitted by Mr. Kadam,
learned Senior Counsel appearing for the petitioners that in
terms of section 5D of this Act, the constitution of the appellate
tribunal envisages that it should consist of a Chairman and not
more than four other members appointed by the Central
Government. A person shall not be qualified for appointment as
the Chairman of the tribunal unless he is a retired Judge of a High
Court or is a person who is qualified to be a Judge of a High Court.
5. Mr. Kadam pointed out that though an appeal was preferred
by the petitioners, they were informed that the Chairman of the
tribunal is unavailable till 17th June, 2016. The submission of
Mr.Kadam was that the petitioners have determined and decided
the date of release of the film and that is 17 th June, 2016. They
would suffer considerable loss and prejudice in the event the film
is not released on that date. The theaters have been booked in
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
advance, the prints have been despatched and bearing in mind
the investment so also considering the mandate of Article 19(1)
(a) of the Constitution of India, this writ petition be entertained.
Mr.Kadam submitted that availability of an alternate equally
efficacious remedy is not an absolute bar for entertaining a writ
petition under Article 226 of the Constitution of India. It is a rule
of discretion and prudence rather than a legal bar. He would,
therefore, submit that the petition be entertained.
6.
After the initial hearing and the petition was amended,
Mr.Sethna appearing for the respondents took instructions and
stated that the Chairman would become available and the
petitioners, therefore, should press their appeal.
7. After we heard the counsel on this limited point, we were of
the opinion that since larger questions and going to the root of the
freedom guaranteed by Article 19(1)(a) of the Constitution of
India are involved in this writ petition, it would be desirable to
hear the writ petition on merits rather than to uphold the
preliminary objection. Further, a ready film being subjected to a
viewing and now review by the 1st respondent consuming so much
of time there is no guarantee that the deadline of release set can
be met by a belated decision of the appellate authority. We had
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
the benefit of detailed submissions by both sides on the
constitutional, legal and factual issues. The basic facts are
admitted. The respondents did not desire to put any counter
affidavit. Their counsel was ready to address the court after we
gave him sufficient time. We, accordingly, overrule the above
objection.
8. We now turn to the facts.
9.
Petitioner no. 1 is a private limited company incorporated
under the Indian Companies Act, 1956. Petitioner no. 2 is a
citizen of India and share holder and director of petitioner no. 1.
10. It is stated that petitioner no. 1 company is engaged inter
alia in the business of production of cinematograph films. It has
to its credit the production and release of critically acclaimed and
commercially successful films. Petitioner no. 1 is producer of the
film "Udta Punjab" (hereinafter referred to as "the said film"),
which is a work of fiction. It depicts the problems faced by the
people of the State of Punjab on account of drug addiction. The
film, therefore, deals with socially and morally relevant subject.
After the film was ready, on 10th May, 2016, the petitioners
applied to respondent no. 1 for certification of the film for
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
exhibition. That was invoking the powers of the said board, a
statutory authority constituted under the Cinematograph Act,
1952. It is stated that this respondent no. 1 board is statutorily
empowered to examine and certify cinematograph films prior to
their exhibition. In exercise of such powers, the Act empowers
the Government to frame Rules. The Cinematograph
(Certification) Rules, 1983 (hereinafter referred to as "the said
Rules") have been framed. To guide the issuance of certificates,
the respondents can take assistance of the guidelines styled as
"Guidelines for Certification of Films for Public Exhibition" issued
by the Central Government dated 6th December, 1991.
11. The case of the petitioners is that prior to the release of this
film and since it requires that certification, an application was
made on 10th May, 2016. It was notified that the release was
scheduled on 17th June, 2016. Petitioner no. 1 sought the
certificate for exhibition of the film to adults styled as 'A'
certificate. It is their case that the first respondent, after
examining the film on 18th May, 2016, conveyed to the petitioner
on 24th May, 2016 that it's Chairperson had referred the subject
film to Revising committee. The complaint of the petitioners is
that no reason was assigned nor a copy of the report or remarks
in that regard were made available to them. The petitioners
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
submit that the Revising Committee examined the subject film on
3rd June, 2016 and it is statutorily obliged to make its report
within three days. At the time of institution and filing of this
petition, its decision was not conveyed.
12. It is pertinent to note that the first respondent on 8 th June,
2016, communicated to the petitioners its decision. Based on
that decision, the writ petition has been extensively amended. We
would refer to the amended grounds a little later.
13. It is the claim of the petitioners that expenditure of
approximately Rs.24,50,00,000/- is incurred for production of
the said film. The said film is seeking to depict the prevailing
alarming drug addiction problem faced by the State of Punjab. It
is a socially relevant film. For making the film, various contracts
and arrangements have been executed and made with third
parties. It is stated that such third parties are cinema owners,
advertising and marketing firms, agents etc. Till date, the
petitioners have expended a sum of Rs.5,00,00,000/- on
promotional and advertising expenses. There are about 1000
theaters and 1800 screens booked for the subject film. It is in
these circumstances that the sum of Rs.29,50,00,000/-
approximately has been spent and expenses incurred.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
14. As mandated, the application for certification in the
prescribed form was made. Bearing in mind the topic and subject
of the film, the petitioners sought 'A' certificate. The scheduled
date was mentioned in the said application. It is the case of the
petitioners that there was enormous procedural delay in taking a
decision on this application. It is submitted that until the writ
petition was moved in this court complaining about the total
inaction on the part of respondent no.1, nothing was
communicated. It is only on the eve of the release and some days
before it that the impugned decision has been communicated. To
be precise, the petitioners complain that on the institution of the
writ petition on 8th June, 2016, post filing and moving it before
this Division Bench, at about 12.30 noon on that date the
petitioners received a copy of the decision. The decision was
taken on 6th June, 2016.
15. Since the whole controversy and issue revolves around this
decision, we reproduce the same. The same reads as under:-
"-1-
Regd. A. D./By Hand
No. DIL/230/2016-MUM/48 "A with Cuts"
CENTRAL BOARD OF FILM CERTIFICATION
91-E, Bharat Bhavan,
Walkeshwar Road,
Mumbai 400 006
Date: 06/06/2016
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
To,
PHANTOM FILMS PVT. LTD.
J-6, HEMLATA ADITYA
BUNGLOWS, MILLAT NAGAR,
ANDHERI WEST - 400 053
Mumbai
Maharashtra
Sir/s,
With reference to your application to the Central
Board of Film Certification dated 10/05/2016 for a
certificate under the Cinematograph Act, 1952 to exhibit
the film entitled "UDTA PUNJAB" (HINDI). I am directed
by the Board to inform you that the film has been viewed
by the Revising Committee and the Board has come to
the conclusion that the film is not suitable for unrestricted
public exhibition but may be suitable for public exhibition
restricted to adults provided you carry out the
excisions/modifications in the film listed in the Annexure
and that you should accordingly be requested to carryout
the excisions/modifications, so that the film may be
sanctioned for public restricted to adults.
The above decision has been taken after
a. Considering the submissions made by you/your
representative before the Committee during the personal
hearing, the opportunity for which was given to you.
X b. Offering you an opportunity for making oral
submissions, which you did not avail of.
In case you are aggrieved by the decision of the
Board based on the recommendation of the Revising
Committee you may, if you so desire, prefer an appeal to
the FCTT. The appeal to the FCAT be made within 30
days. If no reply is received from you within the said
period the Board will proceed to take action as indicated
above.
The receipt of this communication may kindly be
acknowledged.
Yours faithfully,
Regional Officer
N. B. 1. In case of reduction of scene, Duration of
portion retained may be indicated.
2. Cuts may be submitted along with affected
Cassettes.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
3. Cuts from positive, negative and sound may be
joined and given in the serial order by
inserting white piece in between cuts.
Reasons for grant of "A with Cuts" certificate to the film
subject to the following cuts:
The theme, presentation, language and visuals of the
film are not suitable for non-adults.
Cut
Location Cut Description Guidelines
No.
1 Delete sign Board of Punjab in the beginning 5B, 2(xiv)
2 Delete Punjab, Jalandhar, Chandigarh, 5B, 2(xiv)
Amritsar, Tarantaran, Jashanpura, Ambesar,
Ludhiana and Moga be deleted from
background and dialogue wherever it occurs.
3 From song no. 1 delete the word 'Chittave' and 2(vii)
ig 'harami' everywhere.
4 From song no. 2 delete 'Tom di cock jevhe 2(vii),
chitti chitti cock' and 'coke cock' in the entire 2(viii)
song
5 Delete Behendchod, Behenchodo, Bund, Tatte, 2(vii), 2(ix)
Gandia, Gandu, laudu, haramzadi, matherchod,
chusa hua aaam, kutti, maiyove, kudi occurs.
Reg. Tommy, Behenchodo, Behenchod before
TCR 1.31. allowed and after that all to be
deleted.
6 Delete the word 'Election', 'MP', 'Party' from 5B 2(xiv)
party worker, MLA, Punjab, Parliament.
7 .38. From the song No. 3, delete the visuals of 2(vii)
scaratching/itching side portion by Sardar.
8 Delete the closeup shots of injecting the drugs 2(vi)
wherever it appears
9 2.06 Delete the shot of urinating by Tommy in front 2(vii)
of the crowd.
10 2.15 Delete the line 'Jamin Banzar te Aulad Kanjar'. 2(vii)
11 Delete the name of dog as 'Jacky Chain'. 2(vii)
12 First disclaimer should be audio/video and to
be changes as - 'The film focuses on the rising
menace of drugs and the war against drugs and
is an attempt to show the ill-effects of drugs on
today's youth and the social fabric. We
acknowledge the battle against drugs being
fought by the government and police. But this
battle cannot be won unless the people of India
unite against the menace.
13 Second disclaimer of fiction to be increased
according to audio/video
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
Note: Most of the spoken language of the film is in
Punjabi
Regional Officer"
16. Mr. Kadam, learned Senior Counsel appearing for the
petitioners would submit that the sequence of cuts and deletions
would disclose as to how the first respondent has approached the
matter. Mr. Kadam would submit that a producer of a film and
after incurring so much of expenditure and making a huge
investment, expects the statutory authorities to act reasonably
and expeditiously. It is submitted that if the respondent decides
to go on referring the films for viewing by several committees,
then, the least that was expected is that the Chairman discloses
the reasons as to why he referred film on his own to a Revising
Committee. True it is that the Chairman possesses such powers,
but the basis for exercising such powers ought to be known to the
parties like the petitioners. They should be informed as to why
there is a need for the film to be referred to the Revising
Committee. Mr. Kadam would submit that it is not mandatory
that each and every film should be referred to such committee.
He would invite our attention to the Cinematograph Act, 1952.
Mr. Kadam submits that section 4 of the Act provides for
examination of films. Prior thereto, Mr.Kadam would invite our
attention to the object and purpose of the Act. He would submit
that this is an Act dealing with two separate matters, namely, (a)
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
examination and certification of films as suitable for public
exhibition and (b) regulation of cinemas including their licensing.
Mr. Kadam relies upon the definition of the words "adult"
appearing in section 2(a), "Board" appearing in section 2(b) and
the term "film" appearing in section 2(dd). He would also rely
upon the definition of the term "prescribed" as defined in section
2(f) to mean prescribed by rules made under this Act. Mr.
Kadam invites our attention to part II of the Act and submits that
section 3 therein enables the Central Government by notification
in the official gazette to constitute a board to be called the Board
of Film Certification, which shall sanction the film for public
viewing. It comprises of a Chairman and not less than twelve and
not more than twenty five other members appointed by the
Central Government. Section 4 of the Act, according to
Mr.Kadam requires an application to be made by a person
desiring to exhibit any film in the prescribed manner to this
board for a certificate in respect thereof. Mr. Kadam would
submit that the board, after examination or having the film
examined in the prescribed manner, either sanction the film for
unrestricted public exhibition, sanction the film for public
exhibition restricted to adults or sanction the film for public
exhibition to members of any profession or any class of persons
having regard to the nature, content and theme of the film. Mr.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
Kadam would rely upon and emphasise the words "having regard
to the nature, content and theme of the film". He would submit
that the board is empowered to direct the applicant to carry out
excisions or modifications in the film as it thinks necessary
before sanctioning the film for public exhibition under any of the
foregoing clauses. Equally, the board may refuse to sanction the
film's exhibition. Sub section (2) of section 4 requires the board
to act after giving an opportunity to the applicant for
representing his views in the matter. That is to be done provided
the board decides to take action under proviso to clause (i),
clause (ii), clause (iia),clause (iii)or clause (iv)of sub-section (1)
of section 4.
17. Mr. Kadam submits that there are advisory panels in place.
The certification of films is contemplated by section 5A and
Mr.Kadam would submit that the subsections of this section
would denote as to how the certification after examining a film or
having it examined in prescribed manner has to be done.
Mr.Kadam submits that the guiding principles in certifying films
are to be found in section 5B.
18. Mr. Kadam's argument is that Article 19(1)(a) of the
Constitution of India guarantees freedom of speech and
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
expression. That takes within its import the right of a citizen to
produce and make a film so also exhibit the same. The right
guaranted by Article 19(1)(a) includes a further guarantee to
exhibit a film for viewing by the public. Therefore, a certificate is
sought under the Cinematograph Act, 1952. Bearing in mind the
overriding constitutional guarantee, which cannot be diluted nor
whittled down save and except in the opinion of the authority
competent to grant the certificate a film is not liable to be certified
as it or any part of it is against the interest of 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. Thus, Mr. Kadam's submissions on
this point are that the citizens' right to freedom of speech and
expression ought to be safeguarded and protected at every cost.
For the exercise of such right meaningfully and purposefully, the
State must ensure that the certification is expedited. A
certificate cannot be withheld or refused save and except in cases
where the board is of the opinion it would be necessary to refuse it
to protect the sovereignty and integrity of India, security of State
etc. The opinion that the board forms for this purpose ought to be
based on definite and relevant material. The power to refuse the
certificate is to be exercised in the manner set out in section 5(2)
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
of the Act. If the board acts contrary thereto, then, its decision
can be set aside in terms of the power of judicial review.
19. In assailing the impugned order, Mr. Kadam would submit
that the power to make rules conferred in the Central
Government is for the purpose of effective implementation of the
provisions of the Act. Accordingly, Mr. Kadam relies upon the
Cinematograph (Certification) Rules, 1983. He would submit that
the Rules, apart from enlisting various authorities and officers of
the board also provides for application for examination of films.
Apart from the procedural aspects, Mr. Kadam submits that once
the film has been presented for such certificate along with the
application revealing all the details thereof, then, it is for the
various committees including the Revising Committee to take a
decision. The Rules incorporate a mandate that the presiding
officer of the Revising Committee shall within three days sent
recommendations of all members of the Revising Committee to
the Chairman and where the Chairman is away from the centre
where the film is examined, by registered post [Rule 24(10)].
Thereafter, the decision has to be communicated. Mr. Kadam
submits that Rule 26 provides for issuance of a certificate subject
to removal of portions of film. In that regard, our attention is
invited to Rule 26. Mr. Kadam submits that the film in question
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
was always intended to be exhibited to the adult members of the
public. It was not meant to be certified for universal exhibition.
The certificate applied for was a "A" certificate. The alphabet "A"
stands for adult which term is defined to mean a person who has
completed his eighteen years. True it is that even while granting
such certificate, the board is empowered to insist that a portion or
portions objected to by it shall be removed from the film. Yet,
that power has to be exercised, fairly, reasonably and not in an
arbitrary or discriminatory manner. The exercise of the power
should not in any manner violate the constitutional guarantee of
freedom of speech and expression. Mr. Kadam would submit that
if the impugned order is tested on such touchstone and the
suggested cuts are considered accordingly, it would negate this
constitutional guarantee completely. Relying upon the grounds in
the writ petition, Mr.Kadam would submit that in the instant
case, the mandate emerging from section 5B of the
Cinematograph Act, 1952 and Article 19(1)(a) of the
Constitution of India, is completely violated. He would submit
that it is not for the board to determine as to how the subject of
the film should be dealt with by the maker or producer of a film.
The treatment of the subject and prior thereto the choice of the
same or the selection of the theme is entirely left to the creative
team. That is the real purport of the right guaranteed by Article
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
19(1)(a) of the Constitution of India. The cuts or excisions if at
all to be directed must have a nexus with the object sought to be
achieved by the Act. Merely because the board holds a opinion
that some part or portion is unnecessary or is not required
considering the story of the film, that would not enable it to cut or
excise the film in that manner. Mr.Kadam would submit that if
the impugned order is considered in the backdrop of the
guidelines, then, it would be evident that there is complete non
application of mind. He would submit that there are 13 cuts,
which are suggested. If one goes serially and cut by cut, that
would demonstrate as to how the board in this case, instead of
applying its mind and to the central theme so also the feature film
in its entirety, has passed a blanket direction that the theme,
presentation, language and visuals of the film are not suitable for
non adults. True it is that it is meant to cater to the adult
audience and that is the certificate applied for still the cuts from
the film should, as directed, not reflect any pre-conceived notions
of censoring films. That would kill creativity. Mr. Kadam submits
that the deletion of the sign board of Punjab in the beginning of
the film in the opinion of the board violates section 5B and the
guidelines, which indicates as to how the board thoughtlessly and
mindlessly goes about its job.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
20. Before we proceed to note down the other submissions and
based on each cuts, we must refer to the argument of Mr. Kadam
that the guidelines for certification of films for public exhibition
have to be viewed as guidelines and not as a statute by itself.
Mr.Kadam would submit that the objectives of film certification
are to ensure that the medium of film remains responsible and
sensitive to the values and standards of society, artistic
expression and creative freedom are not unduly curbed,
certification is responsive to social change. The medium of film
provides clean and healthy entertainment and as far as possible,
the film is of aesthetic value and cinematically of a good standard.
Mr. Kadam would submit that true it is that the certification work
is performed by experts in the field. In certification of films by
experts, judicial review of their decision is permissible on
restricted grounds. However, if the order passed by them and
decision taken eventually runs counter to the objectives of the
film certification completely and negates the constitutional
guarantee, then, this court can interfere in its writ jurisdiction.
This court can also interfere in the decision of experts if it is
completely arbitrary and perverse in the sense that no
reasonable man placed in the position of board members would
arrive at a conclusion which is arrived at and impugned in the
present case. He would also submit that if the decision is coloured
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
by considerations not wholly relevant and germane, then as well
this court must interfere in writ jurisdiction. The writ
jurisdiction is also available in the event the decision is vitiated
by malafides.
21. Proceeding on these lines, Mr. Kadam would submit that
deletion of sign board of Punjab in the beginning is stated to be
referable to guideline 2(xiv). That guideline state that the Board
of Film Certification shall ensure that the sovereignty and
integrity of India is not called in question. Mr. Kadam criticises
the approach of the board by submitting that mere depiction of a
sign board of the State in the beginning by itself and without
anything more calls in question the sovereignty and integrity of
India is a conclusion difficult to appreciate and understand. He
would submit that the whole film is based on the drug menace
across the country and rampant in Punjab. The film depicts the
character of a pop singer. He is rather a rock star and very
popular across the state so also internationally. It is such a
character, who takes to drugs and by regular consumption
leading to addiction, the film depicts his downfall. In the course of
such downfall, he is on the verge of creative bankruptcy. He
wishes to reform and change himself. There are other characters,
namely, a girl who is forced to work in the fields in Punjab after
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
her father's death. She is a young girl and has her dreams. When
she comes across a packet and which is thrown at her feet, it is
natural that she is tempted to open it. Not only is she tempted to
open it, but she tastes the contents thereof. Now from which part
of the world the packet is flung across is inconsequential, the
attempt of the filmmaker is to depict as to how a young and
innocent girl opens it and is attracted to its contents. She is not
aware of the fact that the same is a poisonous and dangerous
substance totally unfit for human consumption.
ig Through her
character, the vulnerability and susceptibility of the young is
shown. The film also depicts a narcotics department cop, who is
aware of the destruction caused by drugs all around. However, all
of it changes when the drug menace hits somebody very close to
him. That is how he realises and then as shown in the company of
one full time doctor and part time NGO worker he decides to fight
the rising drug menace in the State. It is how these four
characters are fighting the menace of drugs is depicted in the
film. Hence, the focal and central theme is about the menace of
drugs and how it brings about ones downfall. The accessibility to
and availability of drugs being easy and effortless, how the
controlling channels are required to act strictly and how the drug
menace has taken over the State and the youth inhabiting it is
what is depicted and presented. In such a work, merely because
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
one sign board appears and showing the name of the State by
itself does not call in question the sovereignty and integrity of
India. Mr. Kadam would, therefore, submit that there is no
material on record supporting the cut at Sr. No.1. Equally, cut at
Sr. No. 2 is vitiated by non application of mind. A blanket deletion
is suggested of the names of some cities in the State of Punjab.
The deletion has to be effected from the background and dialogues
wherever it occurs, which, according to Mr. Kadam, would
destroy the theme of the film. If the story line is depicting the
events in one State and suggestive of the menace of drugs in that
State, then, reference to some towns and cities is bound to be
made. By such reference and completely ignoring the central or
focal theme, the sovereignty and integrity of India is not affected
much less adversely.
22. Then, Mr. Kadam submits that cut No. 3 is from song no. 1.
It seeks to delete two words from that song and everywhere. That
cut is referable to the board's responsibility to ensure that human
sensibilities are not offended by vulgarity, obscenity or depravity.
Mr. Kadam would submit that this song was exhibited by the
producers and directors in the promotional exercise. In the
promotion material or promo this song was incorporated. That
promo or trailer was also presented for certification by the board.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
The board certified the visuals and this song in the promo. That
was certified as fit for viewing without any cuts. These words are
a part of the song-line. If the song has already hit the screen and
as a part of the promo it has been shown on the television
channels, then, one fails to understand, according to Mr. Kadam,
how this cut from the film now serves any purpose. Apart
therefrom, Mr. Kadam would submit that the words which are
sought to be deleted from the song as suggested cut nos. 3 and 4
do not in any manner offend human sensibility. One line or one
word cannot be picked from the whole song and read out of
context or in isolation. There is no vulgarity, obscenity or
depravity. It is a depiction of how a rock star, after being taken
over by the drugs and under influence of the same, on occasions,
forgets the lyrics and the words in a song and utters abuses. The
petitioners are only depicting fictional characters shown as drug
addicts and they often use such cuss words in their dialogue and
conversation. The subject film seeks to convey that drug abuse
leads to loss of control. The normal talk and movement of a
human being is affected by regular consumption of drugs. If one
desires to only pick certain words from the song and not see the
contents as a whole, then, possibly, such a conclusion can be
reached. However, the guidelines are not to be read as a binding
document. Guideline nos. (vii) and (viii) have been invoked as far
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
as cut no. 4 is concerned. In the opinion of the board, the words
have dual meaning. Mr.Kadam would submit that mere usage of
dual meaning words would not be enough to arrive at a conclusion
that such cuts have to be imposed. The dual meaning words must
be found to be catering to baser instincts. Mr. Kadam submits
that it cannot be held that the song is arousing baser instincts.
The song appears as a integral part of a continuing story and does
not glorify consumption of drugs far from actively supporting it.
It must be viewed in the context of the storyline and the theme of
the film which deprecates drug usage.
23. Similarly, with regard to cut no. 5, Mr. Kadam would submit
that this is also referable to another guideline in addition to
guideline no. 2(vii). That is guideline no. 2(ix). That guides the
board to ensure that scenes degrading or denigrating women in
any manner are not presented. Mr. Kadam would submit that the
abuses and the expletives in the mouth of some characters as are
to be found in the film are to be viewed in the backdrop of the
setting, the story and theme of the film. That shows as to how
some rustic villagers would speak in a rough tone. If that is how
the fictional characters are and the writer, maker, producer and
director of the film depict how because of officials the State is
caught in a drug menace, then, this guideline has no application
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
nor could the board have taken its assistance. Mr. Kadam would
submit that there is no justification to direct deletion of some
words. That would not be a correct and proper application of the
guideline to the facts and circumstances of the present case. That
would mean that some words or abuses have been picked up and
taken in isolation. The direction to delete the above reproduced
words from the dialogues of the film wherever they occur would
mean in any sentence or dialogue of the film they be omitted. No
particular scene is referred. If these cuss words or abuses occur
in the dialogues in one scene, then, their deletion may mean the
dialogue should be omitted or altered. That would be senseless.
One cannot presume that all dialogues are sheer abuses.
Similarly, their addition does not depict the fondness of the
director and writer for such words. If the fictional character is
either a corrupt or bribe taking public official and those
corrupting him are drug-peddlers, criminals, then, their tone,
makeup and demeanor should appear to be real. The endeavour
is towards perfection.
24. With regard to cut no. 6, Mr. Kadam would submit that
there is no material for the direction to delete the words 'election',
'MP', 'party' from party worker or 'MLA', 'Punjab' and 'Parliament'.
By mere utterance of these words by fictional characters, it is not
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
clear as to how the sovereignty and integrity of India is called in
question. Mr. Kadam, therefore, submits that this is one more
instance where the board, instead of certifying the film for adult
exhibition has gone to the extent of cutting and clipping it to such
an extent that its whole content is destroyed.
25. Mr. Kadam then would submit that one visual is picked up
for cut at Sr.No. 7. This cut is without in any manner suggestive
as to how human sensibilities are offended by vulgarity, obscenity
or depravity, which is to act as the basis for applying guideline no.
2(vii). Application of this guideline to this scene serves no
purpose. Apart therefrom, this visual in song no. 3 shows the side
portion of a Sardar scratching/itching is only 10 seconds passing
visual which tries to depict an individual addict undergoing
withdrawal symptoms.
26. Mr. Kadam would submit that cut no. 8 is suggested because
the board comes to a conclusion that this is a scene tending to
encourage, justify or glamorise drug addiction. A closeup shot of
the drugs being injected and running throughout the film if
deleted in this manner, it would not carry forward the message or
theme of the film. Merely because a drug is being shown to be
injected and there is a closeup shot thereof, it may not by itself
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
viewed as tending to encourage, justify or glamorise drug
addiction. Thus, Mr. Kadam's emphasis is that without in any
manner considering the backdrop, central theme and looking at
the film as a whole, such cuts are made. That is how the
petitioners' fundamental freedom has been adversely affected.
27. With regard to cut nos. 10 and 11, Mr. Kadam would submit
that one line has been picked up and is taken to be obscene or
depraving human sensibility.
ig However, that cannot be the
conclusion reached if one views the work as a whole. The test is
that it must be viewed as a whole. If that is how the work has to
be viewed, then, cut nos. 10 and 11 do not in any manner suggest
that the visuals or words are contemptuous of racial, religious or
other groups.
28. Mr. Kadam would submit that the disclaimer, which
appears at the very beginning of the film and copy of which is to
be found at page 111 of the paper book inter alia indicates as to
how the makers of the film do not in any manner support or
encourage consumption of drugs. Therefore, it is clarified that
the makers and producers of the film have greatest respect for
the culture of the State and its people. However, if certain section
of the population of that State has been affected by the drug
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
menace, then, the disclaimer demonstrate the bonafides of the
petitioners. That may not be allowed to be interfered with nor
any additional or substituted disclaimer be directed to be
inserted.
29. Alternatively, without prejudice, Mr. Kadam would submit
that if this court is of the opinion that cut no. 9 cannot be said to
be integral to the film and by itself and the human sensibilities
are affected, then, the producers and directors are ready and
agreeable to make suitable changes therein. He also submits that
a revised disclaimer incorporating additional clarification on the
part of the makers can be inserted, however, he would submit
that if the events, songs and characters are integral to the film,
then, merely because they do not appear in a neat, clean and
refined tone that is not enough to interfere with it.
30. In support of his contentions, Mr. Kadam has placed
reliance on the following decisions of the Hon'ble Supreme Court
of India.
(i) Bobby Art International and Ors. vs. Om Pal Singh
Hoon and Ors., (1996) 4 SCC 1 .
(ii) S. Rangarajan vs. P. Jagjivan Ram and Ors., (1989) 2
SCC 574.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
31. Mr. Sethna, learned counsel appeared for the respondents,
on notice. He states that the the respondents do not desire to file
any affidavit in reply. The script of the film as handed over to the
board has been filed and we took that on record by consent of
parties. Mr. Sethna, at the out set, would submit that the Act
envisages the setting up of a board comprising experts.
Mr.Sethna relies upon the settled principle that this court cannot
interfere with the decision of a expert as if it is an appellate
authority. Merely because another view is possible or in the
opinion of this court few cuts would suffice is no ground to
interfere with the decision of the experts in the field. Mr. Sethna
would submit that the board must be allowed to operate and
function within the framework of the Act. It is not necessary that
the decision of the board should always be to the liking of the
petitioners/filmmakers and that is no ground to interfere with it
by presuming that the same is not consistent with the object and
purpose of the Act and the guidelines. If the restrictions can be
viewed as reasonable in the facts and circumstances of the
present case, then, Mr. Sethna would submit that no interference
is permissible in writ jurisdiction with the decision of the board.
So long as the decision of the board reflects application of mind to
germane and relevant facts, then, this court should not interfere
with its decision. Mr.Sethna would submit that in the present
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
case, the board has come to a conclusion that the film is not
suitable for unrestricted public exhibition but restricted to adults,
provided certain excisions and modifications in the film are
carried out and such cuts or changes or modifications are listed
with specific reference to section 5B and the guidelines, then, it is
apparent that an informed and rationale decision has been taken.
Once that decision is taken and reasons to support them are also
set out, then, this court should dismiss the writ petition. Mr.
Sethna would submit that the theme, presentation, language and
visuals of the film are not suitable for non adults. The contents of
the film are not suitable for non adults but with the deduction of
the part or portions which are directed to be deleted, the film can
be released for adult exhibition. Mr. Sethna would submit that
the petitioners seek "A" certificate. An "A" certification can be
granted with some deletions and cuts. That power of the board is
not under challenge nor its discretion. He would submit that each
cut has some reference to specific guideline in the sense that the
name of the State is not required to be projected prominently.
The reference to certain cities and towns in the particular State
frequently and throughout the film would denote as to how the
film, instead of projecting the increasing drug menace has
targeted one State and the so called problems therein. The
attempt is not to highlight the issue as a whole but to pick and
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
choose one State and depict one side of the problem. Apart
therefrom, throughout the film, filthy language is used and
abuses are hurled. The dialogues and the language is not of such
standard that a reasonable person can watch the film even with
adult family members. The test, according to Mr. Sethna, is that
whether the film is fit for viewing by family and the adult
population. He would submit that adult population comprises of
several persons between the age group of 18 to 30. They are still
susceptible. Mr. Sethna submits that there was no requirement
to insert dialogues which would demean the politicians.
Eventually, elections have a sanctity in a democratic setup. The
elected representatives cannot be insulted. Therefore, it is to
generate a feeling of insult and to lower their image in the eyes of
the society at large that the references have been made to elected
representatives and even institutions of democracy. Some of the
words are insulting and defamatory of living human beings. In
that regard, reliance is placed by him on cut no. 11. Mr.Sethna
would submit that the cut no. 10, which seeks to delete one line
from the dialogue is upholding dignity and prestige of the people
residing in the State of Punjab. The land itself is faulted for giving
birth to drug menace and if its fertility is sought to be questioned
by pointing out that nothing can grow therein except drugs, then,
that deletion within the guidelines is permissible. Nothing,
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
therefore, has been done which would violate the constitutional
guarantee and freedom. Even a proper disclaimer is suggested so
that the filmmakers realise that they cannot make any
allegations against not only the whole population of a State but
even the neighbouring countries. Once there is no proof of
involvement of a foreign country, then, in the absence thereof, a
general and sweeping allegation would jeopardize the already
delicate foreign relationship. Mr. Sethna, therefore, would submit
that no interference is required in this court's writ jurisdiction
with the order of the board and the writ petition be dismissed.
Mr. Sethna, with reference to the additional documents submitted
by Mr. Kadam and the revised disclaimer, submitted that there is
no fundamental right to vulgarity, obscenity and immorality.
Merely because 34 movies with abusive words have been allowed
to be viewed by the public in the past does not mean that the
board cannot take a decision of the present nature in another
case. Every work must be seen and considered independently.
Therefore, every order of the board must be restricted to the
theme and story of a particular film. Based on certification of
some films and without cuts, no reliefs can be claimed by the
petitioners. Similarly, he would submit that the original
disclaimer is no way diluted or toned down by the insertion as
suggested. For all these reasons, he would submit that the
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
alternative contentions of Mr. Kadam should also be rejected. Mr.
Sethna relies upon a judgment of the Hon'ble Supreme Court of
India in the case of K. A. Abbas vs. Union of India1. Mr. Sethna
invited our attention to paragraph 50 of this judgment.
32. For properly appreciating the rival contentions, we must
make a reference and very briefly to the facts. It is undisputed
that the petitioners presented an application for certification of
their film for viewing by adults. The Act enables making of such
an application. It is for the applicants to make such application in
the prescribed form requesting the board to issue a certificate for
exhibition of their film. The board, after examining or having the
film examined in the prescribed manner, sanctions it for
unrestricted public exhibition and in the present case can
sanction the same as restricted to adults. It is undisputed that
the board possesses powers as conferred by the Cinematograph
Act, 1952, to the effect that even when it sanctions the film for
public exhibition restricted to adults, it can make cuts as are
necessary in the case of a particular film. Therefore, it is common
ground that the freedom guaranteed by Article 19(1)(a) of the
Constitution of India is not absolute nor can be claimed in
absolute terms. Article 19(2) of the Constitution of India, which
1 AIR 1971 SC 481
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
finds complete reference in sub-section (1) of section 5B, guides
the authorities competent to grant a certificate to ensure that the
film or any part of it does not offend or runs contrary to 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 involves defamation or contempt of court
or is likely to incite the commission of any offence. The words
"sovereignty and integrity of India" came to be added in sub-
section (1) of section 5B by Act 49 of 1981 with effect from 1 st
June, 1983. That is because clause (2) of Article 19 of the
Constitution of India itself was amended to insert this aspect.
Thus, the sovereignty and integrity of India and the security of
State, friendly relationship with foreign State, public order,
decency or morality or defamation or contempt of court or
inciting commission of any offence are the restrictions on the
freedom of speech and expression, which are found to be
completely reasonable. If such restrictions can be placed on the
freedom and in terms of the Constitution, then, it is pointless
suggesting that creative rights can never be restricted.
33. In a decision in the case of Life Insurance Corporation of
India vs. Prof. Manubhai D. shah2 the Hon'ble Supreme Court of
2 AIR 1993 SC 171
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
India had an occasion to consider the ambit and scope of this
constitutional provision. The Hon'ble Supreme Court was dealing
with two appeals arising out of different circumstances and
concerning different parties, but relating to the scope of the
constitutional policy of freedom of speech and expression
guaranteed by Article 19(1)(a) of the Constitution of India. One
civil appeal arose out of the decision of the Gujarat High Court.
Therein, the respondent was an executive trustee of a non
governmental organisation which was undertaking research on
the working of Life Insurance Corporation of India (LIC). He
published a study paper. Certain discriminatory practices
adopted by the LIC were portrayed, which adversely affected the
interest of large number of policy holders. This study paper was
widely circulated by the respondent. A member of the LIC
prepared a counter to the respondent's study paper and published
the same as an article in a daily newspaper, challenging the
conclusions reached in the said study paper. Respondent
prepared a rejoinder, which was published in the same
newspaper. The controversy arose when the respondent insisted
on his rejoinder being published in a magazine, namely,
"Yogakshema". That was in-house publication of LIC. The LIC
resisted this attempt on the ground that this is an in-house
magazine and is not put in the market for sale to the general
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
public. The respondent's request was turned down. Thereupon,
the respondent filed a petition contending that refusal to publish
his rejoinder in the magazine violated his fundamental right
under Articles 14 and 19(1)(a) of the Constitution of India. The
writ petition was disposed of. The High Court took a view that
merely because the magazine is restricted in its circulation
among officers, employees and agents of the corporation, does not
acquire the character of an in-house magazine since the same can
be purchased by any member of the public on payment of
subscription and members of the public are invited to contribute
articles for publication in the said magazine. The corporation
cannot under the guise of publication of an in-house magazine
violate the fundamental right of the respondent. Given the
position and status of LIC within the meaning of Article 12 of the
Constitution of India, the High Court held that it must honour the
right guaranteed under Article 19(1)(a) thereof. The High Court
also concluded that the refusal of the LIC was arbitrary and
violative of Article 14 of the Constitution of India as well. The
High Court, therefore, directed LIC to publish in the immediate
next issue of "Yogakshema" the respondent's rejoinder. That
order led to the filing of this civil appeal by the LIC before the
Hon'ble Supreme Court of India.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
34. The other civil appeal pertained to a production of
documentary film on what is now known as "Bhopal Gas
Disaster". The film was awarded the Golden Lotus, being the best
non-feature film. The respondent contended that at the time of
presentation of award, the Central Minister for Information and
Broadcasting had made a declaration that the award winning
short films will be telecast on Doordarshan. The respondent
submitted for telecast his film to Doordarshan but Doordarshan
refused to telecast the same on the ground that the contents being
outdated, do not have relevance now for the telecast. This
decision was challenged in a civil writ petition and the High Court
took a view that Doordarshan must telecast the film at a time and
date convenient to it keeping in view the public interest and on
such terms and conditions as it would like to impose in
accordance with law. It is in the backdrop of such a controversy
that the Hon'ble Supreme Court referred to the constitutional
provisions. In para 6 of this decision, it held that a constitutional
provision is never static. It is ever evolving and ever changing
and, therefore, does not admit of a narrow, pedantic or syllogistic
approach. It refers to certain American decisions. Then this
trend was found to be discernible from the decisions of the Indian
courts and that is referred from the observations and conclusions
in para 7 onwards. From the resume of the case law, in para 10,
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
the Hon'ble Supreme Court concludes that it is evident that this
court has always placed a broad interpretation on the value and
content of Article 19(1)(a) of the constitution of India, making it
subject only to the restrictions permissible under Article 19(2).
The efforts by intolerant authorities to curb or suffocate this
freedom have always been firmly repelled. More so, when public
authorities have betrayed autocratic tendencies.
35. In dealing with the second civil appeal, the Hon'ble Supreme
Court refers to the Cinematograph Act, 1952. After setting out its
complete scheme, the Hon'ble Supreme Court once again refers to
section 5B and particularly sub-section (2). The guiding
principles have been noted and thereafter, the Hon'ble Supreme
Court refers to three judgments, firstly in the case of K. Abbas
(supra) and secondly it refers to a very important judgment
delivered in the case of Ramesh vs. The Union of India3, where a
petition was filed to restrain the screening of the television serial
"Tamas" on the ground that it violated Articles 21 and 25 of the
Constitution of India and section 5B of the Act. The argument
based on section 5B was noted in that decision and finally, the
Hon'ble Supreme Court of India refers to the decision relied upon
by Mr. Kadam in the case of S. Rangarajan vs. P. Jagjivan Ram
3 (1988) 1 SCC 668
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
and Ors4. In para 22, the Hon'ble Supreme Court concluded that
every right has a corresponding duty or obligation and so has the
fundamental right of speech and expression. The freedom
conferred by Article 19(1)(a) is, therefore, not absolute as
perhaps in the case of the U. S. First Amendment; it carries with it
certain responsibilities towards fellow citizens and society at
large. A citizen who exercises this right must remain conscious
that his fellow citizen too has a similar right. Therefore, the right
must be so exercised as not to come in direct conflict with the
right of another citizen. In paras 20 and 23 of the above LIC
decision, it was observed as under:-
"20. ..... In Ramesh v. The Union of India, (1998) 1 SCC
668 : (AIR 1988 SC 775) a petition was filed to restrain
the screening of the serial 'Tamas' on the ground that it
violates Arts. 21 and 25 of the constitution and S. 5B of
the Act. Based on the novel of Bhisma Sahni this serial
depicted the events that took place in Lahore
immediately before the partition of the country. Two
Judges of the Bombay High Court saw the serial and
rejected the contention that it propagates the cult of
violence. This Court after referring to the observations
of Hidayatullah, C. J. in K. A. Abbas (AIR 1971 SC 481)
proceeded to state as under (at p. 781 of AIR 1988 SC
775):
"It is no doubt true that the motion picture is a
powerful instrument with a much stronger impact
on the visual and aural sense of the spectator 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
4 (1989) 2 SCC 574
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
the country catering to the not so sophisticated,
literacy 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 senses of violence, some
nuance of expression or some events in the film can
stir up certain feelings in the spectator, an equally
deep strong, lasting and beneficial impression can be
conveyed by scenes revealing the machinations of
selfish interests, scenes depicting mutual 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 realities of internecine
conflicts, inter alia, in the name of religion. Even
contemporary news bulletins very often carry
scenes of pitched battle or violence. What is
necessary sometimes is to penetrate behind the
scenes and analyse the causes of such conflicts. The
attempt of the author in this film is to draw a lesson
from our country's past history, expose the motives
of persons who operate behind the scenes to
generate and foment conflicts and to emphasise the
desire of persons to live in amity and the need for
them to rise above religious barriers and treat one
another with kindness, sympthy and affection. It is
possible only for a motion picture to convey such a
message in depth and if it is able to do this, it will be
an achievement of great social value."
This Court upheld the finding of the Bombay High Court
that the serial viewed in its entirety is capable of
creating a lasting impression of this message of peace
and co-existence and there is no fear of the people being
obsessed, overwhelmed or carried away by scenes of
violence or fanaticism shown in the film."
23. From the above discussion it follows that
unquestionably the respondent had a right to convey his
perception of the gas disaster in Bhopal through the
documentary film prepared by him. This film not only
won the Golden Lotus award but was also granted the 'U'
certificate by the censors. Even according to the
petitioners 'the documentary is an appraisal of what
exactly transpired in Bhopal on the date the gas leak
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
occurred'. The petitioners, therefore, concede that the
film faithfully brings out the events that took place at
Bhopal on that fateful night. Therefore, the respondent
cannot be accused of having distorted the events
subsequent to the disaster. How then can it be alleged
that it is not fair and balanced or lacks in moderation
and restraint? It is nowhere stated which part of the
film lacks moderation and/or restraint nor is it shown
how the film can be described as not fair and balanced.
Merely because it is critical of the State Government,
perhaps because of its incapacity to cope with
unprecedented situation, is no reason to deny selection
and publication of the film. So also pendency of claims
for compensation does not render the matter sub judice
so as to shut out the entire film from the community. In
fact the community was keen to know what actually had
happened, what is happening, what remedial measures
the State authorities are taking and what are the likely
consequences of the gas leak. To bring out the
inadequacy of the State effort or the indifference of the
officers, etc., cannot amount to an attack on any political
party if the criticism is genuine and objective and made
in good faith. If the norm for appraisal was the same as
applied by the censors while granting the 'U' certificate,
it is difficult to understand how Doordarshan could
refuse to exhibit it. It is not that it was not sent for being
telecast soon after the disaster that one could say that it
is outdated or has lost relevance. It is even today of
relevance and the press has been writing about it
periodically. The learned Additional Solicitor General
was not able to point out how it could be said that the
film was not consistent with the accepted norms set out
earlier. Doordarshan being a State controlled agency
funded by public funds could not have denied access to
the screen to the respondent except on valid grounds.
We, therefore, see no reason to interfere with the High
Court order."
36. What the Hon'ble Supreme Court has, therefore, emphasised
throughout is that there is a need for prior restraint and our laws
have assigned a specific role to the censors as such is the need in
a rapidly changing social structure. But since permissible
restrictions, albeit reasonable, are all the same restrictions on the
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
exercise of the fundamental right under Article 19(1)(a), such
restrictions are bound to be viewed as anathema, in that, they are
in the nature of curbs or limitations on the exercise of the right
and are, therefore, bound to be viewed with suspicion. A heavy
burden is on the authorities, therefore, to show that the
restrictions are reasonable and permissible in law.
37. The other decision of the Hon'ble Supreme Court of India in
the case of K. Abbas (supra), which is equally important and for
our purpose. That is the one relied upon by Mr. Sethna. The
legality and validity of the Act itself, namely, the Cinematograph
Act, 1952 was challenged. In deciding such a challenge and at the
instance of a well known journalist, playwright and writer of
short films, producer and director of cinematograph films, who
was insisting on depicting realities of the society, the Hon'ble
Supreme Court concluded that the whole of the law and the
regulations under it will have always to be considered. The
Hon'ble Supreme Court has referred to one more decision, in
which, the Hon'ble Supreme Court considered the legality and
validity of section 292 of the Indian Penal Code, 1860 ( Ranjit D.
Udeshi vs. The State of Maharashtra5). In para 40 this has been
referred to and from para 42 onwards, the court observed thus:-
5 AIR 1965 SC 881
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
"42. It would appear from this that censorship of films,
their classification according to age groups and their
suitability for unrestricted exhibition with or without
excisions is regarded as a valid exercise of power in
the interests of public morality, decency etc. This is
not to be construed as necessarily offending the
freedom of speech and expression. This has, however,
happened in the United States and therefore decisions,
as Justice Douglas said in his Tagore Law Lectures
(1939), have the flavour of due process rather than
what was conceived as the purpose of the First
Amendment. This is because social interest of the
people override individual freedom. Whether we
regard the state as the paren patriae or as guardian
and promoter of general welfare, we have to concede,
that these restraints on liberty may be justified by
their absolute necessity and clear purpose. Social
interests take in not only the interests of the
community but also individual interests which, cannot
be ignored. A balance has therefore to be struck
between, the rival claims by reconciling them. The
larger interests of the community require the
formulation of policies and regulations to, combat
dishonesty, corruption, gambling, vice and other things
of immoral tendency and things which affect the
security of the State and the preservation of public
order and tranquility. As Ahrens said the, question
calls for a good philosophical compass and strict logical
methods.
43. With this preliminary discussion we say that
censorship in India (and pre-censorship is not
different in quality) has full justification in the field of
the exhibition of cinema films. We need not generalize
about other forms of speech and expression here for
each such fundamental right has a different content
and importance. The censorship imposed on the
making and exhibition of films is in the interests of
society. If the regulations venture into something
which goes beyond this legitimate opening to
restrictions, they can be questioned on the ground that
a legitimate power is being abused. We hold, therefore,
that censorship of films including prior restraint is
justified under our Constitution.
44. This brings us to the next questions : How far can
these restrictions go? and how are they to be imposed?
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
This leads to an examination of the provisions
contained in s. 5- B (2). That provision authorises the
Central Government to issue such directions as it may
think fit setting out the principles which shall guide
the authority competent to grant certificates under
the Act in sanctioning films for public exhibition.
.....
49. Judging the directions from this angle, we find
that there are general principles regarding the films
as a whole and specific instances of what may be
considered as offending the public interest as disclosed
in the clause that follows the enunciation of the
freedoms in Art. 19(1)(a). The general principles
which are stated in the directions seek to do no more
than restate the permissible restrictions as stated in cl.
(2) of Art. 19 and S. 5-B(1) of the Act. They cannot be
said to be vague at all. Similarly, the principles in
S.IV of the directions in relation to children and young
persons, are quite specific and also salutary and no
exception can be taken. It is only the instances which
are given in Section I Clauses A to D which need to be
considered. Read individually they give ample
direction as to what may not be included. It is argued
on the, basis of some American cases already noticed
by us that these expressions are vague. We do not
agree. The words used are within the common
understanding of the average man. For example the
word 'rape' indicate what the word is, ordinarily,
understood to mean. It is hardly to be expected or
necessary that the definition of rape in the Penal Code
must be set down to further expose the meaning.
The same may be said about almost all the terms used
in the directions and discussed before us. We do not
propose to deal with each topic for that is really a
profitless venture. Fundamental rights are to be
judged in a broadway. It is not a question of semantics
but of the substance of the matter. It is significant that
Justice Douglas who is in favour of a very liberal and
absolute application of the First Amendment in
America is of the view that 'sexual promiscuity' was
not vague, while those in favour of prior restraints
thought that it was. We have referred earlier to the
case. We are quite clear that expressions like
'seduction', 'immoral traffic in women', 'soliciting,
prostitution or procuration', 'indelicate sexual
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
situation' and 'scenes suggestive of immorality', 'traffic
and use of drugs', 'class hatred" 'blackmail
associated with immorality' are within the
understanding of the average men and more so of
persons who are likely to be the panel for purposes of
censorship. Any more definiteness is not only not
expected but is not possible. Indeed if we were
required to draw up a list we would also follow the
same general pattern.
51. 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 over-weighing 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
for ever 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 man 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
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
sex designed to play a commercial role by making its
own appeal. This draws in the censors scissors. Thus
audiences in India can be expected to view with
equanimity the story of Oedipus son of Latius who
committed patricide and incest with his mother. When
the seer Tiresias exposed him, his sister Jocasta
committed suicide by hanging herself and Oedipus put
out his own eyes. No one after viewing these episodes
would think that patricide or incest with one's own
mother is permissible or suicide in such circumstances
or tearing out one's own eyes is a natural consequence.
And yet if one goes by the letter of the directions the
film cannot be shown. Similarly, scenes depicting
leprosy as a theme in a story or in A documentary are
not necessarily outside the protection. If that were so
Verrier Elwyn's Phulmat of the Hills or the same
episode in Henryson's Testament of Cresseid (from
where Verrier Elwyn borrowed the idea) would never
see the light of the day. Again carnage and bloodshed
may have historical value and the depiction of such
scenes as the sack of Delhi by Nadirshah may be
permissible, if handled delicately and as part of an
artistic portrayal of the confrontation with Mohammad
Shah Rangila. If Nadir Shah made golgothas of skulls,
must we leave them out of the story : because people
must be made to view a historical theme without true
history? Rape in all its nakedness may be objectionable
but Voltaire's Candide would' be meaningless without
Cunegonde's episode with the soldier and the story of
Lucrece could never be depicted on the screen.
52. 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 so much as the
same scenes rendered in colour and with sound 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.
53. We have said all this to show that the items
mentioned in the directions are not by themselves
defective. We have adhered to the 43 points of T.P.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
O'Connor framed in 1918 and have made a
comprehensive list of what may not be shown.
Parliament has left this task to the Central
Government and, in our opinion, this could be done.
But Parliament has not legislated enough, nor has the
Central Government filled in the gap Neither has
separated the artistic and the sociably valuable from
that which is deliberately indecent, obscene, horrifying
or corrupting. They have not indicated the need of
society and the freedom of the, individual. They have
thought more of the depraved and less of the ordinary
moral man. In their desire to keep films from the
abnormal, they have excluded the moral. They have
attempted to bring down the public motion picture to
the level of home movies.
54. It was for this purpose that this Court was at
pains to point out in Ranjit D. Udeshi's
ig case
(1965) 1 SCR 65 = (AIR 1965 SC 881) certain
considerations for the guidance of censorship of books.
We think that those guides work as well here.
Although we are, not inclined to hold that the
directions are defective in so far as they go, we are, of
opinion that directions to emphasize the importance of
art to a value judgment by the censors need to be
included. Whether this is done by Parliament or by the
Central Government it hardly matters. The whole of
the law and the regulations under it will have always to
be considered and if the further tests laid down here
are followed, the system of censorship with the
procedural safeguards accepted by the Solicitor
General will make censorship accord with our
fundamental law."
38. Mr. Sethna would rely upon these observations to submit
that the board is duty bound and it must ensure that larger public
interest is served. While upholding the Act, the Hon'ble Supreme
Court has accorded its approval of the observations in the case of
Ranjit Udeshi (supra). The prime and important observation and
conclusion therein is that speaking in terms of the Constitution, it
can hardly be claimed that obscenity which is offensive to
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
modesty or decency is within the constitutional protection given
to free speech or expression, because the Article dealing with the
right itself excludes it. That cherished right on which our
democracy rests is meant for the expression of free opinions to
change political or social conditions, or for the advancement of
human knowledge. This freedom is subject to reasonable
restrictions which may be thought necessary in the interest of the
general public and one such is the interest of public decency and
morality. Thus, once it is held that Article 19 is applicable and a
fundamental right enumerated therein has been infringed, the
only thing which can save the law from constitutional invalidity is
if it comes within any of the exceptions enumerated in clauses (2)
to (6) of Article 19 of the Constitution of India (see Divisional
Forest Officer vs. Bishwanath Tea Co.6). The restrictive clauses in
Article 19(2) of the Constitution of India are exhaustive and are
to be strictly construed [see Sakal Papers (P) Ltd. vs. Union of
India7 ]. Importantly, the words decency or morality do not
require a narrow or pedantic meaning given to these words. They
are not confined to sexual conduct alone but encompass
requirement of correct behaviour or propriety. (See R. Y.
Prabhoo vs. P. K. Kunte8
6 AIR 1981 SC 1368
7 AIR 1962 SC 305
8 AIR 1996 SC 1113 (paras 28-30 at pg. 1126)
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
39. We must also refer to another decision on the point in the
case of Samresh Bose and Anr. vs. Amal Mitra and Anr9. Once
again, in this decision, though the Hon'ble Supreme Court was
dealing with an aspect whether the writers and publishers should
be punished for an offence punishable under section 292 of the
Indian Penal Code, in paras 21, 28 and 34, what the Hon'ble
Supreme Court has held is of paramount importance. These
paragraphs read as under:-
"21. ..... Mr. Lalit has rendered useful assistance to the
Court and he has aptly pointed out with reference to
authorities that the position in law appears to be well-
settled. He rightly contends that the real question is the
proper application of the well-settled legal principles to the
facts of any particular case. Mr. Lalit has drawn our
attention to various passages complained of as obscene and
noticed in the judgments and has fairly submitted that it it
will be for this Court to decide finally on a proper
appreciation of the novel itself as a whole and in parts
whether the novel or any part thereof is obscene within the
meaning of S. 292, I.P.C. .....
28. ..... In deciding the question of obscenity of any book,
story or article the Court whose responsibility it is to
adjudge the question may, if the Court considers is
necessary, rely to an extent on evidence and views of
leading literary personage, if available, for its own
appreciation and assessment and for satisfaction of its own
conscience. The decision of the Court must necessarily be
on an objective assessment of the book or story or article as
a whole and with particular reference to the passages
complained of in the book, story or article. The court must
take an overall view of the matter complained of as obscene
in the setting of the whole work, but the matter charged as
obscene must also be considered by itself and separately to
find out whether it is so gross and its obscenity so
pronounced that it is likely to deprave and corrupt those
whose minds re open to influence of this sort and into whose
9 AIR 1986 SC 967
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
hands the book is likely to fall. ..... It is beyond dispute that
the concept of obscenity usually differs from country to
country depending on the standards of morality of
contemporary society in different countries. In our opinion,
in judging the question of obscenity, the Judge in the first
place should try to place himself in the position of the
author and from the view point of the author the judge
should try to understand what is it that the author seeks to
convey and what the author conveys has any literary and
artistic value. The Judge should thereafter place himself in
the position of a reader of every age group in whose hands
the book is likely to fall and should try to appreciate what
kind of possible influence the book is likely to have in the
minds of the readers. A Judge should thereafter apply his
judicial mind dispassionately to decide whether the book in
question can be said to be obscene within the meaning of S.
292, I. P. C. by an objective assessment of the book as a
whole and also of the passages complained of as obscene
separately.
34. We have read with great care. It is to be remembered
that Sarodiya Desh is a very popular journal and is read by
a large number of Bengalies of both sexes and almost of all
ages all over India. This book is read by teenagers, young
boys, adolescents, grown-up youngmen and elderly people.
We are not satisfied on reading the book that it could be
considered to be obscene. Reference to kissing, description
of the body and the figures of the female characters in the
book and suggestions of acts of sex by themselves may not
have the effect of depraving, debasing and encouraging the
readers of any age to lasciviousness and the novel on these
counts, may not be considered to be obscene. It is true that
slang and various unconventional words have been used in
the book. Though there is no description of any overt act of
sex, there can be no doubt that there are suggestions of sex
acts and that a great deal of emphasis on the aspect of sex
in the lives of persons in various spheres of society and
amongst various classes of people, is to be found in the
novel. Because of the language used, the episodes in
relation to sex life narrated in the novel, appear vulgar and
may create a feeling of disgust and revulsion. The mere fact
that the various affairs and episodes with emphasis on sex
have been narrated in slang and vulgar language may shock
a reader who may feel disgusted by the book does not
resolve the question of obscenity. It has to be remembered
that the author has chosen to use such kind of words and
language in expressing the feelings, thoughts and actions of
Sukhen as men like Sukhen could indulge in to make the
whole thing realistic. It appears that the vulgar and slang
language used have greatly influenced the decision of the
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
Chief Presidency Magistrate and also of the learned Judge
of the High Court. The observations made by them and
recorded earlier go to indicate that in their thinking there
has been a kind of confusion between vulgarity and
obscenity. A vulgar writing is not necessarily obscene.
Vulgarity arouses a feeling of disgust and revulsion and also
boredom but does not have the effect of depraving, debasing
and corrupting the morals of any reader of the novel,
whereas obscenity has the tendency to deprave and corrupt
those whose minds are open to such immoral influences.
We may observe that characters like Sukhen, Shikha, the
father and the brothers of Sukhen, the business executives
and others portrayed in the book are not just figments of
the author's imagination. Such Characters are often to be
seen in real life in the society. The author who is a powerful
writer has used this skill in focusing the attention of the
readers on such characters in society and to describe the
situation more eloquently has used unconventional and
slang words so that in the light of the author's
understanding, the appropriate emphasis is there on the
problems. If we place ourselves in the position of the author
and judge the novel from his point of view, we find that the
author intends to expose various evils and ills pervading
the society and to pose with particular emphasis the
problems which ail and afflict the society in various
spheres. He has used his own technique, skill and choice of
words which may, in his opinion, serve properly the
purpose of the novel. If we place ourselves in the position of
readers, who are likely to read this book, - and we must not
forget that in this class of readers there will probably be
readers of both sexes and of all ages between teenagers and
the aged, - we feel that the readers as a class will read the
book with a sense of shock, and disgust and we do not think
that any reader on reading this book would become
depraved, debased and encouraged to lasciviousness. It is
quite possible that they come across such characters and
such situations in life and have faced them or may have to
face them in life. On a very anxious consideration and after
carefully applying our judicial mind in making an objective
assessment of the novel we do not think that it can be said
with any assurance that the novel is obscene merely
because slang and unconventional words have been used in
the book in which there have been emphasis on sex and
description of females bodies and there are the narrations
of feelings, thoughts and actions in vulgar language. Some
portions of the book may appear to be vulgar and readers of
cultured and refined taste may feel shocked and disgusted.
Equally in some portions, the words used and description
given may not appear to be in proper taste. In some places
there may have been an exhibition of bad taste leaving it to
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
the readers of experience and maturity to draw the
necessary inference but certainly not sufficient to bring
home to the adolescents any suggestion which is depraving
or lascivious. We have to bear in mind that the author has
written this novel which came to be published in the
Sarodiya Desh for all classes of readers and it cannot be
right to insist that the standard should always be for the
writer to see that the adolescent may not be brought into
contact with sex. If a reference to sex by itself in any novel
is considered to be obscene and not fit to be read by
adolescents, adolescents will not be in a position to read any
novel and "will have to read books which are purely
religious". We are, therefore, of the opinion that the Courts
below went wrong in considering this novel to be obscene.
We may observe that as on our own appreciation of the
novel, we are inclined to take a view different from the view
taken by the Courts below, we have taken the benefit of also
considering the evidence given in this case by two eminent
personalities in the literacy field for proper appreciation
and assessment by us. It has already been held by this
Court in two earlier decisions which we have already noted
that "the question whether a particular book is obscene or
not, does not altogether depend on oral evidence because it
is the duty of the Court to ascertain whether the book
offends the provisions of S. 292, I. P. C." but "it may be
necessary if it is at all required, to rely to a certain extent
on the evidence and views of leading littérateurs on that
aspect particularly when the book is in a language with
which the Court is not conversant." it is indeed a matter of
satisfaction for us that the views expressed in course of
their evidence by the two eminent persons in the literary
field are in accord with the views taken by us."
40. We invite the attention of the respondents to these salutary
principles simply because we find that in the facts and
circumstances of the present case, these have not been
considered leave alone applied.
41. It is necessary to bear in mind that depending upon the
extent of the alleged interference with the freedom of speech and
expression by such statutory authorities that a decision will have
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
to be taken by the Court whether to view a feature film itself. In a
given case particularly of a total ban or prohibition in the sense
refusing any certificate that may be necessary so as to obtain a
correct and complete picture. However, everything must depend
upon the facts and circumstances of each case and no general rule
can be laid down. Merely because in such cases one of the parties
request that the film should be viewed or a joint request is made
that the Court is not bound to accept it. In the present case, what
we have found is that the Board directed deletion of only three
visuals. The "A" certificate is issued with 13 cuts / deletions. No
deletion is directed of any scenes or full dialogue. The first
deletion is that of a signboard of 'Punjab' in the beginning. The
second deletion is that of a close-up shot of injection of a drug and
wherever it appears. This is not from any particular scene. The
third and the last deletion is that of a shot of urinating by Tommy
in front of the crowd. At the outset, we must clarify that
throughout the oral arguments, we suggested and after a point
insisted on deletion of this third visual. We are happy to note that
the petitioners also agreed to such a deletion. Therefore, this part
of the deletion or cut as directed by the impugned order need not
detain us.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
42. Now to consider as to about the legality and validity of the
direction to delete only the remaining two visuals would it be
necessary to view this feature film and we concluded that this
course is not required to be adopted given the facts and
circumstances of this case. Once it is undisputed that the film
projects and depicts the menace of drugs in the State of Punjab,
then, to delete one visual and that too of a signboard of the State
of Punjab at the beginning of the film makes no sense. The Act is
enacted to make provision for certification of cinematograph
films for exhibition and for regulating exhibitions by means of
cinematographs. The Board constituted thereunder has failed to
apply its mind to the fact that it is considering certification of a
feature film. The word feature film itself is defined in Rule 2 of
the Cinematograph Rules to mean fictionalized story film
exceeding 2000 metres in length in 35 millimeters or
corresponding length in other guages or on video. The word 'long
film' is defined with length exceeding 2000 meters in 35
millimeter or corresponding length in other guages or compact
video disc [See Rule 2(ix) and (xii)]. Now, when an application is
made for examination of films in accordance with Rule 21, then,
the Board has a power to scrutinize this application. After the
Board scrutinizes this application by appointing an Examining
Committee to examine the film and it has to take a decision on the
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
issue of certification of the film, it is apparent that it is satisfied
with the disclosures made in the application and the genuineness
and authenticity of the documents so also the correctness of the
declarations by the applicant. Thereupon, consistent with the
mandate of Article 19(1)(a) of the Constitution of India, the
Board must take a decision. In taking that decision, the Board
ought to place the nature, content and theme of the film in the
forefront. It cannot forget that a fictionalized work is presented
to it for certification and a disclaimer is appended therewith. If
the entire setting and the backdrop is the State of Punjab and the
narrative as it unfolds portrays the drug menace in that State,
then, to segregate one or two visuals of the above referred nature
or a few lines in the dialogues merely because they contain
abusive words, for excision or cut unmindful of the underlying
theme would denote as to how the Board has proceeded in this
case. We are in complete agreement with Mr. Kadam when he
submits that the Board cannot direct deletion of one visual or a
close-up shot of how the drug is injected in the body and wherever
it appears in the film because the consumption of drugs, the
trafficking therein and the abusive behaviour or vulgar
mannerisms on account of prolonged consumption or temporary
or permanent withdrawal of this habit is not supported or
justified by the maker / director. In fact, that is attacked because
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
all this is uncontrolled and unregulated. The film desires to invite
the attention of all concerned, including members of the public
that if the menace goes unchecked and is not restricted by the
intervention of the State authorities, including the Police, it will
destroy the youth of Punjab. It will completely ruin them. If that
is how the projection goes and the narrative unfolds, then, merely
because there is some close-up shot of injecting the drugs, that
can hardly be said to be objectionable. A holistic view has to be
taken. One cannot prejudge the work for a filmmaker has a
freedom of presenting his story on screen the way he chooses. It
necessarily may not be to the liking of the Board officials or those
comprising the Committee, but that by itself should not result in
directing deletions and cuts. Deletion of one visual like this or
deletion of close-up shot like this but permitting retention of other
visuals where procurement, distribution and consumption of
drugs is shown vividly and with details indicates as to how the
Board has failed to ignore the applicable tests and settled
principles. The members of the Board or Committees viewing the
films are expected to issue certificates for exhibition of films.
Their regulatory power does not enable them to direct uncalled
for cutting and deleting portions of the work merely because they
do not approve of a open and direct presentation. This is the
reason why we thought that viewing the film is unnecessary. The
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
controversy was restricted to the legality and validity of three
cuts pertaining to visuals and balance in relation to dialogues/
disclaimer. Most of the cuts and deletions are from the dialogues
and songs of the film. It is, therefore, that we took on record the
script of the film as presented by the applicant to the Board and
perused it carefully in order to satisfy ourselves about the need
for such cuts and deletions.
43. Once the test is that the work must be seen as a whole and
viewed in entirety, then, it will not be permissible to pick and
choose isolated scenes or events or characters. It will not be
permissible to pick up some lines from some scenes and few
dialogues and read them out of context. We have noted that there
is no denial of the fact that "Udta Punjab" is a film depicting the
menace of drugs. The backdrop and setting chosen is of the State
of Punjab. It is open to a creative person to choose a particular
setting and backdrop and move his story forward with due regard
to the same. It is entirely for him to choose the underlying theme
and story line. The creative freedom envisages presentation of
certain works as per the choice of the maker or writer. None can
dictate to him as to how he should produce or make his film and
what should be the contents thereof. One acting as a Board of
Film Certification is not obliged to censor films. Though the word
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
"censor" is not to be found in the Cinematograph Act, 1952, the
common parlance and dictionary meaning of that word means "an
official authorised to examine printed matters, films, news etc.
before public release and to suppress any part thereof on the
ground of obscenity, vulgarity etc". It is in that sense the word
has been understood by the Act. It refers to a official performing
a statutory duty of certifying films. The word also means
"making deletions and changes", but that is inbuilt in the power of
certification of films by the board. That is but a part and parcel of
the larger power. However, that is not the essential function.
Else, every certificate application can be simply refused or
granted conditionally by applying a formula already evolved.
Therefore, if by law the board is empowered to make changes or
deletions or cuts and these are the words employed in the
impugned order, then, that power must be exercised consistent
with the constitutional guarantee and the decisions of the Hon'ble
Supreme Court of India. The Hon'ble Supreme Court of India,
while upholding the Act, has held that it tries to achieve a balance
so that creative freedom is not unnecessarily curbed.
44. We have also seen from section 5B of the Act and the
guidelines themselves that an attempt is made not to discourage
making of films and from exhibiting them. True it is that medium
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
of film provides clean and healthy entertainment and as far as the
film should be of good standard, yet, what one finds is that in
pursuance of the objectives, the board has to ensure inter alia
that the scenes tending to encourage, justify or glamorise drug
addiction are not shown. That scenes tending to encourage,
justify or glamorise consumption of tobacco or smoking are not
shown so that human sensibilities are not affected.
45. In this regard, we must also bear in mind that we have a
democratic set up and form of Government. In a democracy, we
cannot expect the same head and brain on all shoulders. The
very heart of democracy is the freedom to think and act
differently. Implicit therein is a freedom to react and respond to
same situations differently and distinctly. The very charm of
democracy is that there are multiple views, thoughts and
expressions. One cannot expect everybody to express themselves
in the same manner. We have found that there is fresh blood
injected in the film industry. This fresh blood is definitely
enthusiastic and wants to set its foot in the industry. Such fresh
blood has been welcomed by the film industry and the viewing
public. Their works have been accepted, applauded and even
rewarded by the State. These works are based on a certain
thinking and which is of their own. They hold independent views
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
and thoughts not only on how the film industry must function, but
the medium as a whole should be handled. They feel that film is a
powerful and strong medium and its potential has remained un-
utilized or under-utilized. The film makers of today may feel that
their predecessors sold dreams and seldom dared to portray
reality. They created an audience loyal to them by churning out
love stories or such stories which had no connection with the
common man's day-today existence and life. The stories of Kings
and Queens, the stories of those wealthy and rich who never faced
the pangs of hunger nor suffered because of unemployment and
poverty, therefore, occupied most of the screen time. Thus, pure
entertaining and escapist stuff was thrown at the viewing public
without any variety and for years together. There were few
noteworthy exceptions to this unwritten rule. The audience was
cultivated and made to accept this work which in the opinion of
today's film makers hardly did credit to the worth of the medium
nor brought any laurels to the industry. Of course today's youth
admire, appreciate and respect some of the yesterday icons and
their work. They are aware that even during the times when the
films were unreal, mere fantasies, there were film makers who
presented the other side. All such film makers were respected
and are noteworthy for they opened up our mind to "Bharat" and
not concentrated only on "India". The poor, the lower middle
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
class and the middle class found place and voice in their work.
Yet, according to the present-day film makers, earlier work was
not complete and does not deserve to be carried forward in the
same way. It is such ideology which has influenced today's film
making. Therefore, a direct depiction, without fun and frolic, but
brazen and bold, of the reality in the society is their focal theme.
They do not wish to beat around the bush and hide problems like
alcoholism, crime and terrorism prevalent in today's world.
These makers are of the view that a serious, somewhat ghory and
detailed depiction of the vices in and threats to the society may
open up the eyes of, not only the public, but public officials and
the State. It is this desire as well which drives them to present
their work in the manner currently presented by some of them.
There is a contrary view in the society. Men and women in
administration or otherwise, teachers, professors, critics, writers,
thinkers and experts in the field of science, medicine, technology,
humanities etc. may feel that today's films have a temporary and
short-term impact. Burning social, psychological problems and
behavioural issues are not handled with enough sensitivity,
maturity, compassion and conviction. At times, commerce and
trade control the medium of films is the view expressed. This
contrary perception of the medium must be welcomed because
that is how a audience for films is developed and nurtured.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
Eventually, all wise men leave the fate of the film to the public.
The list of the 34 films that Mr. Kadam hands over to us with
their titles would indicate as to how even the Board and the
statutory authorities has in the past not suppressed the prevalent
manner of making and releasing films. These works depict the
world of crime and expose human weaknesses without holding
back anything from the viewing public. An audience which looks
for pure entertainment on the week-end may not frequent the
cinema halls screening such films, but that is hardly any
consideration for the Board and its officials. Those looking out for
a stuff which would help them escape the daily routine and
problems may view different films or may view the same work
differently. However, merely because there is a trend and more
and more films are being made by the younger generation of film
makers which pinpoint the weaknesses of all the wings of the
State does not mean that we interfere with their work and
intermeddle with their affairs in such a way and manner that
they would be totally disheartened and may give up film making.
That would not be conducive for the State is obliged to create an
atmosphere congenial for the development and promotion of art
and culture consistent with the Constitutional mandate as
enshrined in our Preamble. The Preamble to the Constitution
must guide all, including the Board. The Constitution aims at
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
securing to all its citizens liberty of thought, expression, belief,
faith and worship. All its provisions are intended to uphold these
fundamental values and when it secures its citizens justice,
social, economic and political, equality of status and opportunity
and to promote among them all fraternity assuring the dignity of
the individual and the unity and integrity of the Nation, then, not
only the Board officials but even the film makers ought to realise
that true democracy does not mean a licence to dictate and foist
one's views and ideas on others. Equally it gives no licence to
nudity, vulgarity, indecency and immorality. The film makers
also need to realise that a repetitive and one-sided depiction and
exposure would generate nausea and aversion. The audience
expects a package. If it does not get it in that form and measure,
it would walk out. At times it may not only like to know about the
defects and infirmities in the working of the Police or State
machinery, but would expect some solutions as well. Therefore, it
is for the film makers to decide and take a call on whether they
need to mould themselves and their ideas in the changing times.
Surely, the State and particularly the Central Board of Film
Certification cannot, in the garb of alleged public interest or
audience taste, try to mould, shape and control public opinion.
That would be disastrous and would strike at the very root of the
democracy and the fundamental freedom so dearly cherished by
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
all. A balance and blend in right measure, of entertainment and
message, may be required even according to the Board so that the
objectives of film certification are achieved. According to it the
objectives, particularly of ensuring that the medium of film
remains responsible and sensitive to the values and standards of
society, the medium of films provides clean and healthy
entertainment and as far as possible, the film is of aesthetic value
and cinematically of a good standard may enable the Board to
certify films with cuts and deletions, but it must not overlook or
brush aside equally important objectives of not unduly curbing
artistic expression and creative freedom and its certification
being responsive to social change. Thus, the objectives of film
certification cannot be applied ignoring the Constitutional
guarantee or to defeat and frustrate it completely. The Board
certifies films for exhibiting them to the members of public or
restricted sections or classes of the same and not necessarily
censors them. In Black's Law Dictionary, the word "censor" is
defined as :-
"censor. n. `1. Roman law. (ital.) A Roman officer
who acted as a census-taker, assessor, and reviewer of
public morals. 2. A person who inspects publications,
films and the like for objectionable content. 3. In the
armed forces, someone who reads letters and other
communications and deletes material considered a
security threat. - censorial, adj. - censorship."
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
46. A more or less complete definition of this very word is to be
found in Webster's Third New International Dictionary which is
thus :-
"Cen.sor\'sen(t)se(r)\n -s [censere to access, tax: akin
to Skt samsati he recites, praises] 1: one of two
magistrates of early Rome who acted as census takers,
assessors and inspectors of morals and conduct 2: a
supervisor or inspector esp. of conduct and morals: a:
an official empowered to examine written or printed
matter (as manuscripts of books or plays) in order to
forbid publication, circulation or representation if it
contains anything objectionable b: one having authority
to guide and supervise students in English colleges and
universities c: one of a council, since abolished, in some
states of the U. S. (as Vermont and Pennsy!vania)
responsible for ensuring constitutional government and
for inquiring into the conduct of state officials d: an
officer or official charged with scrutinizing
communications to intercept, suppress, or delete
material harmful to his country's or organization's
interests e: one who lacking official sanction but acting
ostensibly in society's interests scrutinizes
communications, compositions, and entertainments to
discover anything immoral, profane, seditious,
heretical, or otherwise offensive. 3 archaic : CRITIC;
esp. : a faultfinding or severe critic <moderating both
eulogists and ~s> 4 [G zensur censorship, fr. L censura
- more at CENSURE] : the agency which represses or
veils unacceptable notions before they reach the level of
consciousness."
47. In what sense the word should be understood in law, what
meaning is to be ascribed to this word must therefore be left to
the authorities in charge of implementing the statute. Our desire
is that they should not transgress the constitutional limits. In
other words, certifying films may require censoring them, but the
former is the power and the latter is a permissible act which may
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
have to be performed while exercising the same. Every such
power is coupled with a duty to uphold and not suppress the
Constitutional freedom of speech and expression.
48. We are concerned with some of the guidelines including the
one wherein sovereignty and integrity of India should not be
allowed to be called in question.
49. We are in agreement with the petitioners that the theme of
the film is about menace of drugs in general and especially
amongst the youth in Punjab. The petitioners have chosen a State
for highlighting this menace as in their view and opinion the State
of Punjab is facing that problem and tackling it now for
considerable period of time. The authorities as well as police are
struggling to control drug menace. Free availability and easy
accessibility to drugs has taken the toll particularly by targeting
younger generation of the State. Therefore, the petitioners have
depicted several characters in their work of fiction. One of them
is a music performer and styled as rock star. His fame is
unparalleled as shown in the film and when he is charged with it,
he is addicted to drugs. The consumption of drugs brings about
his downfall and deterioration. How that downfall is gradual and
he cannot live without drugs has been depicted in a vivid manner.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
At the same time, the availability and accessibility to drugs easily
is highlighted by not just pointing a finger at the failure not of the
authorities whether police or Government, but by overall corrupt
mind. Eventually, corruption is a disease and as depicted in the
film, in connivance and collusion with such officials who are
appointed to control the menace that it really spreads. They have
failed to discharge their duty in accordance with law, resulting in
the younger generation of the State being a casualty. One police
officer realises that he should work in tandem with a NGO and
strive to control this menace only after his close relative falls a
prey to this abuse. The characters, therefore, are chosen in such
a way so that all facets of the menace are brought before the
audience. It is a film for adult viewing. True it is that all adults
are not mature enough to understand the impact and realise the
potential of such a work. But, if the makers choose this way of
depicting and highlighting the issue, then, it is not for anybody to
interfere with it unless and until the creative freedom is to this
extent that it fails to meet the constitutional standards and then
it becomes necessary to control it. If the creative freedom as
guaranteed by Article 19(1)(a) to the makers and of choosing any
theme and selecting characters to indicate as to how any issue
concerning the society has assumed serious proportions, then,
within the four corners of the Act, the authorities must decide as
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
to whether the work/film is fit to be certified not for universal
public viewing but by the adults. True it is that some cuts can be
made. However, one finds that cuts and deletions as directed are
(1) one of deletion of a sign board. Pertinently, the name and title
of the film is not objected to. If the title of the film contains the
word "Punjab" and if that is how the film opens and to show the
availability of the packets or drugs easily, then, we do not see any
justification for directing the deletion of the sign board.
50.
With the assistance of the learned counsel appearing for
both sides, not only have we perused the petition and the
Annexures thereto, but we have also perused the script, which
was handed over by Mr. Sethna. We are guided by the principles
laid down by the Hon'ble Supreme Court of India and therefore,
we have read the script minutely and carefully. We have read it
word by word so as to consider whether, as claimed by the
petitioners, the same highlights the drug menace or encourages
or supports the consumption of drugs as is urged by the
respondents. We do not find anything in the script which would
suggest that the sovereignty and integrity of India is called in
question by a sign board reflecting the name of one of the States of
this country or by reference to that State or its cities. Eventually,
not only just a rock star, but how the common public and the
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
youth at large are in the grip of drugs and their menace
throughout is being highlighted. A popular rock star is chosen in
this depiction so that the appeal and message of the film reaches
and catches the youth. The chain of distribution of drugs in some
details is projected in order to show how even a girl, who has
recently attained adulthood, a one time hockey player and
migrated from the State of Bihar gets addicted to drugs. The
downfall is projected to such an extent that on account of
addiction to drug there is no control over ones senses. Once such
characters are depicted and the theme chosen being as referred
above, then, their trails, mannerisms are highlighted naturally.
Those in State police service and outside it are shown to be also
involved in distribution and sale of drugs. Sometimes, those in
service having come in close contact with criminals and addicts
particularly those belonging to the lower strata of the society or
some villagers speak a language and use a tone as shown in this
film which may best reveal their corrupt mind. The makers have
pointed out that they do not support the use of such language.
One must not forget that this is a fictional work. The story has no
connection with any real life incident or personality is clarified.
It is purely a fictional character of a rock star and equally those
involved in procuring and distributing drugs. To generate a
feeling of hatred and develop a strong dislike for villans and
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
hooligans, their supporters filmmakers put abusive and vulgar
words in their mouth. The idea is that a viewer can distinguish
and differentiate between a protagonist or hero and others or
identify the good and civil. Such disdainful characters are
created to impress upon the audience the ultimate message. In
this backdrop, the underlying theme being to project the menace
of drugs that the story is woven in such a way that till the drug
menace hits a near or dear one, even a police official does not
realise the seriousness of the same.
ig Then, there is another
character of a doctor, who is also a social worker who together
with the tainted police official tries to prevent the drug menace
spreading further. Together they try to reach to the root of the
problem and find out the sources from where drugs are procured.
Some characters are thus part of the State machinery and police.
Once again, fictional characters are created to show unrestricted
and unchecked movement of drugs and in that context, some of
them are speaking in a tone and language not associated with a
cultured and refined person. Those bound in law to stop the free
entry of prohibited drugs and substances are shown as colluding
with drug peddlers, traffickers and addicts. Thus, they are all
depicted as mean and fallen guys and responsible for the menace
of drugs in the State. To bring home this aspect effectively all
fictional characters are swearing and abusing each other. As
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
observed above, it is not to glorify them but to generate hatred
amongst viewers that this atmosphere is created. It is not to
corrupt the viewers mind but to demonstrate as to how neglect
and apathy of State machinery is also a factor and reason enough
for the menace that such scenes are inserted. However, we do not
think that stray sentences and which have been picked up from
the scene and particularly the dialogues delivered by the
characters create a negative impact by tending to encourage
justify or glamorise drug addiction. The board has failed to note
the total impact which should be seen and judged bearing in mind
the underlying theme or story of the film. It is in these
circumstances that we find that cut no. 3 from song no. 1 of the
two words cannot be justified on the touchstone of guideline no.
2(vii). The same would be the conclusion with regard to cut no. 4.
The human sensibilities are not offended by vulgarity, obscenity
or depravity. Such scenes and dialogues have to be viewed in
totality. The story must be read and considered in its entirety. It
is not safe to select a few words, sentences, dialogues and scenes
and then to arrive at the conclusion reached by the board. If the
strata of the society and habituated to indulge freely in vulgar
abuses are shown as indulging in the same without in the
slightest manner glorifying them or their language, then, we do
not see anything objectionable in the words.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
51. As far as cut no. 5 is concerned, we find that some abusive
words and expletives are allowed to be retained, but what has
been directed is, other abusive words and specifically referred
and incorporated in the description, should be deleted from
everywhere, including the background, wherever it occurs. Such
a blanket deletion without reference to the theme and the subject
of the film is bound to interfere with the creative freedom of the
petitioners. It is clear that the petitioners have, through these
dialogues and spoken by certain characters conveyed that the
bulk of the drug menace emanates from those who are in regular
contact with supplying the contraband/drugs. One finds that
ordinarily this is the language of such characters. Such dialogues
by themselves and read out of context, cannot be directed to be
deleted. It is pertinent to note that the dialogues are not directed
to be deleted. Such of the dialogues, which contain these abusive
words are permitted to be retained, but the abuses are directed to
be deleted. One does not, therefore, find any nexus with the
deletion of these words but by allowing the retention of the
dialogues. Sometimes, the spoken words together with the scene
and seen in their entirety can effectively bring home the
underlying message. We have not found any material to support
the deletion or cut no.5 in the backdrop of guideline no. 2(ix).
The guideline ensures that scenes degrading or denigrating
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
women in any manner are not presented. The guideline speaks of
scenes and that is applied to direct deletion of certain abusive
words from dialogues. One fails to understand as to how for
justifying such deletions the board can at random pick any
guideline from the set of guidelines and without appreciating or
unmindful of the objective of the same. None can say with
certainty and confidence that the scene will be effective and its
impact stronger had these words not been freely used in the
dialogues. The language, including some coined and code words
so also abuses, of drug affected, addicted and the crime world is
not that of the entire viewing public. We must credit the viewers
with minimal intelligence and adults can differentiate and
distinguish the fictional characters from those in real life. A close
resemblance with the real ones to such negative characters on
the screen is not a common or everyday affair for ordinary
normal human being. None can claim expertise merely because
he or she had an occasion to mingle with or treat drug addicts and
patients of drug abuse or overdose. To proclaim that none of
them ever reacts violently, abusively or uses cuss words under
the influence of intoxicants and drugs, is always silent even
during withdrawal symptoms and therefore, such words be
deleted reflects ignorance of creative and artistic work involving
fictional characters. In real life, some such persons may not react
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
as above but no generalisation is possible given the complexity of
the problem.
52. In the above context, Mr. Kadam has rightly relied upon a
judgment of the Hon'ble Supreme Court of India in the case of
Bobby Art International and Ors. vs. Om Pal Singh Hoon and
Ors.10. The Hon'ble Supreme Court of India, in that decision, has
held that the film must be judged in its entirety from the point of
view of its overall impact. It must also be judged in the light of the
period depicted and the contemporary standards of the people to
whom it relates, but it must not deprave the morality of the
audience. The Supreme Court further held that the guidelines are
broad standards. They cannot be read as one would read a
statute. Within the breadth of their parameters the certification
authorities have discretion. The specific sub-clauses of clause 2 of
the guidelines cannot overweigh the sweep of clauses (1) and (3)
and, indeed, of sub-clause (ix) of clause (2). Where the theme is
of social relevance, it must be allowed to prevail. Such a theme
does not offend human sensibilities nor extol the degradation or
denigration of women.
53. What we have to note is the other argument of Mr. Kadam.
That is based on the additional documents. In that, reliance is
10 (1996)4 SCC 1
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
placed on a list of films containing cuss words. This list comprises
of 34 films certified by the board. They may be for universal or
adult exhibition or universal exhibition with certain omissions.
54. However, we find merit in the arguments of Mr. Sethna that
every work should be viewed independently. We are also in
agreement with Mr. Sethna that merely because in the dialogues
of some movies such words have been allowed to be retained and
there are no cuts or deletion ordered, that course must
necessarily follow and be applied to other work or film. There
cannot be a general rule laid down and everything must depend
upon a individual work and facts and circumstances of each case.
It is, therefore, not proper to hold that merely because in some
films such words or abuses or expletives have not been deleted
and permitted to be retained, that course must be followed. Every
film will have to be seen independently and viewed as such. Its
story, its theme, backdrop and the setting in which it is made, the
message it seeks to convey and the entertainment value etc.
would all have to be judged by applying the parameters of section
5B and the guidelines. Therefore, we are not in agreement with
Mr. Kadam that because in 34 films such words have been
allowed to be retained, we must follow that course for the present
film as well.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
55. It is true as suggested by Mr. Sethna that film makers
should avoid free use of such words and expletives throughout
the film and the dialogues. However, we cannot, in the context of
a story or a serious theme such as the one before us, permit
wholesale cuts and deletions of these words. By passage of time,
film makers will realise that their works will not be seen or will
not be appreciated only because of such contents. It is better that
they realise this by experiment and experience. One should not
compel them to use a particular word or choose a better word.
Considering the vocabulary that they have chosen, it is better
that it is left to be judged by the audience. Eventually, the
audience taste would be known to them and in a better manner.
They would decide for themselves that their theme, story and
contents to be effective need not contain such expletives and
abuses. There is no need to insert or incorporate them in every
dialogue and place them in the mouth of every character. Then,
they will realise that even in lower strata or sections of the
society, it is not as if the common, normal or refined language is
not spoken at all. The Indian village and its typical setting will be
understood by them and they would learn from their experience.
The board would have been well advised to insist on such
clarification by the makers themselves. The literary and lyrical
content in the dialogue and songs was the hallmark of some great
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
Indian films. Rural India is the backdrop in which this was
achieved and may have to be emulated and followed by today's
filmmakers.
56. During the course of arguments, Mr. Kadam has tendered
before us a disclaimer. He would submit that this can be inserted
in the disclaimer as is originally inserted. This addition would
show that the characters in the film do not support or propagate
the use of drugs or narcotics or their promotion in any manner.
The film does not intend to offend, outrage or insult any city,
State, religion, person, class or community. All the characters
and incidents in this film are imaginary, resemblance to any
person dead or alive is purely coincidental.
57. Though these words are not specifically inserted, what we
find that by these additions in the disclaimer and considering the
work as a whole, these cuts and which are directed to be made
need not be upheld.
58. Similar would be the case with regard to the deletions in cut
no. 6. The cut/deletion as described, does not in any manner
suggest that guideline no. 2(xiv) and section 5B or mandate
thereof is violated. These are general expressions and words.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
They do not refer to any particular political party or outfit. They
only describe in general terms a political worker or the
representative of the public, whether at the State or
parliamentary level. They make only a general reference to the
term election. We do not find that the film viewed as a whole and
the work considered in its entirety, it is targeted at a particular
State or the reference is to the people of that State. It is common
ground that in several States elections are around the corner. In
2017, elections may be scheduled in several States. The State of
Punjab may be one of them. However, the film is not made
keeping in mind such elections nor does it propagate or contains a
propaganda as far as certain political views or is aimed at any
particular political outfit. Once there is a general comment on the
workings of the machinery, then, we do not see any justification
for the deletion and the cut.
59. Similarly, cut nos. 7 and 8 are directed bearing in mind two
guidelines, namely, 2(vi) and 2(vii). We do not think that
guideline no. 2(vi) has any application. Some closeup shots of the
drugs being injected does not mean that the scenes by themselves
or the theme as a whole tends to encourage, justify or glamorise
drug addiction. If the film is considered in the above manner,
merely one shot of the drugs being injected will not violate the
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
guidelines or the mandate of section 5B. The board could have
ensured otherwise than by directing the deletion of the shot the
compliance with guideline no. 2(vi). That has been sufficiently
taken care of by the original disclaimer and the addition thereto
submitted by Mr. Kadam.
60. Similarly, with regard to cut no. 7, we do not find that in the
song no. 3, there are visuals as claimed. It is a single passing shot
and which cannot in any manner be termed as promoting
vulgarity, obscenity or depraving human sensibility, to such an
extent as would justify its deletion. Once the impact of the song
has to be considered in its entirety and not just by the one visual,
then, we do not see any justification for deletion of a visual from
song no. 3. The same is understood by the board as depicting a
Sardar or a Sikh. That by itself does not mean that the work or
the film in any manner depicts the entire Sikh community in bad
light or ridicules it as vulgar, obscene. This is not a deletion
which could have been directed given the contents and backdrop
of the film. Eventually, the board must understand that it is a
fictional work.
61. We do not find any reason to uphold cut nos. 10 and 11
either. One line from the dialogue, which we have perused
carefully could not have been singled out and read in isolation for
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
directing such deletion. The script has been perused by us. This
line is part of dialogues involving three characters. So is the
position with regard to the other cuts as well. This line in cut no.
10 does not suggest as argued before us by Mr. Sethna that all
lands in the State of Punjab are termed as uncultivable or barren.
In fact, the dialogue is referring to the prestige of theState. The
character says that it cannot be allowed to be tarnished or
spoiled. It is one of those characters whose name is involved in
the drug scandal and he utters these derogatory words.
ig The
sentences prior to this line and the whole scene depicts as to how
the youth of Punjab are affected by the drug menace and if
alternate house is engulfed by the same, then, the fate of the
children of such a household is suggestively commented upon.
The line cannot be read as a adverse remark on the State's
agricultural land. The part played by this State in the green
revolution and its other achievements hardly stand undermined
by such a stray comment. Punjab is even today known for
hardworking farmers. The State of Punjab is also known for its
culture. Its religious backdrop and devoted population so also
contribution in the field of sports etc. is not going to be diminished
much less the State as a whole insulted by such stray line or
sentence in a dialogue. Punjab is also known for its freedom
fighters and warriors. Their sacrifice is remembered even now.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
62. Just as the board even we would have been happy if the
language in some dialogues or parts thereof had been a little
refined, Better words could have been coined by the makers.
However, given the ordinary and dictionary meaning of the words
"cuss", "expletive" "abuse" and "swear", we do not think that a
single sentence or a line as picked up can fit into this description.
The feeling that the dialogues generate would be one of aversion
and disgust. Once the film is a representation of a menace of
drugs, one will have to apply a test, as has been applied by the
Hon'ble Supreme Court in the case of Devidas Ramchandra
Tulzapurkar vs. State of Maharashtra11. That is of contemporary
community standards test (see paras 26, 59 and 60).
63. In todays world, new generation of film makers born in the
80s has entered the scene. We cannot expect that they will
present current and live issues and problems in the same manner
as the older or earlier generation. They want to chart a course of
their own, uninfluenced by earlier works. A certain degree of
freshness, a change of attitude and a different way of looking at
the same medium by itself and without anything more should not
result in bringing about disruptions or creating hurdles and
obstacles in their way. To stop them abruptly and by extreme
11 AIR 2015 SC 2612
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
responses will not only discourage them but may kill creativity. If
they are allowed to go ahead in their own way but with timely
cautioning and warning, they may respond positively and take
the same in proper spirit. However, to interfere with their work
again and again, mindlessly will only invite extreme reactions.
That would not be conducive to the growth of the medium.
Eventually, it must march with the times and compete with the
best of the works made locally and globally. That apart, the
appeal of the social media, the advent of television which operates
on a multi channel basis 24X7 resulting in large scale production
and distribution of teleserials, teledramas, telefilms presents a
enormous challenge and is virtually threatening the existence or
efficacy of a celluloid film. A full length feature film needs to hold
the audience to the seat for certain hours. Its story line, theme,
script and the overall content should have that capacity and
potency. Else, the audience interest will wane and vanish. Hence,
filmmakers, producers, directors of today have changed their
strategies.
64. Therefore, we have no doubt in our mind that they will
adapt and change themselves by maintaining a balance. For a
healthy growth of the medium and to subserve the larger public
interest, even they have a duty to perform. As the Hon'ble
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
Supreme Court has held, every right has a corresponding duty.
Article 51A of the Constitution of India which sets out the
fundamental duties of citizens will guide them and equally the
board.
65. What we have found is that the filmmakers of today are
direct, forthright, attacking, aggressive and even brutal in their
presentation. It is not only in the technical departments but in
the story telling as well they have set their own standards. There
is a marked deviation from the earlier genre and an attempt to
create a unique style on par with film making and presentation
internationally. Just because they are not soft, subtle in their
approach, one cannot be unduly strict and harsh. Holding up the
certificates or suggesting cuts and excisions in virtually every
alternate scene would be counter productive. We feel this much is
enough for those manning the board and equally the filmmakers.
66. What we have found from cut no. 9, on which some debate
was raised that the board was justified in directing the deletion of
a shot of a character urinating in front of a group. Mr. Kadam,
after taking instructions from the petitioners, makes a statement
before us, which we record as an undertaking given to this court
that the petitioners would themselves delete the shot of urination
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
in front of the crowd. The order and decision of the board to this
extent, therefore, is not challenged by the petitioners.
67. What is left for us now is to consider the disclaimer and the
cut no. 12.
68. We are really surprised that the parties should have invited
us to decide the issue of disclaimer. Eventually, it is a disclaimer.
It means rejection, renunciation and repudiation of that with
which the work or film is associated. As long as that is conveyed
and is evident, the content of this disclaimer need not detain us.
That is communicated with sufficient clarity. With some give and
take and additions or insertions or deletions, the disclaimers
could have been taken to their logical end. Once it is crystal clear
that the petitioners do not support the consumption of drugs,
they do not in any manner desire to encourage the free flow or
movement of drugs, then, the disclaimer originally proposed and
at page 111 of the paper book could have been approved with
some minor deletions.
69. After hearing both sides on this point and considering the
deletions suggested by the board so also the insertions now
proposed by the petitioners, we are of the view that in the original
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
disclaimer, the reference to a particular country should be
deleted. We direct the deletion thereof accordingly. Barring this
deletion, the original disclaimer with the insertions now
additionally proposed, the film can be permitted to be released.
The decision of the board on cut no. 12 is thus modified
accordingly.
70. Before parting, we would invite the attention of all
concerned to what has been held by the Hon'ble Supreme Court of
India in two decisions reported in the same volume in the case of
Raj Kapoor and Ors. vs. State (Delhi Administration) and Ors.12
and Raj Kapoor vs. Laxman13. The Hon'ble Supreme Court of
India has held as under:-
(AIR 1980 SC 258 )
"14. I am satisfied that the Film Censor Board, acting
under Section 5-A, is specially entrusted to screen off
the silver screen pictures which offensively invade or
deprave public morals through over-sex. There is no
doubt - and counsel on both sides agree - that a
certificate by a high-powered Board of Censors with
specialised composition and statutory mandate is not a
piece of utter inconsequence. It is relevant material,
important in its impact, though not infallible in its
verdict. .....
15. I am not persuaded that once a certificate under
the Cinematograph Act is issued the Penal Code, pro
tanto will hang limp. The court will examine the film
and judge whether its public display, in the given time
and clime, so breaches public morals or depraves basic
12 AIR 1980 SC 258
13 AIR 1980 SC 605
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
decency as to offend the penal provisions. Statutory
expressions are not petrified by time but must be up
dated by changing ethos even as popular ethics are not
absolutes but abide and evolve as community
consciousness enlivens and escalates. Surely, the
satwa of society must rise progressively if mankind is to
move towards its timeless destiny and this can be
guaranteed only if the ultimate value-vision is rooted in
the unchanging basics, Truth-Goodness-Beauty,
Satyam, Shivam, Sundaram. The relation between
Reality and Relativity must haunt the Court's
evaluation of obscenity, expressed in society's
pervasive humanity, not law's penal prescriptions.
Social scientists and spiritual scientists will broadly
agree that man lives not alone by mystic squints ascetic
chants and austere abnegation but by luscious love of
Beauty, sensuous joy of companionship and moderate
non-denial of normal demands of the flesh. Extremes
and excesses boomerang although some crazy artists
and film directors do practice Oscar Wilde's
observation: "Moderation is a fatal thing. Nothing
succeeds like excess"."
(AIR 1980 SC 605 )
" Sublime titles of cinematograph films may enchant
or entice and only after entry into the theatre the
intrinsic worth of the picture because-the-picture
dawns on the viewer. The experience may transform
because the picture is great or the audience may lose
lucre and culture in the bargain. Mere titles may not,
therefore, attest the noxious or noble content of the
film. Sometimes the same film may produce contrary
impacts and what one regards as lecherous another
man may consider elevating. .....
.....
7. Indeed, the Penal Code is general, the
Cinematograph Act is special. The scheme of the latter
is deliberately drawn up to meet the explosively
expanding cinema menace if it were not strictly policed.
No doubt, the cinema is a great instrument for public
good is geared to social ends and can be a public curse if
directed to anti-social objectives. The freedom of
expression, the right to be equally treated and the
guarantee of fair hearing before heavy investments in
films are destroyed belong to Indian citizens under the
Constitution. But all freedom is a promise, not a
menace and, therefore, is subject to socially necessary
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
restraints permitted by the Constitution. Having
regard to the instant appeal of the motion picture, its
versatility, realism, and its co-ordination of the visual
and aural senses, what with the art of the cameraman
with trick photography, vistavision and three
dimensional representation, the celluloid art has
greater capabilities of stirring up emotions and making
powerful mental impact so much so the treatment of
this form of art on a different footing with pre-
censorship may well be regarded as a valid
classification, as was held in K. A. Abbas ((1971) 2 SCR
446. Maybe, art cannot be imprisoned by the
bureaucrat and aesthetics can be robbed of the glory
and grace and free expression of the human spirit if
governmental palate is to prescribe the permit for
exhibition of artistic production in any department,
more so in cinema pictures. So it is that a special
legislation viz. the Act of 1952 sets up a Board of
Censors of high calibre and expertise, provides
hearings, appeals and ultimate judicial review, pre-
censorship and conditional exhibitions and wealth of
other policing strategies. In short, a special machinery
and processual justice and a host of wholesome
restrictions to protect State and society are woven into
the fabric of the Act.
.....
9. The position that emerges is this.
Jurisprudentially viewed, an act may be an offence,
definitionally speaking; but a forbidden act may not
spell inevitable guilt if the law itself declares that in
certain special circumstances it is not to be regarded as
an offence. The chapter on General Exceptions
operates in this province, Section 79 makes an offence a
non-offence. When? Only when the offending act is
actually justified by law or is bona fide believed by
mistake of fact to be so justified. If, as here, the Board
of Censors, acting within their jurisdiction and on an
application made and pursued in good faith, sanctions
the public exhibition, the producer and connected
agencies do enter the statutory harbour and are
protected because S. 79 exonerates them at least in
view of their bonafide belief that the certificate is
justificatory. Thus the trial court when it hears the
case may be appropriately apprised of the certificate
under the Act and, in the light of our observations, it
fills the bill under S. 79 it is right for the court to
discharge the accused as the charge is groundless. In
the present case, the prosecution is unsustainable
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
because S. 79 is exculpatory when read with S. 5A of
the Act and the certificate issued thereunder. We quash
the prosecution.
10. Two things deserve mention before we close.
Prosecutions like this may well be symptomatic of
public dissatisfaction with the Board of Censors not
screening vicious films. The ultimate censorious power
over the censors belongs to the people and by
indifference, laxity or abetment, pictures which pollute
public morals are liberally certificated, the legislation,
meant by Parliament to protect people's good morals,
may be sabotaged by statutory enemies within.
Corruption at that level must be stamped out. And the
Board, alive to its public duty, shall not play to the
gallery; nor shall it restrain aesthetic expression and
progressive art through obsolete norms and grandma
inhibitions when the word is wheeling forward to
glimpse the beauty of creation in its myriad
manifestations and liberal horizons. A happy balance is
to
"..... consider, on the one hand, the number of
readers they believe would tend to be depraved and
corrupted by the book, the strength of the tendency
to deprave and corrupt, and the nature of the
depravity on corruption; on the other hand, they
should assess the strength of the literary,
sociological and ethical merit which they consider
the book to possess. They should then weigh up all
these factors and decide whether on balance the
publication is proved to be justified as being for the
public good." [Calder and Boyars Ltd., 1969-1 QB
15 at p. 172]
11. Going to the basics, freedom of expression is
fundamental. The censor is not the moral tailor setting
his own fashions but a statutory gendarme policing
films under Art. 19(2) from the angle of public order,
decency or morality. These concepts are themselves
dynamic and cannot be whittled down to stifle
expression nor licentiously enlarged to promote a riot
of sensual display."
71. We feel that even after decades, this would serve as
reminder to the board and those implementing the provisions of
the Cinematograph Act, 1952.
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
72. A final word as to how a very small issue and event of
regular happening has consumed nearly two days of our precious
judicial time. We think that this could have been avoided by both
sides. They ought to have realised that this court's time is too
precious for such a litigation, when other deserving litigants are
awaiting justice. Some of them having been deprived of their life
and liberty. This is hardly a cause which should be brought
before the highest court of the State. We hope this is the last
occasion on which we have to deal with such a case.
73. As a result of the above discussion, the writ petition
succeeds in part. Barring the cut at Sr. No. 9 and the modification
in the disclaimer, the decision of the board as appearing at pages
65B and 65C is quashed and set aside. The film be certified
accordingly as restricted in its exhibition to the adult audience.
Respondent no. 1 shall issue the "A" certificate within a period of
48 hours from today.
74. At this stage, Mr. Sethna appearing for the respondents
prays for stay of this order. The request is vehemently opposed
by Mr. Kadam. Mr. Kadam submits that enormous investment
and efforts have gone in not only making of the film and
promoting it, but arranging for its exhibition. Now that all
J.V.Salunke,PA
Judgment-WPL.1529.2016.doc
arrangements are in place, considerable prejudice would be
caused in the event this order is stayed.
75. Having heard both sides on this point, we are of the view
that there is substance in the contention of Mr. Kadam. We are
not inclined to stay the effect of this order, as prayed by
Mr.Sethna. The request is refused.
76. The original script and the file be returned to Mr.Sethna.
77. The petitioners' advocate are at liberty to communicate this
order by private notice to the respondents.
78. All concerned to act upon an authenticated copy of this
order.
(DR. SHALINI PHANSALKAR-JOSHI, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke,PA
