Bombay High Court

Sameer Shankarrao Shukla And ... vs The State Of Maharashtra And ... on 17 November, 2017

Bench: S.S. Shinde

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     WRIT PETITION NO.13447 OF 2017


 1) Shri Sameer Shankarrao Shukla,
    Age-36 years, Occu:Priest,
    R/o-Nathgalli, Paithan,
    House No.329, Kal Bairav Mandir,
    Dist-Aurangabad,

 2) Shri Saurabh Dattatraya Pohekar,
    Age-30 years, Occ:Priest,
    R/o-Nathgalli, Paithan,
    Mallahar Niwas,
    Dist-Aurangabad,

 3) Shri Sameer S. Dharmadhikari,
    Age-42 years, Occu:Priest,
    R/o-Nathgalli, Paithan,
    Dharmadhikari Niwas,
    Dist-Aurangabad,

 4) Shri Santosh Vasantrao Chadidar,
    Age-50 years, Occu:Barber,
    R/o-Rangarhati, Paithan,
    House No.52, Near Nagar Parishad,
    Dist-Aurangabad,

 5) Shri Govardhan Asaram Chadidar,
    Age-45 years, Occ:Barber,
    R/o-Narala, Paithan,
    Shivnagar-Narala,
    Tq-Paithan, 
    Dist-Aurangabad.
                                 ...PETITIONERS 




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        VERSUS             

 1) The State of Maharashtra,
    Through its Home Department,
    Mantralaya, Mumbai,

 2) The State of Maharashtra,
    Through Ministry of Cultural
    Affairs, Mantralaya,
    Mumbai,

 3) The Divisional Commissioner,
    Aurangabad,

 4) The Collector, Aurangabad,

 5) The Superintendent of Police,
    Aurangabad,

 6) The Tahsidlar, Aurangabad,

 7) Mrs. Kalpana Vilas Kothari,
    "Kalpavila" Plot No.10,
    Sector 19, Road No.16,
    New Panvel, Raigad,

 8) Shri Sanjay Krishnaji Patil,
    Plot No.102, Behind Sai Heritage,
    PCMC Garden, Pimple Gurav,
    Pune,

 9) Shri Sandeep Bhalchandra Patil,
    Plot No.102, Behind Sai Heritage,
    PCMC Garden, Pimple Gurav, Pune.   
                                 ...RESPONDENTS

                      ...
   Mr.S.V. Adwant Advocate for  Petitioners.
   Mr.V.M. Kagne, A.G.P. for Respondent Nos.1 to 6.
                      ...




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               CORAM:   S.S. SHINDE AND
                        MANGESH S. PATIL, JJ.

               DATE :   17TH NOVEMBER, 2017 

 ORDER  :

1. This Petition under Article 226 of the

Constitution of India, is filed with following

substantive prayers:

"(b) By issuing appropriate writ and

order, the respondent No.1 to 6 be

directed to ban the release of the film

'Dashkriya', scheduled on 17.11.2017,

in the State of Maharashtra,

IN ALTERNATIVELY,

(c) By issuing appropriate writ and

order, the respondent No.1 to 6 be

ordered to direct the respondent Nos.7

to 9 to delete the slang and derogatory

dialogues, in the film 'Dashkriya'

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before the release of the film."

2. Mr. Adwant, learned counsel appearing for

the Petitioners, relying upon the pleadings and

grounds taken in the Petition, made following

submissions:

I) It is submitted that the writer Shri Baba

Bhand has written and published a novel

"Dashkriya" in the year 1994. Respondent No.7 has

produced a Marathi Film "Dashkriya", the script of

which is based on the said novel. The screen play,

dialogues and lyrics have been written by

Respondent No.8 and the film has been directed by

Respondent No.9.

II) It is submitted that while writing the

screenplay and dialogues as well as while

producing and directing the film, Respondent Nos.7

to 9, were expected to follow the rules of freedom

of speech and expression bestowed on them by the

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Constitution of India along with the duties,

responsibilities and obligations thereunder.

III) It is further submitted that the movie

"Dashkriya" is blasphemous and offensive and has

hurt the emotions and sentiments of the Bramhin

community, especially of the Kirwant community,

who perform the posthumous religious rites and

rituals after cremation and has been specifically

called, "Dharmabhrashth" in the film. It is

further submitted that the film also uses slang

language towards the barber community, which has

offended their emotions and sentiments.

IV) It is further submitted that the storyline

also hurts the religious sentiments of the Bramhin

community and the Barber community. The film

attributes the minority community as 'Dalals',

which has offended the fundamental rights of the

Petitioners and like others, as well as the Indian

traditions, customs and culture.

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V) It is further submitted that upon getting the

knowledge of the trailer of the film, the

Petitioners have personally viewed the trailer,

which has made them to immediately take up the

cause with the (i) Home Minister, State of

Maharashtra, (ii) Minister of Cultural Affairs,

State of Maharashtra, (iii) Divisional

Commissioner, Aurangabad, (iv) Collector,

Aurangabad, (v) District Superintendent of Police,

Aurangabad and other authorities by filing a

complaint on 14th November, 2017, however no

action was taken by any of the authorities.

VI) It is further submitted that the

complainants who have filed the complaint, have

taken education and acquired knowledge and skill

in their respective fields and are putting it into

practice for earning their livelihood, thus there

is no wrong in practicing the trades and customs

as a profession, however the trailer of the film,

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which has been released, has depicted the

profession of the Petitioners as immoral, which is

untrue and against the tenets of the fundamental

rights guaranteed by the Constitution.

VII) It is further submitted that the

posthumous rites and rituals performed, have been

distinctly stated in religious texts of

"Nirnaysinghu", "Dharmasindh", "Garud Puran",

"Anteshti Sanskar", "Shraddh Prayog",

"Veermitroday", and "Chudakarma Sanskar", which

are being religiously followed by the Hindu

Community since ages, therefore the statements

that the performance of such rites are "Thothand"

are disturbing and will dent the belief in Hindu

tradition.

VIII) It is submitted that according to the

science of rituals, rites such as tilanjali and

pindadan (ritual of offering of rice balls) is to

be performed beginning from 1st day till the 10th

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day. Visham Shraddha is performed on odd days. If

that is not possible then uttar-kriya begins from

at least the ninth day. Now a days, however,

pindadan that should be performed from 1st day to

10th day is performed as a combined ritual on the

10th day on the banks of river.

IX) It is further submitted that the

religious texts state that when a family member

passes away, the environment in the house becomes

Raja-Tama predominant. The linga-deha of the

deceased keeps wandering around the house or

around the family members for some time. The

speedy Raja-Tama predominant waves emitting from

the linga-deha of the deceased get attracted to

the black colour of the hair of the family

members. One function of the hair is to absorb the

Raja-Tama predominant waves from the environment.

Men who actively participate in the final rites

have higher chances of suffering distress. To

avoid this suffering, they must shave off their

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heads completely.

X) It is submitted that Paithan, which is a

religious as well as historical town and had once

seen the days of highest glory and affluence and

was ruled by the Satavahans and the birth place of

Nimbarka, the home of the great Sant Eknath, the

holy place of Sant Bhanudas, Sant Nivruttinath,

Sant Sopandev, Sant Dnyaneshwar, Sant Muktabai,

Changdeo Maharaj and others, has been referred to

in a disgraceful manner, which has disturbed the

peace and tranquility of the holy place, which is

uncondonable and unpardonable. It is further

submitted that cinema is treated as a form of art

and expression, however if it stirs up emotions

more deeply than any other product of art and is

not in the interest of the community and society

as a whole or any part thereof, such cinema is

required to be termed as going beyond the lines of

freedom of speech and expression and violative of

the reputation and the fundamental rights

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guaranteed to others by the Constitution.

XI) It is further submitted that the film

makers are under obligation to restrict the

exercise of their right within the four corners of

law and the Constitutional mandate as well as

within the limitations of the act specifically

enacted for the exhibition and regulation of

exhibition of the film. It is submitted that the

release of the film "Dashkriya", scheduled on 17th

November, 2017, will spread false and blind

beliefs with respect to the work of the Bramhins

who perform the posthumous rites and rituals and

the barbers amongst the members of the public.

XII) It is further submitted that the

authorities under the Cinematograph Act, 1952,

have failed in their duty and responsibility to

restrict Respondent Nos.7 to 9 from encroaching

upon the right of the Petitioners community to

freedom of religion, its practice and propagation,

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3. Learned counsel appearing for the

Petitioners has further submitted that the theme

of the film is patently provocative and the

dialogues are blasphemous. The trailer of the film

appears, on the face of the things, to be mala

fide and objected towards instigating disbelief

against the religious beliefs of the Hindus. It is

impregnated with an intention to undermine the

particular castes- Bramhin and Barber. (d) The

film is aimed at developing a cleavage in the

society on the grounds of caste. It is an attempt

to keep the ash burning whens the fire of caste

system is retreating fast and reaching a point of

extinction. It is further submitted that

Respondent Nos.7 to 9 seem to entertain manifest

aversion, repulsion and hatred for the Bramhin and

Barber caste and community. The language used in

the dialogues is germane to violence and enmity

amongst the different sections of the society. The

screenplay appears to be designed and tailored to

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achieve the premeditated objective of infringing

the peace in the society. The film appears to be

politically motivated. Even the children, who have

acted in the film, have been used as the spoke-

persons of Respondent Nos.7 to 9.

4. Learned counsel further submitted that

the film is intended to project that the Bramhin

and Barber community is exploiting the people as

the means of their livelihood. It alleges and

depicts that the Bramhins and Barbers are staking

claims to a share in the yields of the other

sections of the society whose occupation is

connected to the one carried on by the Bramhins

and Barbers. The professions of the Bramhins and

Barbers are not declared illegal and

unconstitutional, therefore Respondent Nos.7 to 9

have no right to impress upon the public and make

believe that the occupation practiced by them are

immoral. The rites and rituals are performed by

the people voluntarily and there is no compulsion

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exerted by the persons under whose domain those

are performed, therefore t6he dialogues in the

film are agitating and violate the fundamental

rights of the petitioner's community. It is wildly

alleged that this system of rites and rituals is

evolved by the Bramhin community as a means of

their sustenance, which is absolutely false and

contrary to the Hindu texts, which substantiate

them. It is an error to cast the Bramhins and

Barbers as the progeny of "Shylock" the well known

character in the Shakesperean play, "Merchant of

Venice".

5. Learned counsel further submitted that

the entire screenplay hinges around sapping the

Bramhin and Barber community by hook or crook,

being the soft target in the nature of a minority

community. The film makers have no right to

introduce something into the film which is not

present in the novel, thus the film is a distorted

version of the novel, on which it allegedly rests,

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however the authorities under the Act of 1952,

have failed in their duties while granting the

certification to the film, which is not in tune

with the Rules of 1983. The very novel on which

the film is based is not a historical document but

a piece of imaginative story for which it cannot

be rendered a status of gospel.

6. During the course of arguments, the

learned counsel has also made following

submissions:

(1) The Petition is based on the official trailer

of the film 'Dashkriya', released by the film

makers. The trailer intends to draw more and more

audience to watch the file, however in the instant

case, the extracts of the film exhibited in the

trailer spark a controversy, which is unacceptable

to the constitutional mandate.

(2) The Oxford Dictionary 7th edition, defines

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'Trailer' to be a 'Set of short extracts from

cinema or television film, exhibited to advertise

it in advance.

(3) The trailer intends to draw more and more

audience to watch the film, however in the instant

case, the extracts of the film exhibited in the

trailer spark a controversy, which is unacceptable

to the constitutional mandate.

(4) 'Dashkriya' are posthumous rites and rituals

of a person, performed by all the sections of our

society, all over as per the religious rituals,

practices, ceremonies, observances prescribed by

their respective community.

(5) There is no compulsion exerted by anyone to do

so and are performed voluntarily by the society.

It is a part of our religion and its origin is in

the faith that the departed soul rests in the

blissful silence and is not reborn in this world

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of sorrow and mortality.

(6) Such rites and rituals are performed under the

aegis or guidance of a particular community called

"Kirwant".

(7) Performance of these activities, is neither

illegal, nor unconstitutional, however, the movie

picturises the theme borrowed from the novel with

the same title, in such a way that it violently

offends the occupation of a particular community

in a slang and abusive language, which has the

potential to endanger peace, harmony, brotherhood,

symbiosis and co-existence prevalent in the

society.

(8) The trailer threatens the fabric of social

cohesion and our peaceful existence under the

guise of freedom of expression, guaranteed by the

Constitution.

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(9) Further, the dialogues, their utterances,

gestures are with the deliberate intention to

outrage the religious feelings by insulting the

religions beliefs and violate the freedom of

religion, its practices and propagation,

guaranteed by the Constitution of India.

(10) Further, insult to religion, outraging

religious feelings, religious beliefs, uttering

words with the deliberate intent to wound the

religious practices are an offence punishable

under the Indian Penal Code.

(11) The Petitioners apprehend that such a film,

if allowed to be released, would cause

irreversible and irreparable loss to the social

and national interest, therefore there is a great

urgency and necessity to say the release of the

film to avert the impending injury.

7. Learned counsel appearing for the

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Petitioner has tendered across the Bar the typed

copy of the alleged dialogues in the film

"Dashkriya", which are as under:

"fouk vk'E;kpk fo/kh dj.ka Eg.kts Mk;oj fouk xkMh

dqBwu vk.kyal iSda] xsyk vl'khy cksacyr pkG.k ?ksmu R;k ukFk

?kkVkoj

ds'ko xq:th] rqeP;k f'kok; n'kfdz;k fo/kh ikj iMqu 'kdsy dk; bFks iSB.kkr

lkodkj tjk ukFk ?kkVkoj jsV leku Bsok;pa c?kk dh] dks.kh dlgh

rksaMkyk ;sbZy rs jsV ekxrkr

gs lxGs fo/kh dj.ka Eg.kts FkksrkaM vkgs- g;k czk ºk.kkauhu vkiY;k

iksVk ik.;kph O;oLFkk dj.;kph lks; dsyh vkgs gh-

rw tUetkr /keZHkz"V vkgsl & fdjoar vkgsl rq-

;k iSB.k {ks=ke/;s nql&;k dks.kkpkgh gLr{ksi vkEgh [kiowu ?ks.kkj ukgh-

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eks{k fodk;pa dk; nqdku dk<yl dk; nykyk-

iSB.kph vkczq v'kh Hkj jLR;koj ekaMq udk-"

. Learned counsel submits that the said

dialogues/utterances violates the fundamental

rights of the Petitioners and other citizens who

belong to Hindu religion.

8. Learned counsel further submits that the

Central Board of Film Certification should not

have granted the certificate to release the film

"Dashkriya" in view of the objectionable

aforementioned dialogues which are in violation of

fundamental rights as guaranteed under Article 25

and 26 of the Constitution of India. In support of

aforesaid submissions, learned counsel appearing

for the Petitioners invites our attention to

exposition of law by the Supreme Court in the case

of Commissioner of Police and others vs. Acharya

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Jagadishwarananda Avadhuta and another1. Relying

upon the observations in the said Judgment and in

particular Paras-9, 86 and 87 thereof, learned

counsel submits that, it is settled law that

protection under Articles 25 and 26 of the

Constitution extends guarantee for rituals and

observances, ceremonies and modes of worship which

form part and parcel of religion. Practice becomes

part of religion only if such practice is found to

be an essential and integral part. He further

submits that, performance of "sharadha" and

offering of "pinda" to ancestors are held to be an

integral part of Hindu religion and religions

practice. In support of his submissions, learned

counsel also placed reliance upon the observations

in the case of Raghunatha Rao Chakkilam vs. The

Central Board of Film Certification and others2,

Star India Pvt. Ltd. vs. State of Punjab and

another3, Sheshammal and others, etc. etc. vs.

1 (2004) 12 S.C.C. 770 2 Manu/AP/0634/2013 3 MANU/PH/0909/2010

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State of Tamil Nadu4 and in the case of Sri

Venkataramana Devaru and others vs. State of

Mysore and others.

9. On the basis of above submissions, the

Petitioners have prayed for the relief as stated

herein above.

10. We have heard learned counsel appearing

for the Petitioners at length. With his able

assistance, we have carefully perused the

background facts for filing the Petition, the

grounds taken therein, the annexures thereto and

also the submissions made across the Bar.

Admittedly, in the present case, the Central Board

of Film Certification has given permission to

release the film "Dashkriya". The provisions of

Section Section 5-B of the Cinematograph Act,

1952, reads as under:

4 (1972) 2 S.C.C. 11

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"5-B. Principles for guidance in certifying films.- (1) A film shall not be certified or public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of [the Sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of Court or is likely to incite the commission of any offence.

(2) Subject to the provisions contained in

sub-section (1), the Central Government

may issue such directions as it may think

fit setting out the principles which shall

guide the authority competent to grant

certificates under this Act in sanctioning

films for public exhibition."

11. As observed herein above, already the

Central Board of Film Certification has granted

permission to release the film. Whether to grant

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such certificate to release the particular film is

an issue squarely within the adjudication domain

of the Central Board of Film Certification and

Film Certification Appellate Tribunal.

12. The contention of the counsel appearing

for the Petitioners that because of release of

such film and the afore mentioned objectionable

utterances/dialogues, there is violation of

fundamental rights as guaranteed under Article 25

and 26 of the Constitution of India, in our

considered view, cannot be accepted, since there

is no order gaging or prohibiting the persons from

following the customs and rituals of Hindu

religion and from exercising their fundamental

rights as enshrined under Article 25 and 26 of the

constitution of India. The Supreme Court in the

recent order, which is passed on 16th November

2017 in Writ Petition (Civil) No.1119 of 2017

(Nachiketa Walhekar vs. Central Board of Film

Certification and another), made the following

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observations:

"The thrust of the matter is whether

this Court should entertain the writ

petition and pass an order of

injunction directing the CBFC to delete

the clip and further not to get the

movie released in theaters on 17th

November, 2017. It is worthy to mention

that freedom of speech and expression

is sacrosanct and the said right should

not be ordinarily interfered with. That

apart, when the respondent No.1, CBFC,

has granted the certificate and only

something with regard to the

petitioner, which was shown in the

media, is being reflected in the film,

this Court should restrain itself in

not entertaining the writ petition or

granting injunction.

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Be it noted, a film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind. The human history records that there are many authors who express their thoughts according to the choice of their words, phrases, expressions and also create characters who may look absolutely different than an ordinary man would conceive of. A thought provoking film should never mean that it has to be didactic or in any way puritanical. It can be expressive and provoking the conscious or the sub-conscious thoughts of the viewer. If there has to be any limitation, that has to be as per the prescription in law.

The Courts are to be extremely slow to

pass any kind of restraint order in

such a situation and should allow the

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respect that a creative man enjoys in

writing a drama, a play, a playlet, a

book on philosophy, or any kind of

thought that is expressed on the

celluloid or theater, etc."

13. Time and again the Supreme Court has

reminded that the Courts should be slow in

interfering in such matters wherein the Central

Board of Film Certification has granted permission

to release the film. In the case of Nachiketa

Walhekar, supra, the Supreme Court has observed

that, an artist has his own freedom to express

himself in a manner which is not prohibited in law

and such prohibitions are not read by implication

to crucify the rights of expressive mind.

14. It is not necessary for us to elaborate

the reasons further. Admittedly, the film is based