Delhi High Court
M/S Super Cassettes Industries ... vs Board Of Film Certification & Ors. on 24 November, 2010
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 4th October 2010
Delivered on: 24th November 2010
W.P.(C) No. 2543 of 2007
M/S SUPER CASSETTES INDUSTRIES
LTD. & ANR. ... Petitioners
Through: Mr. Amit Sibal with
Mr. Rahul Ajatshatru and
Mr. S. Shanker, Advocates.
versus
BOARD OF FILM CERTIFICATION & ORS. ... Respondents
Through: Ms. Zubeda Begum with
Ms. Sana Ansari, Advocate for R-3.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 10552 of 2009
M/S R.K. MOVIES
THROUGH: ITS PROP. RAJINDER KUMAR ... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. A.S. Chandhiok, Additional
Solicitor General of India with
Mr. Pankaj Batra, Advocate for R-1 & R-2.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 6481 of 2007
DHARMENDAR KAPOOR .... Petitioner
Through: Mr. D.N. Grover, Advocate.
versus
CENTRAL BOARD OF FILM CERTIFICATION ... Respondents
Through: Mr.A.S. Chandhiok, Additional Solicitor
General with Mr. Atul Nanda and
Ms. Sugandha, Advocates for UOI.
Mr. Vikas Pahwa, Standing counsel for CBI.
W.P.(C) No. 2543 of 2007 & batch Page 1 of 56
WITH
W.P.(C) No. 6976 of 2007
RAMA CASSETTES INDUSTRIES ... Petitioner
Through: Mr. Rajeev Sharma, Advocate.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Vikas Pahwa, Standing Counsel
for CBI.
WITH
W.P.(C) No. 250 of 2008
MAX CASSETTES INDUSTRIES & ANR. .... Petitioners
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Sushil D. Salwan, Additional
Standing counsel with Mr. Aditya Garg, Advocate
for GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 362 of 2008
VAISHNAO ELECTRONICS .... Petitioner
Through: Mr. Rajeev Sharma, Advocate.
versus
CENSOR BOARD OF FILM CERTIFICATION
& ORS ... Respondents
Through: Ms. Ruchi Sindhwani and
Ms. Megha Bharara, Advocates for R-3.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 5557 of 2008
SHUBHAM AUDIO VIDEO P. LTD. .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
W.P.(C) No. 2543 of 2007 & batch Page 2 of 56
Through: Mr. Vikas Pahwa, Standing counsel
for CBI.
WITH
W.P.(C) No. 5772 of 2008
J.K.ELECTRONIC
THROUGH: ITS PARTNER ANIL KUMAR ... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Vikas Pahwa, Standing counsel
for CBI.
WITH
W.P.(C) No. 5774 of 2008
RHYTHM MUSIC TECHNOLOGIES P. LTD.
THROUGH: ITS DIRECTOR NARESH MALHOTRA ... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate for
CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 5776 of 2008
BHAGWATI VIDEO THROUGH: ITS PROP.
HARENDER SINGH GUSHAIN & ORS. .... Petitioners
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 5822 of 2008
CHANDA CASSETTES PVT. LTD. .... Petitioner
W.P.(C) No. 2543 of 2007 & batch Page 3 of 56
Through: Mr. Dhanesh Relan, Advocate.
versus
BOARD OF FILM CERTIFICATION & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 6396 of 2008
SIMRAN MUSIC INDUSTRIES .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocate.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Sushil D. Salwan, Additional
Standing counsel with Mr. Aditya Garg, Advocate
for GNCTD.
Mr. Anjum Javed, Advocate for CBFC.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 6558 of 2008
SONOTEK CASSETTES COMPANY & ANR. .... Petitioners
Through: Mr. Dhanesh Relan, Advocate.
versus
BOARD OF FILM CERTIFICATION & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. S.P. Sharma, Advocate for R-3.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 6602 of 2008
K.S. MEDIA P. LTD.
THROUGH: ITS AUTHORISED REPRESENTATIVE OR
DIRECTOR KALA IYER .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi with Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
W.P.(C) No. 2543 of 2007 & batch Page 4 of 56
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 6603 of 2008
EAGLE HOME AND ENTERTAINMENT P. LTD.
THROUGH: ITS AUTHORISED REPRESENTATIVE
OR MANAGER ASHOK VERMA .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Ms. Ruchi Sindhwani and
Ms. Megha Bharara, Advocates for R-2 & R-5.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 6604 of 2008
MAD 4 MUSIC AMAR AUDIO
THROUGH: ITS A/R JAGMOHAN SINGH .... Petitioners
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Ms. Ruchi Sindhwani and
Ms. Megha Bharara, Advocates for R-2 & R-5.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 6703 of 2008
GAURI MUSIC AND RECORDING CENTRE
THROUGH: ITS PROP. RAMESH LAL .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
W.P.(C) No. 2543 of 2007 & batch Page 5 of 56
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 6704 of 2008
S.M. ELECTRONICS @ SHANKAR SERIES
RAJASTHANI CASSETTES
THROUGH: SHANKAR LAL KUMAWAT .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate for CBFC
and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 6914 of 2008
ANGLE MUSIC VIDEO PVT. LTD. .... Petitioner
Through: Mr. Dhanesh Relan, Advocate.
versus
BOARD OF FILM CERTIFICATION & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 7018 of 2008
YUKI CASSETTES .... Petitioner
Through: Mr. Dhanesh Relan, Advocate.
versus
BOARD OF FILM CERTIFICATION & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 7431 of 2008
MAGIC ART PRESS .... Petitioner
Through: Mr. Dhanesh Relan, Advocate.
versus
W.P.(C) No. 2543 of 2007 & batch Page 6 of 56
BOARD OF FILM CERTIFICATION & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 7482 of 2008
CLASSIQUE DISCS .... Petitioner
Through: Mr. Dhanesh Relan, Advocate.
versus
BOARD OF FILM CERTIFICATION & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 7499 of 2008
SHASHI AUDIO AND VIDEO PVT. LTD. .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 7500 of 2008
MATA CASSETTES .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 7501 of 2008
MATA CASSETTES (PARTNERSHIP FIRM) ... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
W.P.(C) No. 2543 of 2007 & batch Page 7 of 56
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 7928 of 2008
SAAWARIYA MUSIC AND FILMS .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi with Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 7929 of 2008
M/S. S.R. PRASTUTI .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 7930 of 2008
ASHOK MUSIC INDUSTRIES .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
W.P.(C) No. 2543 of 2007 & batch Page 8 of 56
WITH
W.P.(C) No. 7973 of 2008
VASU MUSIC AND ENTERTAINMENT INC.
THROUGH: ITS PARTNER SUNIL KUMAR ... Petitioner
Through: Mr. S.K. Chaturvedi, Advocate.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Vikas Pahwa, Standing counsel
for CBI.
Mr. Anjum Javed, Advocate for
CBFC and GNCTD.
WITH
W.P.(C) No. 8382 of 2008
HIMALAYAN FILMS P. LTD.
THROUGH: ITS AUTHORISED REPRESENTATIVE OR
DIRECTOR M.C. LAKHERA .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 8842 of 2008
UMA CASSETTES
THROUGH: ITS PROP. NARAIN MEHTA .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 9 of 2009
M/S. GANGOTRI FILMS
THROUGH: ITS PROP. SMT. KRISHNA GAUR .... Petitioner
W.P.(C) No. 2543 of 2007 & batch Page 9 of 56
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 7429 of 2009
M/S. SHUGUN LOVING AND BASOYA MUSIC CO.
THROUGH: PROP. BIJDENDRA SINGH BASOYA ...Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate
for CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 547 of 2010
M/S. ROCKWELL MUSIC
THROUGH: ITS AUTHORISED REPRESENTATIVE
RAJEEV KUMAR SAXENA .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Anjum Javed, Advocate for
CBFC and GNCTD.
Mr. Vikas Pahwa, Standing counsel for CBI.
WITH
W.P.(C) No. 1860 of 2010
GHANSHYAM BHATT .... Petitioner
Through: Mr. Rakesh C. Agrawal, Mr. Ashok
Sethi and Mr. Puneet Agarwal, Advocates.
versus
UNION OF INDIA & ORS. ... Respondents
W.P.(C) No. 2543 of 2007 & batch Page 10 of 56
Through: Mr. A.S. Chandhiok, Additional
Solicitor General with Mr. B.V. Niren, Advocate
for UOI.
AND
W.P.(C) No. 3806 of 2010
GANGA CASSETTES .... Petitioner
Through: Mr. Kewal Singh Ahuja, Advocate.
versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Ravinder Agarwal, CGSC with
Mr. Nitish Gupta, Advocate for R-1 & R-6.
Ms. Zubeda Begum and
Ms. Sana Ansari, Advocates for R-3.
CORAM: JUSTICE S. MURALIDHAR
1. Whether reporters of the local news papers be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT
24.11.2010
The common question
1. The Petitioners in thirty-five of these thirty-six writ petitions are
producers, manufacturers, and sellers, and also replicators for music
companies holding copyright in audio-visual materials including devotional
and religious songs in many regional languages, recorded on video compact
discs („VCDs‟) and digital video discs („DVDs‟), which the Petitioners have
labeled as „only for private viewing‟. The common question that arises in
these petitions is whether these audio-visual recordings on DVDs and VCDs
which the Petitioners sell in the market, but with the label that it is meant
only for private viewing, requires certification by the Central Board of Film
Certification („CBFC‟) under Section 5-A of the Cinematograph Act, 1952
(„CG Act' )? The only exception is Writ Petition (C) No. 6481 of 2007 by
Dharmendar Kapoor which prays for directions to the Respondents to
strictly enforce the CG Act and the CR Act against those making and selling
such audio-visual material in DVDs and VCDs.
2. The above question which is common to all these petitions arises in the
context of raids conducted by the police on the shops from where DVDs and
VCDs similar to the ones being manufactured and sold by the Petitioners
were seized and prosecution launched against several persons for violation
of Section 52A(2)(a) of the Copyright Act, 1957 („CR Act‟). The contention
of the Petitioners is that since they are themselves the manufacturers and
sellers and, therefore, the holders of the copyright in respect of the material
in these DVDs and VCDs, they were not required to obtain certification
under Section 5-A of the CG Act, and consequently they cannot be
prosecuted under Section 52A(2)(a) of the CR Act.
3. The prayers in these writ petitions, except W.P. (C) No. 6481 of 2007, are
more or less of a declaratory nature. The Petitioners seek a declaration that
their films sought to be sold in the form of DVDs and VCDs and which are
meant for private viewing do not require certification by the CBFC under
Section 5-A CG Act. Such a declaration is sought with a view to avoiding
prosecution under the CR Act. The facts in each of the other petitions differ
slightly as regards the precise DVDs and VCDs being sold by each of the
Petitioners. Illustratively, the facts in Writ Petition (C) No. 2543 of 2007 are
set out.
Facts in W.P. (C) No. 2543 of 2007
4. Petitioner No.1 is Super Cassettes Industries Ltd. („SCIL‟) having its
registered office at New Delhi. Petitioner No. 2 is its share holder. The
CBFC is Respondent No.1 in the present petition. Respondent No. 2 is the
Union of India („UOI‟) through the Ministry of Information & Broadcasting,
Government of India („I&B Ministry‟). Respondent No. 3 is the
Commissioner of Police, New Delhi.
5. SCIL was initially registered as a private limited company in the year
1983 having late Mr. Gulshan Kumar and his father, Mr. Chanderbhan Dua
as its Directors. In 1988 it became a deemed public limited company. It is
stated that SCIL, since its inception, has been engaged in the business of
manufacturing and marking audio and video cassettes (blank and recorded),
compact discs („CDs‟), televisions, tape recorders, CD players and other
electrical goods. It is stated that SCIL has also built state-of-the-art facilities
in its recording studios. SCIL is the proprietor of T-SERIES brand of music
cassettes, CDs, VCDs and DVDs. SCIL claims to own copyright in a vast
repertoire of cinematograph films and sound recordings, including over
20,000 Hindi non-film songs and around 50,000 songs in regional
languages, adding up to tens of thousands of hours of music. SCIL claims to
own exclusive copyright in video films of different varieties including
audio-visual songs of hundreds of feature films, music videos of private
artists, performance of devotional songs and discourses along with visual
picturisation, performance of Indian classical music with visual
picturisation, other video films such as animated films and compilations of
excerpts from feature films.
6. The case of the Petitioner SCIL, which is also that of the other Petitioners,
is that the films manufactured or produced by them, containing devotional
and religious songs, are not being sold for „public exhibition‟ within the
meaning of the CG Act. The Petitioners‟ case is that since they are being
sold for private home viewing, they do not require certification by the
CBFC. It is stated that with each DVD and VCD sold by the Petitioners a
set of warnings are printed on the cover/jacket containing the VCD or DVD.
A sampling of the said warnings is:
"WARNING: This video is for your personal and private
use only. Any commercial use including renting in public
will need licence from Super Cassettes Industries
Limited, under the Copyright Act, 1957."
"WARNING: Any unauthorised copying of the film,
causing the film to be seen and heard in the public,
making any record of the sound track in the film,
communicating the film by broadcasting, usage,
publishing, adapting, synchronization or by means of
wireless diffusion or wire selling or letting for hire,
distributing, exhibiting, importing or exporting any
unauthorized copy shall constitute infringement of the
producer‟s copyright in this cinematograph film and any
such act or attempt shall be an offence punishable with
fine and imprisonment under Chapter XII of the
Copyright Act, 1957."
"Warning: All rights reserved. For non-commercial
private home viewing only and on a single viewing
device at any time. The contents are not to be transmitted
on any cable or like television, transmission system or
distribution to more than one television device or
dwelling. Unauthorised copying, duplication,
reproduction, hiring, renting lending broadcasting and
public performance or exhibition or screening (including
clubs, bars, hospitals, nursing homes, retail
establishments, oil rigs, prisons, schools and/or in public
transport, airports, railways and bus station) is strictly
prohibited. Any unauthorised use, copying or violation
of the above terms shall constitute an offence under the
Copyright Act, 1957 (as amended) and shall be liable for
prosecution."
7. It is stated that on or around 7th December 2006, teams of police officers
conducted raids at the business premises of several individuals and firms
dealing in the sale of video films including audio-visual materials produced
by SCIL. A considerable stock of VCDs and DVDs was seized on the
ground that the persons stocking them failed to produce the necessary
documents including the certification of the CBFC under Section 5-A of the
CG Act. FIR No. RC SIB 2006 E 0010 dated 8th December 2006 was
registered under Section 120B IPC read with Section 52A CR Act and
Sections 63, 65 and 69 CR Act. Several retailers were named as the accused
persons. SCIL claims that the present petition has been filed under the
apprehension that there may be more such raids in which the DVDs and
VCDs produced by SCIL and sold in the retail market for private viewing
may be seized for want of certificates issued by the CBFC under Section 5-A
CG Act. It is stated that an FIR on similar grounds was lodged on 14 th July
2006 in the Dabri Police Station, South-West District, Delhi upon the
complaint of one Mr. Avadh Sharma, a member of the Delhi Advisory Panel
of the CBFC.
8. SCIL states that thereafter large stocks of VCDs and DVDs were returned
to it by its retailers and stockists since a panic was created as a result of the
raids. SCIL claims to have suffered return of stock of value of Rs. 161
crores between 1st November 2006 to 14th February 2007 apart from loss of
reputation and goodwill. In the circumstances, W.P. (C) No. 2543 of 2007
was filed on 3rd April 2007. While directing notice to issue in the writ
petition, the following order was passed by this Court:
"Issue notice to the Respondent No.1, returnable on 19th
July 2007.
The issue involved in this petition is whether the
manufacture and sale of DVDs and VCDs pertaining to
certain audio-visual materials including devotional songs
etc. which do not fall within the standard „understanding
of feature films or documentaries‟ would still require
certification from the Board of Film Certification under
the Cinematograph Act, 1952. The Petitioner is a
manufacturer of various DVDs and VCDs which include
feature films and films designed for public viewing as
well as films which, according to the Petitioner, are not
designed for public viewing. Insofar as those audio
visual materials, which are designed for public viewing
are concerned, the counsel for the Petitioner clearly states
that a Film Certification would be necessary and it has
been applying for the same and obtaining the same from
time to time. Insofar as the audio-visual material which
is not designed for public viewing is concerned, the
Petitioner is of the view that the same does not require
certification for the purposes of manufacture and sale. In
case, any person, after having purchased or rented the
said material, uses it for public exhibition then it would
be his liability and not the liability of the manufacturer.
There is a difference of understanding between the
Petitioner and the Respondents on this aspect. According
to the learned counsel for the Respondents, all audio-
visual materials, which are capable of public viewing,
require certification. Since, this matter requires
consideration, the Respondents are directed to file their
counter affidavits within four weeks and the Petitioner
shall file the rejoinder affidavit within four weeks
thereafter. In the meanwhile, the Respondents may
continue with their investigation but shall not take any
coercive step with regard to the audio-visual materials
which are meant for private viewing.
Dasti."
9. The above interim order has continued since then.
10. The facts in each of the other petitions and the reliefs sought are more or
less similar. As already noticed only in W.P. (C) No. 6481 of 2007, by Mr.
Dharmendar Kapoor, the relief sought is for a direction to the Respondents
to strictly enforce the provisions of the CG Act and the CR Act.
Submissions of counsel for Petitioners
11. Mr. Amit Sibal, learned counsel appearing for SCIL submitted that under
Section 52A(2)(a) of the CR Act, the certificate for public exhibition issued
by the CBFC under Section 5-A CG Act is required to be displayed only
when the video film in question is publicly exhibited. Where it is meant for
private viewing, Section 52A(2)(b) and 52A(2)(c) get attracted and it is
nobody‟s case that the details thereunder are not being displayed. The
anxiety only is that despite these films being meant for private viewing not
requiring certification under Section 5-A CG Act, raids have been conducted
and DVDs and VCDs seized for want of a CBFC certificate. According to
Mr. Sibal, showing a film in a public place, to which the public is admitted,
constitutes „public exhibition‟ within the meaning of the CG Act. Analysing
various provisions of the CG Act including Sections 3, 4, 5-A, 7 and 10, Mr.
Sibal submitted that only such films that are meant for public exhibition are
required to be certified by the CBFC. He submits that the mere display of
the jacket or the cover containing the VCD or DVD as the case may be in a
shop selling such VCDs or DVDs does not amount to public exhibition.
12. In order to underscore the distinction between the different expressions
„sale‟, „distribution‟ and „exhibition‟, Mr. Sibal referred to Section 51 CR
Act which sets out the circumstances in which the copyright in a work shall
be deemed to be infringed. It is submitted that Section 51(b) CR Act
provides that when any person makes for sale or hire, or sells or lets for hire,
or by way of trade displays or offers for sale or hire or distributes either for
the purpose of trade or to effect prejudicially the owner of the copyright or
by way of trade „exhibits in public‟ or imports into India any infringing
copies of the work, then there is deemed infringement of the copyright.
Infringing copy under Section 2(m)(ii) CR Act means "in relation to a
cinematographic film, a copy of the film made on any medium by any
means" if such reproduction, copy or sound recording is made or imported in
contravention of the provisions of the Act. Mr. Sibal pointed out that
„exhibition‟ of a film in public would not include sale, display or distribution
of such DVD or VCD containing the film in a shop since these have been
identified as different acts of infringement. It is submitted that if such DVDs
or VCDs would be used to distribute among the public, material that is
otherwise objectionable and not fit for viewing, Section 292 IPC would take
care of all such contingencies and every person involved in the manufacture,
sale and distribution of such material would be liable thereunder. It is
submitted that the object of introducing Section 52A CR Act was to protect
against piracy and sale for commercial gains of cinematographic films on a
mass scale by persons other than the producers of such films. Section 52A
CR Act was not intended to prosecute the owners of the copyright
themselves.
13. Mr. Sibal pointed out that Section 4 CG Act envisages different kinds of
certificates granted by the CBFC upon examination of the film only where
such film is meant for public exhibition. This according to him was plain
from a reading of Section 5 as well. Under Section 14 CG Act there are
penalties for violation of Section 10 regarding exhibition of a film at a place
other than a place licensed for public exhibition. If the mere display in a
shop of the cover or jacket containing the VCD or DVD were to be
construed as „public exhibition‟ then no films could be stocked in a shop
because it was open to the entry of all persons irrespective of the age group.
Every such shop then would have to be licensed as fit for „public exhibition‟
which could in turn lead to absurd results not envisaged by the CG Act. It is
submitted that exhibition has a relation to the place and there can be no
„public exhibition‟ when a person purchases a DVD from a shop and goes
home and watches it by playing it on the DVD/VCD player in the private
confines of his or her home. It is submitted that if public is freely admitted
even to one‟s home then it may be construed as „public exhibition‟. This
would depend on the facts and circumstances of each case. By analogy, a
reference is made to Section 21 of the Prevention of Cruelty to Animals Act,
1960 which also indicates that „exhibition‟ has to be at a place where the
public is admitted. Referring to Section 10 CG Act, it is submitted that a
certified film can be exhibited only at such place which is licensed as fit for
„public exhibition‟ by the State Government. In this connection, Mr. Sibal
referred to the decisions in Balwinder Singh v. Delhi Administration AIR
1984 Delhi 379 and Restaurant Lee v. State of Madhya Pradesh AIR 1983
Madhya Pradesh 146 as well as the decision of the Supreme Court in State
of A.P. v. Nagoti Venkataramana (1996) 6 SCC 409 which, according to
Mr. Sibal, was mistakenly understood as permitting the police to launch
prosecution even where the VCDs/DVDs were meant for private viewing.
14. Mr. Sibal submitted that the requirement of censorship of films meant
for private viewing was not envisaged either by the CG Act or the CR Act.
To insist on certification of such films would be an unauthorised and
impermissible restriction on the freedom of speech and expression under
Article 19(1)(a) read with Article 19(2) of the Constitution of India. That
freedom was not only for producers of films but also of the buyers and
viewers of films. It is submitted that inasmuch as the CG Act itself is
subject to various restrictions relatable to Article 19(2), it cannot be
expanded to include censorship of audio-visual material meant for private
viewing. Since both the CR Act as well as the CG Act contained penal
provisions inasmuch they provided for prosecution and punishments for
offences committed thereunder, the provisions of both statutes had to be
construed strictly. The rule of purposive construction could not be imported
to require censorship even of films meant for private viewing. Mr. Sibal
submitted that if there was a departure from the plain meaning which lead to
either absurdity or repugnance then such departure could not be permitted.
On the interpretation sought to be placed by the Respondents the provisions
of Sections 7A and Section 10 CG Act would become unworkable. A
reference is also made to the observations of the Supreme Court in State of
Madras v. V.G. Row AIR 1952 SC 196. Mr. Sibal submitted that on the
plain meaning of the provisions of the CG Act, there was no legal basis for
requiring certification by the CBFC of films meant for private viewing. It is
submitted that in recognition of the possible difficulties that may be
encountered in requiring all kinds of films to be certified, the I&B Ministry
had itself issued an order on 24th September 2007 exempting certain films
from the requirement of certification. It is submitted that it would be
impractical for all VCDs and DVDs meant for private viewing to be
submitted to the CBFC for certification.
15. In this connection, reference was made to a letter dated 27th October
2006 written by the CBFC to the South Indian Music Companies
Association in which it was stated as under:
"As you are fully aware, as per the Cinematograph Act
1952, any audio-visual material meant for public viewing
is to be certified by CBFC. This means any film either in
celluloid or in video format intended to be shown to
public either in a licensed theatre or any public place and
the audio visual material available for sale across the
counters need to be submitted to CBFC for certification.
Moreover, with the later amendments introduced in 1983,
any film certified in one professional format, when it is
transferred into other formats and also celluloid film in
one language when dubbed into other languages need to
be submitted for certification if they are intended for
broadcasting either in cable network or television
channels at a later date.
As on date, only those audio visual materials which are
meant for exclusive telecast in different TV channels
does not come under our purview. The responsibility of
such material was left to the individual broadcasting
house under self regulation.
We are happy to know that a sudden spurt of awareness
in this regard has taken place and we are approached for
certification for huge amount of audio visual materials.
Despite our best efforts to expedite by way of increasing
the available infrastructure, as you are fully aware, it will
take some more time to create the needed infrastructure
as per the increase in workload."
16. It is pointed out that SCIL itself has had to wait for several months to
get its video films certified.
17. Supplementing the submissions of Mr. Sibal, Mr. Ashok Sethi learned
counsel appearing for some of the Petitioners in the connected writ petitions,
referred to the Cinematograph Act, 1918 („CG Act 1918‟), Section 5 of
which provided for the certification of a film as well as conditions of the
licence for exhibition of films. According to Mr. Sethi the provisions of the
CG Act 1918 were rearranged in the CG Act enacted in 1952. He referred to
the Statement of Objects and Reasons („SOR‟) of the CG Act 1918 where
the emphasis was on the safety of the place of exhibition and for the
requirement of certification only where the film was meant for „public
exhibition‟. It is submitted that Section 10 CG Act which was in Part III
could not be read independent of Sections 4 and 5-A CG Act which occurred
in Part II and that both Parts II and III of the CG Act were intrinsically
linked. The unworkability of the provisions was emphasised if every film
meant for private viewing and sold as such was required to be certified by
the CBFC. Referring to Section 7 CG Act read with Rule 37 of the
Cinematograph (Certification) Rules, 1983 („CCR‟) which permits the
Chairman, any member of the CBFC, any advisory panel, a regional
officer, any other officer or member of the staff of the Board in discharge of
their duties to enter any place licensed for „public exhibition‟ and to be
provided with a seat of the highest rate or next lower class to view the film
without charging the admission fee or entertainment tax, Mr. Seth submitted
that these provisions would not be workable in a situation where the film is
sold across the counter in DVDs or VCDs specifically indicating that they
are „only for private viewing‟. Mr. Seth next referred to Rule 21 CCR which
talks of making an application for the examination of a film and submitted
that an application is required to be made only when such film is meant for
public exhibition and not otherwise.
18. Mr. Sethi referred to Section 3 CR Act read with Section 2(ff) CR Act
for understanding the word „publish‟ occurring in Section 52A CR Act. He
submitted that it is only when the work is exhibited for viewing by the
public at a place to which the public was invited that a public exhibition of
such a film can be said to take place. A reference was also made to the
decision in Video Master v. Nishi Productions 1998 PTC (18) in the context
of satellite broadcasting and a distinction drawn between that situation and
the situation in hand, which according to Mr. Seth cannot amount to „public
exhibition‟. Mr. Seth then referred to the SOR of the amendment made in
1984 to the CR Act which introduced Section 52A where the entire focus
was on controlling video piracy.
19. The submissions of Mr. Sibal and Mr. Seth were further supplemented
by Mr. Rajeev Sharma, learned counsel appearing for some of the writ
Petitioners in the connected writ petitions.
Submissions of counsel for Respondents
20. The submissions on behalf of the UOI and CBFC were advanced by Mr.
A.S. Chandhiok, learned Additional Solicitor General („ASG‟), Mr. Atul
Nanda and Mr. Pankaj Batra, learned Advocates. The submissions on behalf
of the Government of National Capital Territory of Delhi („GNCTD‟) were
advanced by Ms. Zubeda Begum and Ms. Sana Ansari, learned Advocates
and on behalf of the CBI by Mr. Vikas Pahwa, learned Advocate.
21. It was submitted, on behalf of the Respondents, that the key to
understanding the entire issue is in Section 4 of the CG Act, which mandates
that every person desirous of exhibiting a film should apply to the CBFC for
a certification in respect of that film. It is submitted that mere „desire‟ to
exhibit a film is sufficient for such film to require certification by the CBFC.
It is submitted that the minute a film is made irrespective of its length or its
content and is offered for sale to the public, it manifests the desire of the
maker of the film to publicly exhibit such film. It is submitted that the mere
fact that copies of such VCDs or DVDs would be made available at a price
is sufficient to attract the entire gamut of the provisions of the CG Act that
require certification of such films. It is added that such films still require
certification. It is submitted that a purposive construction has to be placed
on the expression „public exhibition‟ keeping in view the changing context
where even though the film is not exhibited in a cinema hall, it is still
possible to be viewed by the members of the public sitting in the privacy of
their homes. If a film watched by several members of the public in the
privacy of their homes is held to be exempt from certification then there will
be a real danger of films being made to bypass the guidelines formulated by
the CBFC under Section 5-B of the CG Act and there would be no control
on the dissemination of objectionable material through VCDs and DVDs. It
is submitted that the emphasis is not only on piracy of cinematograph films,
which is indeed a serious problem, but also to ensure that films which are
meant for restricted public viewing, are not placed in the public domain
without passing through the procedure of certification.
22. It is submitted on behalf of the Respondents that what constitutes „public
exhibition‟ or „private exhibition‟ has been explained in several judgments
including Balwinder Singh; Video Master Bombay v. Union of India AIR
1986 Bom 428; Deep Snack Bar Sonepat v. State of Haryana AIR 1984
P&H 377; H.R. Club v. State of Bihar AIR 1986 Pat 182; Dilip Singh v.
State of Rajasthan 1992 (2) WLN 597 and Garware Plastics and Polyester
Ltd., Bombay v. Telelink AIR 1989 Bom 331. It is submitted that the main
prayer in the petition is only for a declaration that the Petitioners‟ films are
exempt from certification under Section 5-A CG Act. It is submitted that no
such declaration can be given in respect of these films in the abstract since
they are anyway meant for sale to the public and therefore meant for „public
exhibition‟. It is submitted that merely indicating on the jacket or cover of
the DVD or the VCD that it is meant for private viewing will not prevent the
subsequent „public‟ exhibition of such film. Moreover, the warning
published on the jacket is only under the CR Act. There was no warning
about the impending prosecution of the purchaser, the producer and/or the
seller of the film for violation of the CG Act.
23. As regards the place of exhibition, it is submitted by the learned counsel
for the Respondents that the licensing thereof is a separate process for which
there are statutes and/or rules made by different States. These were made by
the States in exercise of the legislative powers under Article 245 read with
Entry 33, List-II of the Constitution. The fact that a certified film cannot be
shown at any place other than the place licensed as fit for „public exhibition‟
in terms of the statute and rules of the State concerned cannot ipso facto
mean that unless such film is intended to be shown in a cinema hall, it is not
required to be certified by the CBFC under Sections 4 and 5-A of the CG
Act. Mr. Chandhiok referred to Rule 24(9)(f) CCR which contemplates that
a certificate may even be refused when CBFC is of the view that the "film is
not suitable for unrestricted or restricted public exhibition". It is submitted
that all kinds of films have to be submitted for certification. For the
purposes of Section 52A(2)(a) CR Act, once a film is „published‟ and
therefore communicated to the public, it would be a film that requires
certification under Section 5-A CG Act since such a film would be a film
that is capable of being publicly exhibited. According to Mr. Chandhiok
putting a film in the public domain whether by sale or otherwise will amount
to „public exhibition‟.
24. Although an apprehension was expressed that uncensored films might
contain objectionable material and, therefore, should not be allowed to be
distributed in the form of DVDs and VCDs, as was being done by the
Petitioners, learned counsel for the Respondents candidly stated that there
was no information on whether any part of the films produced by any of the
Petitioners before this Court contained any objectionable material. It is
however submitted that some of the Petitioners, including SCIL, have
themselves been submitting films for certification including films similar to
the ones described in these petitions which contained only devotional songs.
The statutory schemes of the CG Act and the CR Act
25. In the background of the above submissions, the issue that arises for
consideration is whether the DVDs or VCDs made or produced by the
Petitioners, and sought to be sold or offered for sale with the label that they
are meant for private viewing only, require prior certification by the CBFC
under Section 5-A CG Act? To determine this question the legislative
schemes of both the CG Act and the CR Acts have to be examined.
26. The CG Act is a successor legislation to the CG Act 1918. The SOR of
the CG Act 1918 indicated that it was meant to control exhibition of
cinematographs "with particular regard to the safety of those attending them
and to prevent the presentation to the public of improper and objectionable
films". A further object was to counter the "special danger from fire which
attends cinematograph exhibits as has been illustrated by terrible
catastrophies due to this cause in other countries...and to secure in the
interest of safety of spectators, a proper regard to the structural conditions of
the premises utilised". Consequently, under the CG Act 1918 an authority
was set up for granting licences intended to ensure that adequate precautions
are taken for the safety of persons attending the exhibitions and also to
ensure that certificate is revised in case of improper and objectionable films.
The CG Act, enacted in1952, is largely a rearrangement of the provisions of
the CG Act 1918. Under Section 2(c) CG Act „cinematograph‟ has been
defined as including "any apparatus for the representation of moving
pictures or series of pictures." Section 2(dd) CG Act defines „film‟ to mean
"a cinematograph film". As far as the present petitions are concerned, there
can be no manner of doubt that the films produced by the Petitioners and
proposed to sold in VCDs and DVDs answer the description of „film‟ under
the CG Act. It may be noticed that „cinematograph film‟ is also defined
under Section 2(f) of the CR Act, 1957 to mean "any work of visual
recording on any medium produced through a process from which a moving
image may be produced by any means and includes a sound recording
accompanying such visual recording and "cinematograph" shall be
construed as including any work produced by any process analogous to
cinematography including video films".
27. On the basis of both definitions under the CG Act and the CR Act,
DVDs and VCDs produced, manufactured and marketed by the Petitioners
in these cases whether containing video recordings of religious songs or
otherwise would answer the definition of „cinematographic film‟.
28. Under Section 3 CG Act, the Central Government constitutes the CBFC
for the purposes of "sanctioning films for public exhibition". Section 4 CG
Act which deals with examination of films by the CBFC reads as under:
"4. Examination of films-(1) Any person desiring to
exhibit any film shall in the prescribed manner make an
application to the Board for a certificate in respect
thereof, and the Board may, after examining or having,
the film examined in the prescribed manner-
(i) sanction the film for unrestricted public exhibition;
Provided that, having regard to any material in the film,
if the Board is of the opinion that it is necessary to
caution that the question as to whether any child below
the age of twelve years may be allowed to see such a film
should be considered by the parents or guardian of such
child, the Board may sanction the film for unrestricted
public exhibition with an endorsement to that effect; or;
(ii) sanction the film for public exhibition restricted to
adults; or
(iia) sanction the film for public exhibition restricted to
members of any profession or any class of persons,
having regard to the nature, content and theme of the
film; or
(iii) direct the applicant to carry out such excisions or
modifications in the film as it thinks necessary before
sanctioning the film for public exhibition under any of
the foregoing clauses; or
(iv) refuse to sanction the film for public exhibition.
(2) No action under the proviso to clause (i), clause (ii),
clause (iia), clause (iii) or clause (iv) of sub-section (1)
shall be taken by the Board except after giving an
opportunity to the applicant for representing his views in
the matter."
29. The kinds of certificates that can be issued after the CBFC has examined
a film under Section 4, is set out under Section 5-A which reads as under:
"Section 5-A - Certification of films
(1) If, after examining a film or having it examined in the
prescribed manner, the Board considers that--
(a) the film is suitable for unrestricted public exhibition,
or, as the case may be, for unrestricted public exhibition
with an endorsement of the nature mentioned in the
proviso to clause (i) of sub-section (1) of section 4, it
shall grant to the person applying for a certificate in
respect of the film a "U" certificate or, as the case may
be, a "UA" certificate; or
(b) the film is not suitable for unrestricted public
exhibition, but is suitable for public exhibition restricted
to adults or, as the case may be, is suitable for public
exhibition restricted to members of any profession or any
class of persons, it shall grant to the person applying for a
certificate in respect of the film an "A" certificate or, as
the case may be, a "S" certificate,
and cause the film to be so marked in the prescribed
manner:
Provided that the applicant for the certificate, any
distributor or exhibitor or any other person to whom the
rights in the film have passed shall not be liable for
punishment under any law relating to obscenity in respect
of any matter contained in the film for which certificate
has been granted under clause (a) or clause (b).
(2) A certificate granted or an order refusing to grant a
certificate in respect of any film shall be published in the
Gazette of India.
(3) Subject to the other provisions contained in this Act, a
certificate granted by the Board under this section shall
be valid throughout India for a period of ten years."
When does 'public exhibition' take place of a cinematograph film?
30. Much of the argument of the present case has turned around the
expression „public exhibition‟ that occurs in Sections 3, 4 and 5-A of the CG
Act. That expression has not been defined under the CG Act. It has not been
defined under the CR Act either. The only provision where the expression
has been defined is Rule 2(xvi) of the Delhi Cinematograph (Exhibition of
Films by Video Cassettes Recorder/Player) Rules, 1986 („Delhi Rules
1986‟). Rule 2(xvi) defines the said expression to mean "exhibition of films
for consideration and includes exhibitions organised by club/society/
association for its members". The above definition indicates that any
exhibition of a film for consideration would amount to a „public exhibition‟.
The expression „public exhibition‟ in the CG Act has to be therefore
understood in the context of the CCR and other provisions of the CG Act
and CR Act. This approach follows the observation of the Supreme Court in
Reserve Bank of India v. Peerless General Finance and Investment Co.
(1987) 1 SCC 424 that (SCC, p. 450): "Interpretation must depend on the
text and context. They are the bases of interpretation. One may well say if
the text is texture, context is what gives it colour. Neither can be ignored.
Both are important. That interpretation is best which makes the textual
interpretation match the contextual." The other principle of interpretation
invoked is that the intention of the legislature must be found by reading the
statute as a whole. The Supreme Court has adopted this in several decisions
including Poppatlal Shah v. State of Madras AIR 1953 SC 274; Philips
India Ltd. v. Labour Court (1985) 3 SCC 103 and Mohan Kumar
Singhania v. Union of India AIR 1992 SC 1.
31. Rule 21 CCR provides for the procedure for applying for a certificate for
a film meant for public exhibition. Form I appended to the CCR is the form
of application "for certificate for public exhibition of a film produced in
India". Form I-A is the form of application for certification "for public
exhibition of a video film produced in India". Form II is for "public
exhibition of a film imported into India". Under Rule 22(9), after the
examination of the film by each member of the Examining Committee, the
CBFC can issue a „U‟ certificate when a film is suitable for unrestricted
public exhibition, a „UA‟ certificate when they find it suitable for
unrestricted public exhibition but with an endorsement of caution that the
question as to whether any child below the age of twelve years may be
allowed to see the film should be considered by the parents or guardian of
such child, or opine that the film is suitable for public exhibition only to
adults, i.e., for „A‟ certificate, or that the film is suitable for public
exhibition restricted to members of any profession or any class of persons
having regard to the nature, content and theme of the film, i.e., fit for „S‟
certificate. The Examining Committee may also require or modify certain
portions of the film as a pre-condition for grant of any of the above
certificates. Under Rule 22(9)(f) the Examining Committee could also
decide that the film is not suitable for either unrestricted or restricted public
exhibition.
32. The CCR identifies at least three categories of films. Rule 2(ix) defines
a „feature film‟ to mean "fictionalized story film exceeding 2000 metres in
length in 35 mm or corresponding length in other gauges or on video". Rule
2(xi) defines „long film‟ as "exceeding 2000 metres in length in 35 mm or
corresponding length in other gauges or on video". Rule 2(xvi) defines a
„short film‟ to be a film "with length up to and including 2000 metres in
length in 35 mm or corresponding length in other gauges or on video".
Therefore, there can at least be four kinds of video films that require
certification. All of these do not have to be feature films or commercial
films. A close examination of the Forms I, I-A etc. indicate that the applicant
is required to answer in Column 2 „whether the video film is a
newsreel/documentrary/scientific/educational/feature/advertisement film or
video film‟. This is indicative of the numerous categories of films not
restricted to feature films. Depending on whether a film is a „short film‟ or a
„long film‟ the composition of the Examining Committee changes under
Rule 22. Further, under Rule 21(4) certain relaxation is granted as regards
the time to furnish the documents prescribed under Rule 21(3) where the
film is a newsreel/documentary or other short film. There is nothing to
indicate that a film consisting only of religious or devotional songs and
meant for public exhibition would not require certification under the above
provisions.
33. Under Section 4 CG Act any person desiring to exhibit any film is
expected to make an application to the CBFC for a certificate. On examining
such film the CBFC can only grant a certificate either approving it for
restricted or unrestricted „public exhibition‟ in the manner set out in Section
4 or refuse the application. In the context in which they occur, it must be
held that the words "any person desiring to exhibit any film" in Section 4
CG Act should be understood as "any person desiring to publicly exhibit any
film". What then amounts to „public exhibition‟ of a film is a question that
requires an answer. The question also assumes significance in the context of
the present cases in view of Section 52A which was inserted in the CR Act
by an amendment with effect from 8th October 1984. The SOR of the said
amendment acknowledges that "because of the recent video boom in the
country, there are reports that uncertified video films are being exhibited on
a large scale and a large number of video parlours have also sprung up all
over the country and they exhibit such films recorded on video tapes by
charging admission fees from their clients". It was also stated that the
amendment to the CR Act was "to combat effectively the piracy that is
prevalent in the country." Consequently the amendments, inter alia, were
"to specifically make the provisions of the Act applicable to video films and
computer programmes" and "to require the producers of records and video
films to display certain information in the record, video films and containers
thereof." Section 52A CR Act reads as under:
"52A Particulars to be included in sound recording and
video films-(1) No person shall publish a sound recording
in respect of any work unless the following particulars are
displayed on the sound recording and on any container
thereof, namely:-
(a) the name and address of the person who has made the
sound recording;
(b) the name and address of the owner of the copyright in
such work; and
(c) the year of its first publication.
(2) No person shall publish a video film in respect of any
work unless the following particulars are displayed in the
video film, when exhibited, and on the video cassette or
other container thereof, namely:-
(a) if such work is cinematograph film required to be
certified for exhibition under the provisions of the
Cinematograph Act, 1952 (37 of 1952), a copy of the
certificate granted by the Board of Film Certification under
Section 5-A of that Act respect of such work;
(b) the name and address of the person who has made the
video film and a declaration by him that he obtained the
necessary licence or consent from the owner of the
copyright in such work of making such video film; and
(c) the name and address of the owner for the copyright in
such work."
34. Under Section 52A (2) CR Act no person shall publish a video film in
respect of any work unless certain particulars are displayed when exhibited,
and on the video cassette or other container. The word „publish‟ has to be
understood as the extension of the definition of the word „publication‟
defined under Section 3 CR Act which reads as under:
"3. Meaning of publication- For the purposes of this
Act, "publication" means making a work available to the
public by issue of copies or by communicating the work
to the public."
35. This in turn takes us to the phrase „communication to the public‟ which
has been defined under Section 2(ff) CR Act as under:
"communication to the public means making any work
available for being seen or heard or otherwise enjoyed by
the public directly or by any means of display or
diffusion other than by issuing copies of such work
regardless of whether any member of the public actually
sees, hears or otherwise enjoys the work so made
available.
Explanation-For the purposes of this clause,
communication through satellite or cable or any other
means of simultaneous communication to more than one
household or place of residence including residential
rooms of any hotel or hotels shall be deemed to be
communication to the public."
36. It appears that the publishing of a video film in respect of any work
would take place when such work is made available to the public for being
seen, heard or otherwise enjoyed by means of display or diffusion
"regardless of whether any member of the public actually sees, hears or
otherwise enjoys the work so made available." The explanation to Section
2(ff) CR Act which was inserted also by the 1984 amendment and later
further amended in 1995 makes it clear that exhibition through satellite TV
or cable or simultaneous communication to more than one user including
residential rooms of any hotel or hostel shall be deemed "to be
communication to the public." This is a marked change from the
understanding of what could tantamount to „exhibition to the public‟. It is
no longer confined to a place where the public is admitted like a cinema hall
but it would include residential rooms of any hotel or hostel. Consequently,
a whole new dimension has been added to the legislative understanding of
„public exhibition‟.
37. A broadcast of films played on a DVD or a VCD through a cable
television network adds another dimension to the issue. In Garware Plastics
and Polyesters Ltd. v. M/s Telelink, where the question was whether the
showing of video films over a cable TV network amounted to
communication of such film to a section of the public, it was held that one of
the tests to determine whether a film can be said to be shown to the public is
by determining the character of the audience. A second test was determining
the nature of the relationship between the owner of the copyright and the
audience. Applying the latter test, it was held that an audience which pays
for watching the film "cannot be considered as domestic viewers of the
owner of the copyright... they must be considered as members of the
public." It was held that viewers of a cable TV network who receive a
broadcast through a dish antenna to which TV sets are connected, may be
watching it in the privacy of their homes but would still be considered as a
section of the public.
38. Where a film is made on a VCD or DVD and such VCD or DVD is
distributed either free of cost or by way of sale to the public, it would
tantamount to publication of such video film within the meaning of Section
52A(2) CR Act. When such film which is distributed or sold is „exhibited‟
then it should contain the certificate as required under Section 52A(2)(a),
i.e., the certificate of the CBFC under Section 5-A CG Act. In other words,
if someone enters a shop selling VCDs and DVDs, purchases a film on VCD
or DVD and then takes it to the residence and plays it on the DVD or VCD
player, such person should be able to first see the certificate issued by the
CBFC under Section 5-A CG Act. If such person is not able to view such
certificate on the VCD or DVD then a violation of Section 52A CR Act
takes place. In other words, in the whole chain of producing, manufacturing,
publication and communication of that film by distributing the film or
making it available to the public by way of sale till the stage of exhibition of
such film at a subsequent stage, the person making the film or the person
making available such film to the public would be liable both under the CG
Act and the CR Act. Every person purchasing such VCD or DVD would be
a member of the public who is likely to exhibit the film subsequent to the
purchase. The maker and distributor of the film is expected to anticipate
such exhibition of the film by the purchaser.
39. The insertion of Section 52 A in the CR Act in fact fortifies what Section
5-A CG Act requires. In the context in which the Petitioners have brought
forth these petitions, the question as to the interpretation of Section 5-A CG
Act has to necessarily be answered with reference to Section 52A(2) CR
Act. The two provisions, although of different statutes, reinforce each other
since they collectively seek to deal with the same „mischief‟, viz., the
rampant piracy of certified films and the circulation among the public of
films that are not certified fit for, unrestricted or restricted, public viewing.
A film which is made available to the public either by distribution or by sale
would be a film that is sought to be publicly exhibited within the meaning of
Section 4 CG Act. When such film is submitted to the CBFC for
certification, the CBFC would examine whether in light of the guidelines
issued under Section 5-B CG Act such film is suitable for restricted or
unrestricted „public exhibition‟. In the context of the films of the kind
produced by the Petitioners and offered for sale through VCDs and DVDs,
the CBFC is while examining the films for certification not really concerned
about the place where such film is ultimately going to be exhibited.
40. There is merit in the contention of the Respondents that the provisions
under Part II CG Act (of which Sections 3, 4, 5 and 5-A CG Act form part)
constitute a separate scheme with a separate penalty clause (Section 7 CG
Act) whereas Section 10 CG Act (relating to the place of exhibition) is in
Part III which has a separate penalty clause (Section 14 CG Act). As will be
noticed later, the so called „absurdity‟ as pointed out by the counsel for the
Petitioners that might result if the Petitioners DVDs are required to be
certified has been taken care of, at least as far as the NCT of Delhi is
concerned, by a separate set of statutory Rules.
41. The contention of the Petitioners that Section 52A CR Act is not meant
for owners of copyright in films and only applies to those seeking to deal
with copyrighted films, misses the intent of the legislature consciously
linking the statutory requirement of certification under Section 5-A CG Act
with the requirement under Section 52A CR Act. The maker of a film who
desires that it should be publicly exhibited, and where such film is not
exempted from certification under Section 9 CG Act, has to necessarily
submit such film for prior certification to the CBFC under Section 4 read
with Section 5-A CG Act. To the extent that this requirement also forms part
of Section 52A(2) CR Act, the Petitioners cannot possibly contend that they
do not have to comply with the requirement of obtaining certification under
Section 5-A CG Act. As far as the requirements under Section 52A(2)(b)
and 52A(2)(c) are concerned that information is to be displayed irrespective
of whether the video film is exhibited publicly or not.
42. The CR Act underwent significant changes, first in 1984 and then in
1995, partly by way of acknowledging the technological advances in the
medium through which films are exhibited. By the insertion of Section 52A
CR Act, these changes inevitably influenced the notion of „public exhibition‟
for the purposes of Sections 4 and 5-A CG Act as well. This is reinforced by
the fact that, for a violation of Section 5-A read with Section 4 CG Act
straightway two consequences would get attracted. One is the prosecution
under Section 7 CG Act and the other the prosecution under Section 68A of
the CR Act which reads as under:
"Penalty for contravention of Section 52A-Any person
who publishes a sound recording or a video film in
contravention of the provisions of Section 52A shall be
punishable with imprisonment which may extend to three
years and shall also be liable to fine."
43. The submission that Section 14(d) read with Section 51 CR Act alone is
relevant for deciding whether infringement in respect of a cinematograph
film has taken place does not hold good in the context of Section 52A CR
Act. It is possible to harmoniously interpret Section 52A CR Act with
Sections 4 and 5 of the CG Act to achieve the desired object.
44. The mere labelling by the film maker or distributor that the film is meant
for private viewing will not exempt the film from prior certification under
Section 5-A CG Act. Once it leaves the shop where the film is purchased,
neither the maker of the film nor its seller, has any control on whether it is
viewed by one person or by a hundred, or whether it is viewed in a place to
which the public is invited or in the private confines of a home. Therefore,
the interpretation of the words „public exhibition‟ has to necessarily be
contextual keeping in view the essential purpose of the CG Act and the
insertion of Section 52A in the CR Act. In view of the amendments to the
CR Act as impacting on the CG Act, what constitutes „public exhibition‟,
both for the purposes of Section 52A CR Act and Section 5-A CG Act, is no
longer confined to exhibition in a cinema hall. Even if there is no audience
gathered to watch a film in a cinema hall but there are individuals or families
watching a film in the confines of their homes, such viewers would still do it
as members of the public and at the point at which they view the film that
would be an „exhibition‟ of such film.
45. In the context of the present petitions, at the point where a member of the
public, to whom the Petitioners‟ films on DVD or VCD is made available,
plays it on an equipment and views such film, whether in the confines of a
private space or otherwise, prior certification of that film in terms of Section
5-A CG Act would become necessary, since for the purposes of Section 52A
(2) of the CR Act the film is exhibited at that point. If at that point upon
viewing of such film it is found not to display the certificate of the CBFC
under Section 5-A CG Act, then a violation of Section 52A CR Act can be
said to occur. Since the maker or distributor of the film, at the stage of
offering it for sale or otherwise making it available to the public, is aware of
the impending viewing of the film in the above manner, it would be
incumbent on such film maker or distributor, in terms of Section 52A CR
Act read with Section 5-A CG Act, to ensure that the film has the prior
certification of the CBFC. In other words, the maker or the distributor of a
film made available to the public by sale or otherwise is expected to
anticipate the exhibition of such film by such member of the public
subsequently and to ensure therefore that the film bears a certificate under
Section 5-A CG Act. The above legal position is evident from the plain
language and on a contextual interpretation of the relevant provisions of the
CG Act and the CR Act.
Mere display of cover containing DVD not 'public exhibition'
46. This Court is unable to accept the extreme position taken by some of the
learned counsel appearing for the Respondents that the mere display of the
container in a shop amounts to public exhibition of such film. Such an
interpretation will indeed lead to absurd results including certification of
such a shop being fit for „public exhibition‟ by the authority constituted for
that purpose under the relevant rules or statutes of the State governments.
The mere display in a shop of the container containing the VCD or DVD
will not amount to public exhibition. However, it will amount to publication
of such film within the meaning of Section 52A CR Act read with Section 3
and Section 2(ff) of the CR Act. It will amount to offering for sale a DVD
and VCD to the public either for consideration or otherwise. The exhibition
itself may take place at a subsequent point in time. However, when such
exhibition takes place and the film does not bear the certificate under
Section 5-A of the CG Act then the violation of Section 52A(2)(a) CR Act
would stand attracted.
47. It is a moot point whether a person who purchased the film without
verifying the existence of certificate under Section 5-A CG Act would also
be liable when such film is exhibited in the confines of his or her home.
However, none of the Petitioners here are the end-users or end-viewers of
such films. As far as the present Petitioners are concerned having
manufactured and produced such films and having made such films
available to the public, they have „published‟ such films within the meaning
of Section 52A CR Act.
Discussion of case law
48. The decisions, extensively cited by counsel on both sides, touch upon
some of the aspects of the issue but none of them in fact deal with the
context in which the issue arises in these petitions. In the State of A.P. v.
Nagoti Venkataramana, the Respondent was running a video library and 90
cassettes of various cinematograph films in Telugu, Hindi and English were
seized from him. The entire discussion in the judgment is on piracy. It
appears that the Respondent there was distributing or giving on hire video
films which were infringing copies of cinematograph films which were
perhaps certified but copies of which were made without permission of the
owner. It was in this context that the Respondents submitted that "unless the
owner is identified and he comes and gives evidence that he had a copyright
of the video film which was sought to be in violation of Section 52A or
Section 51 of the Act, there is no offence made out by the prosecution and
that, therefore the conviction and sentence of the Respondent is not valid in
law." It is in the context of a third party trying to sell or give on hire pirated
copies of cinematograph films without the permission of the owner thereof
that it was held that there was a violation of Section 52A of the CR Act
which was punishable under Section 68A of the CR Act. There was no
discussion of any provision of the CG Act. In the considered view of this
Court, the said decision is of no assistance in determining the central issue
that arises in the present petitions.
49. In Balwinder Singh, the Petitioner owned a video set, and a TV set for
both of which he possessed a licence. He hired a commercial space and
installed a TV and video set. He used the space for displaying films and
charged entrance fee of Rs.2/- per show per head inclusive of entertainment
tax. The sitting capacity of the shop was 25. Some viewers sat on benches
while others sat on the floor. It was in the above context that the Delhi High
Court was called upon to examine if there was a violation of Section 10 CG
Act which reads as under:
"10. Cinematograph exhibitions to be licensed.-Save
as otherwise provided in this Part, no person shall give an
exhibition by means of a cinematograph elsewhere than
in a place licensed under this Part or otherwise than in
compliance with any conditions and restrictions imposed
by such licence."
50. In para 18 it was observed as under: (AIR, p. 383)
"(18) Section 10 of the Cinematograph Act, which we
have read earlier, prohibits anyone to give an exhibition
by means of Cinematograph elsewhere than in a place
licensed under Part-III of the Act and then also in
accordance with and in compliance with any conditions
and restrictions imposed in the license. The crucial words
in the section, in our opinion, are "shall given an
exhibition". Giving of an exhibition will be different
from viewing a programme received on a television set
by public transmission or with the aid of an apparatus
like a video. The confusion which the petitioner sought to
create was that projecting films with the aid of video and
television would amount to viewing and not exhibiting.
The distinction between viewing and exhibiting is
obvious. A person who sees a film views it. A person
who makes it possible for others to see a film exhibits it
or gives an exhibition of the film. A person is permitted
to give an exhibition only in a licensed premises and that
also in accordance with the conditions of the said license.
He cannot give an exhibition anywhere he likes though
he may be the owner of the premises or a tenant of the
premises."
51. The Division Bench of this Court in the above decision was making a
distinction between the words „give an exhibition‟ and „view‟. It was stated
that when it is made possible for others to see a film, an exhibition is given
of that film. All this was in the context of where such an exhibition could be
given. It was held that it had to be a place certified or licensed as being fit
for such exhibition under Section 10 CG Act.
52. Likewise, in H.R. Club the films were being shown on TV screen by the
Petitioner which was a society registered under the Societies Registration
Act, 1860. A Division Bench of the Punjab & Haryana High Court held that
it would attract Section 3 of the Bihar Cinemas (Regulation) Act, 1954
which was identical to Section 10 CG Act. Para 10 of the said decision,
which are relevant, read as under: (AIR, pp 184-85)
"10. It may next be pin-pointed that the Act does not use
the word 'public' or 'private' with regard to the place or
the same appellation with regard to the word 'exhibition'.
Therefore, to impose or unduly emphasise the public or
private nature of the premises would not be well
warranted in the context of the Act. On behalf of the
respondents it was argued with plausibility that even in a
private home if there is a display of saris or even of
flowers which is thrown open to large sections of people
then in common parlance too it may well come within the
ambit of an exhibition of saris or flowers. This would
consequently be the more so when viewed in the context
and the purposes of the Act. Therefore, where larger
groups of the community or larger sections of the public
may have access to view a performance, the same would
become an exhibition irrespective of the nature of the
place where it is held. If the purpose of the regulation is
to safeguard public health, public safety or public order
then it is irrelevant where the section of the public has
collected -- be the place one with a wholly unrestricted
right of entry or a private one with severe restrictions
thereto. It was submitted -- and, in my view, rightly --
that if a thousand people or more are viewing the
showing of a film on the V.C.R. -- T.V. screen, it is
irrelevant whether the same is being done in a cinema
hall or a club hall. In either case it would be an exhibition
for the purposes of the Act and in either case the
considerations of public health and public safety would
be identical. Viewed from another angle, the question is
not of any inherent right of access but the factum of
access and collection of a large number of persons in a
place. Once that is so, the display or performance
becomes an exhibition under the Act irrespective of the
fact whether the place is public or private, whether right
of access is unrestricted or controlled or whether the
same is commercial for payment or merely by aesthetic
invitation. Consequently, to view the matter from a
narrow myopic angle of the place being technically a
public or a private one may well tend to defeat the larger
purposes of the Act and the requirements or regulation
and licensing in the interest of public health and safety.
53. In Restaurant Lee, a Division Bench of the Madhya Pradesh High Court
was called upon to examine if seeing of a film through VCR on a TV screen
and collecting a payment from the customer would attract Section 3 of the
Madhya Pradesh Cinema (Regulation) Act, 1952 which was identical to
Section 10 CG Act. In para 8 it was observed as under (AIR, p. 150):
"8...One of the meanings of "exhibit" is "to show
publicly for the purpose of amusement or instruction."
"Exhibition" means a public display, i.e. a display to
which public is admitted [See Oxford English Dictionary
Vol. III, pages 408-409 and the Random House
Dictionary Unabridged Edition page 499]. It is in this
sense that the word "exhibition" as used in Sec.3 has to
be understood. For example, if a VCR is used for
playing a pre-recorded cassette of a movie in one‟s own
residence and the show is restricted to the family
members or friends and the public is not admitted the
show will not be an exhibition coming within the
prohibition of Section 3. The Petitioners, however, show
the moves with the help of VCR and TV sets in their
restaurants where public is admitted. This clearly
amounts to exhibition by means of a cinematograph
bringing the activity within the ban of Section 3. The
Petitioners cannot indulge into this activity unless they
obtain a licence for their restaurants under the Act."
54. In Dilip Singh, it was held that running of a video parlour by a person
who exhibited films and movies on TVs and VCRs would attract the
provisions of the Rajasthan Cinemas (Regulation) Act, 1952. This judgment
again had to deal with the place of exhibition.
55. It must be observed that the requirement for obtaining certification for a
film that is sought to be publicly exhibited by distribution or sale of VCDs
or DVDs was not a question that arose for consideration in any of the above
cases. These cases were really concerned with certification of a place where
such film was going to be exhibited. In the context of those cases, the places
where such films were exhibited were either a shop (like in Balwinder
Singh), or a restaurant (like in Restaurant Lee), or a video parlour (like in
Dilip Singh) or a club (like in H.R. Club). On the other hand, the present
petitions are concerned with the purchasing of a VCD or DVD from a shop
and later being taken home and being viewed on a TV screen by an
individual. Since this context did not directly arise in the facts of the cases,
the observations made that such an exhibition would amount to public
exhibition should be held to be observations made in obiter.
56. A different approach appears to have been taken by the Bombay High
Court in M/s. Video Master Bombay. The factual context was however also
different. The Petitioners there were challenging the orders of the
Respondents requiring them to submit the video tapes made from certified
films and collecting fees on that account. It was observed after discussing
the provisions of the CG Act that "the examination and certification of the
film is necessary if it is meant for public exhibition only and not otherwise".
Thereafter in para 11 it was observed as under (AIR, p. 432):
"11. Thus admittedly Section 4 applies when a person
desires to use the film for public exhibition. In that case
he is required to apply for certification of the film in the
prescribed manner. The word 'desiring' as used in
Section 4(1) is pertinent. It is the desire or intention
which is relevant for deciding the question. The film
which is meant for sale and distribution to the public in
general is nothing but a public exhibition of the film.
Therefore any film which is meant for public exhibition
will require examination and certification in accordance
with the procedure prescribed by the Act. The material
on which such a film is produced will not be very much
relevant. This position is also not disputed before us."
57. However, that was not the main question that arose in M/s. Video Master
Bombay. The discussion then turned to Rule 30 of the CCR which requires
pasting of a duplicate copy of Part I of the certificate on the film of which a
copy was made. This requirement was stated to have served the statutory
purpose of controlling and regulating the public exhibition of the video
films. The Bombay High Court accepted the contention of the Petitioners
there that if the film of which a copy was made was already certified then
the photocopy of such certified film "cannot be subjected to the procedure
prescribed by Rule 21, over again." It was concluded that "thus an
application for examination and certification will not be necessary if it is an
exact video copy of already examined and certified film." In the present
petitions, the question is not whether the Petitioners would require a
certification if they seek to distribute video copies of an already certified
film.
58. It may be noticed that the order dated 24 th September 2007 issued by the
I&B Ministry under Section 9 CG Act to a certain extent accounts for the
above decision in M/s. Video Master Bombay. The said order reads as
under:
"No.807/3/2007-F(C)
Government of India
Ministry of Information & Broadcasting
New Delhi-1, the 24th September, 2007
ORDER
In exercise of the powers conferred by Section 9 of the
Cinematograph Act, 1952 (37 of 1952), the Central
Government hereby grants exemption from the
provisions relating to certification of films, contained in
Part II of the said Act and the Rules made thereunder, to
the exhibition of the following categories of films:
(i) Recordings of sports events telecast live in India.
(ii) Recordings of animation programmes telecast in
India.
(iii) Purely educational programmes/films for levels of
CBSE school curriculum upto class V, except in sex
education.
(iv) Songs compilations from films certified as „U‟
subject to the condition that the compiler will indicate the
certificate number and category in respect of each such
song included in the compilation.
(v) Video cassettes, CD or DVD copies of films already
certified for theatrical release, provided that a legible
copy of the certificate is inserted in the video
cassette/DVD/CD. The outer surface of the video
cassette, CD or DVD should also clearly mentioned the
category of certification viz. „U‟, „UA‟, „A‟ or „S‟.
(vi) Classical music performances.
(vii) Indian classical dance performances.
(viii) Recordings of programmes telecast by
Doordarshan.
2. This exemption will take effect immediately and will
operate until further orders."
59. It appears that when difficulties were anticipated in requiring
certification of any and every film, the Government itself exercised the
powers under Section 9 CG Act to issue such order.
Effect of the Delhi Rules 1986
60. It may be noticed here that the Delhi Rules 1986, which were adverted to
earlier, has also to a certain extent, accounted for the observations made in
some of the above judgments. Rule 3 thereof reads as under:
"3. No place shall be opened or allowed to remain open
for use as a video cinema unless the owner, tenant or
occupier thereof shall have obtained a cinematograph
licence, therefor under Section 10 of the Cinematograph
Act, 1952 provided that no such licence shall be
necessary for exhibition of film on television screen
through video cassette recorder for domestic purposes
to the family members of the household." (emphasis
supplied)
61. An apprehension was expressed by some of the Petitioners that once a
VCD or a DVD film is purchased with certification under Section 5-A CG
Act, it cannot be viewed by such purchaser even within the confines of his
home without violating Section 10 CG Act. This has been taken care of by
the above provision. Rule 3 of the Delhi Rules 1986 specifically states that
viewing on a TV screen through a VCR for domestic purposes by the family
members of a household does not require a licence under Section 10 CG
Act.
Summary of conclusions
62. The upshot of the above discussion is that:
(a) Once a film is made or produced in a DVD or VCD or any other
format and is made available or distributed to the public or offered for
sale to the public, it will amount to publication of such film within the
meaning of Section 52A(2)(a) of the CR Act.
(b) In the context of the present petitions, at the point where a member
of the public, to whom the Petitioners‟ films on DVD or VCD is made
available, plays it on an equipment and views such film, whether in
the confines of a private space or otherwise, prior certification of that
film in terms of Section 5-A CG Act would become necessary, since
for the purposes of Section 52A(2) of the CR Act the film is exhibited
at that point.
(c) The maker or the distributor of a film made available to the public
by sale or otherwise is expected to anticipate the exhibition of such
film by such member of the public subsequently and to ensure
therefore that the film bears a certificate under Section 5-A CG Act.
(d) Whether such film, if it contains purely religious or devotional
songs, should be exempted from the certification is a matter for the
Government of India to take a decision on in exercise of its powers
under Section 9 CG Act. However, absent such exemption under
Section 9 CG Act, it must be held that the films being produced and
manufactured by the Petitioners, even if they contain purely religious
or devotional songs as claimed by them, would require prior
certification by the CBFC under Section 5-A CG Act. The absence of
such certificate in the film itself when it is exhibited will attract the
violation of Section 52A(2)(a) CR Act.
Consequences of the above interpretation
63. There are, of course, consequences to this interpretation of the provisions
of the CG Act and the CR Act. It will mean that the certification work of the
CBFC will increase manifold. However, this by itself cannot mean that the
requirement of obtaining certification is an unreasonable one for the
purposes of Article 19(1)(a) read with Article 19(2) of the Constitution. The
scope of these petitions does not involve examining the constitutional
validity of any of the provisions of the CG Act or the CR Act. The Court has
to interpret the provisions as it finds them.
64. This Court had required the CBFC to provide information on how many
non-feature films on VCDs and DVDs were submitted to it for certification
during the last five years. The information submitted by a letter dated 24th
September 2010 of the CBFC shows that in the last five years the number of
music/films and other VCDs and DVDs certified by the CBFC, Delhi during
the last five years were as under:
Year No. of Music/Films and other
VCDs & DVDs certified by the
CBFC, Delhi
2006 1283
2007 3228
(Till 24th
Sept.2010)
Total 6521
65. The drop in the number of films submitted for certification since 2007
could be attributed to the interim orders passed by this Court in these
petitions. Previous to the raids that were conducted in December 2006, there
appears to have been no effort to prosecute the manufacturers or distributors
of DVDs and VCDs containing purely religious matter for violation of
Section 4 read with Section 5-A of the CG Act and Section 52A(2)(a) of the
CR Act. This can only be attributed to the understanding of the CBFC and
the UOI through the I&B Ministry as well as the State Governments,
including the GNCTD, that such films, which contain only religious songs
did not require certification. In one sense these petitions were also test cases
for the Respondents as the legal position was not very clear. In view of the
above factual position, Mr. Chandhiok learned ASG fairly stated that
whatever the decision of this Court, the UOI would apply it only
prospectively.
Consequential directions
66. As far as the Petitioners before this Court who are manufacturers and/or
distributors or sellers of cinematograph films, each of them will adhere to
the law as explained in this judgment and any film which is hereafter made
by them will, before being sold or offered for sale or distributed by them to
the public in DVD, VCD or any electronic or other format, be first submitted
to the CBFC for certification. It is for the CBFC to decide whether it wants
to increase its machinery to ensure that such certification takes place
expeditiously. It is also meanwhile for the UOI to decide whether a film
containing only religious or devotional material would require to be
exempted from certification under Section 9 of the CG Act and on what
terms. As far as the CBI is concerned it can proceed with the prosecutions
already launched in accordance with law. However, in view of the statement
by the learned ASG, the present judgment will apply prospectively and will
not be used by the CBI to register any fresh cases in respect of the films
already produced and offered for sale or distributed to public by any of the
Petitioners. The CBI and the law enforcement machinery of the GNCTD will
be free to proceed against any of the Petitioners if they act hereafter in
contravention of the law.
67. The writ petitions, including W.P. (C) No. 6481 of 2007, are disposed of
in the above terms. The interim orders are vacated. All the pending
applications are disposed of.
S. MURALIDHAR, J.
NOVEMBER 24, 2010
dn
