Dharmaprachar Sabha & Anr. vs Union Of India & Ors.
2014 Latest Caselaw 5959 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 19th November, 2014

+              W.P.(C) No.7969/2014 & CM No.18678/2014 (for stay)
    DHARMAPRACHAR SABHA & ANR.               ..... Petitioners
                  Through: Mr. M.N. Krishnamani, Sr. Adv. with
                           Ms. Manjula Gupta, Mr. Kanak
                           Tyagi, Mr. Nikhil Sharma & Mr.
                           Rahul Bhandari, Advs.
                  Versus
    UNION OF INDIA & ORS.                    ..... Respondents

Through: Mr. Abhay Prakash Sahay with Mr. Deepak Gupta, Mr. Amit Kishore Sinha, Ms. Indu Prabha & Ms. Sonya Rathore, Advs.

Mr. K. Raghavacharyulu & Ms. Arunima Pal, Advs. for R-3.

CORAM:-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This petition under Article 226 of the Constitution of India, filed as a

Public Interest Litigation (PIL), seeks i) revocation of the Certificate issued

by the respondent No.2 Central Board of Film Certification (CBFC) to the

Hindi film „Singham Returns‟ on the ground that the same on the one hand

shows one religion and its religious and spiritual practices, places and

leaders in negative, demeaning and derogatory light and on the other hand

glorifies another religion and its religious and spiritual practices, places and

leaders; ii) a CBI inquiry into the grant of Certificate for public exhibition to

the said film; iii) a general direction to the respondent No.2 CBFC to refuse

issue of certificates to films wherein the image of religious and spiritual

places is maligned or is shown in negative light; and, iv) a direction to the

Union of India (UOI) to provide for a forum for redressal of public

grievances regarding wrong certification of films.

2. We have heard the senior counsel for the appellant at length but do

not find any case for entertaining the petition in public interest to be made

out. The portions of the film to which exception is taken, are described in

detail in Annexure-P1 to the petition. We have minutely perused the same.

We are of the view that the petitioners are confusing religion with

„Godmen‟. The allegedly offending portions of the film pertain to a

character in the film of a „Godman‟ and not to any religion. The Guidelines

for Certification of Films for Public Exhibition (Annexure-P2 to the petition)

require the CBFC to ensure that visuals or words in the film are not

contemptuous of racial, religious or other groups and not to „Godmen‟.

There is no challenge to the said Guidelines. It is also not the case of the

petitioners that the visuals or words in the film are contemptuous of any

prominent leader / proponent of any religion for it to be said that affront to

him / her is affront to the said religion.

3. The settled principle in this regard is that the effect of the allegedly

offending words / visuals is to be judged from the standards of reasonable,

strong-minded, firm and courageous men, and not those of weak and

vacillating minds, nor of those who scent danger in every hostile point of

view. We, recently, in Nandini Tewari Vs. Union of India

MANU/DE/2157/2014 while dealing with a Public Interest Litigation

seeking direction, inter alia, to the respondent of deletion of the word

„fanny‟ in the film „Finding Fanny‟ from everywhere it appears in the film

on the ground that it will hurt the feelings of citizens of India, have inter alia

held that if any such restrictions were imposed the same could affect the

constitutional right of the film maker and our society is a very mature

society and the petitioners therein should not be so sensitive about such a

thing. The Supreme Court in K.A. Abbas Vs. Union of India (1970) 2 SCC

780 held that the standards that we set for our censors must make a

substantial allowance in favour of freedom thus leaving a vast area for

creative art to interpret life and society with some of its follies along with

what is good; we must not look upon such human relationships as banned in

toto and forever from human thought and must give scope for talent to put

them before society; the requirements of art and literature include within

themselves a comprehensive view of social life and not only in its ideal form

and line is to be drawn where the average moral man begins to feel

embarrassed or disgusted at a naked portrayal of life without the redeeming

touch of art or genius or social value. Similarly in Bobby Art International

Vs. Om Pal Singh Hoon (1996) 4 SCC 1, the Supreme Court held that a

film that illustrates consequences of a social evil necessarily must show that

social evil.

4. We may record that the senior counsel for the petitioners himself

prefaced his arguments by stating that we should not allow our minds to be

coloured by the plethora of recent incidents of such „Godmen‟ being

involved in all kinds of not only illegal but immoral activities. Once the

counsel himself admits that such „Godmen‟ as are depicted in the subject

film exist in today‟s society, we are of the view that a film that carries the

message that the social evil is evil cannot be made impermissible on the

ground that it depicts the social evil. Only if the film extols the social evils

or encourage it, the same can be held to be not entitled to certification for

public viewing. That is not the case here.

5. There is another aspect of the matter. The Supreme Court in Raj

Kapoor Vs. State (1980) 1 SCC 43 held that a certificate by a high powered

Board of Censors with specialised composition and statutory mandate is not

a piece of utter inconsequence; it is relevant material, important in its

impact, though not infallible in its verdict; though the Courts are not barred

from trying the case because the certificate is not conclusive but the same is

to be not brushed aside. It was held that an act of recognition of moral

worthiness by a statutory agency is not opinion evidence but an instance or

transaction where the fact in issue has been asserted, recognised or affirmed.

6. Though the senior counsel for the petitioners, while drawing attention

to the news reports of investigation against the Censor Board Chief

including for having certified the subject film, for consideration, has argued

that the certification thus has to be held to be not bona fide but not only is

there no basis for the said news item but also there is nothing to show that

the consideration even if paid for obtaining the certification was to get over

the objection as is raised in this petition or any other objection, of the subject

film violating any other guideline for film certification.

7. A film is a work of fiction and is exhibited for commercial purposes.

Most films contain a warning / disclaimer that "none of the characters

therein is based on any living or dead person and the resemblance if any is

unintentional". It is not the case of the petitioners that it is not so in the

subject film. Dissenters of speech and expression have no censorial right in

respect of the intellectual, moral, religious, dogmatic or other choices of all

mankind and the Constitution of India does not confer or tolerate such

individualized, hyper-sensitive private censorial intrusion into and regulation

of the guaranteed freedom of others.

8. The Constitution protects the right of the artist to portray social reality

in all its forms. Some of that portrayal may take the form of questioning

values and mores that are prevalent in society. The Supreme Court in S.

Rangarajan Vs. P. Jagjivan Ram 1989 (2) SCC 574 has held that films are

the legitimate and important medium for the treatment of issues of general

concern and it is open to a producer to project his own message even if it is

not approached of by others and that the State cannot prevent open

discussion and open expression, however, hateful it may be to its policies.

9. The senior counsel for the petitioners has cited para 10 of Raj Kapoor

Vs. Laxman (1980) 2 SCC 175 and paras 10 & 21 of S. Rangarajan (supra).

While the former is on the need for stamping out corruption in Board of

Censors and the criteria to be followed while censoring, the latter, taking

note of the huge impact of the medium of films also lays down the standards

to be applied by Censor Board while judging a film.

10. We have however, applying the same standards and criteria to the

excerpts of the film to which objection is taken by the petitioners, not found

any error in the decision of the Censor Board of granting certificate for

public viewing to the subject film. As far as the need for stamping out

corruption is concerned, there can be no two opinions. However as per

petitioners themselves, action has been initiated.

11. The senior counsel at the fag end states that the petition also seeks

general directions for future, as contained in prayer paragraphs (iii) & (iv)

(supra).

12. As far as relief (iii) (supra) claimed in the petition is concerned, we

find the same to be covered by the Guidelines (supra) and there is thus no

need to issue any such direction.

13. The relief (iv) (supra) claimed in the petition is pressed clearly in

ignorance of the provisions of the Cinematograph Act, 1952, under Section 3

of which the Board of Film Certification is constituted. Section 5C of the

said Act provides for appeals against the order of the Board to the Appellate

Tribunal constituted vide Section 5D of the Act. Though the language of

Section 5C suggests that the appeal thereunder can be preferred only by a

person who had applied for a certificate in respect of a film but the

possibility of the same being interpreted to include others as well cannot be

ruled out. However we are not venturing into the said aspect. Suffice it to

state that such a direction cannot be given. The Supreme Court in The

Secretary Sh. A.P.D. Jain Pathshala Vs. Shivaji Bhagwat More (2011) 13

SCC 99 was seized of the question whether the High Court can direct the

State Government to create a quasi judicial forum and whether the High

Court could by a judicial order exclude the jurisdiction of Civil Courts to

entertain any suit. It was held that neither the constitution nor any statute

empowers a High Court to create or constitute a quasi judicial Tribunal for

adjudicating disputes and the High Court neither has any legislative powers

nor can it direct the Executive to create or constitute quasi judicial Tribunals

otherwise than by legislative statute. It was yet further held that in the

absence of any bar, the Civil Courts have the jurisdiction to try all suits of a

civil nature and the High Court cannot issue a direction that Civil Court shall

not entertain any suit in regard to any particular type of dispute nor create

exclusive jurisdiction in another forum. We may notice that it is always

open to a person aggrieved from certification by the CBFC, to approach

either the Civil Court or even the High Court as has been done in the present

case and the relief claimed for constituting an appellate forum is

misconceived.

14. The matter may be looked at from another angle. Appeal is a creature

of the statute and if there is no provision in the statute providing for an

appeal, the Court cannot create one. We find an interesting discussion on

this aspect in a judgment of the High Court of Allahabad in Committee of

Management, Tagore Uchchattar Madhyamic Vidyalaya Vs. District

Inspector of Schools MANU/UP/0726/1997.

15. We accordingly do not find any merit in the petition and dismiss the

same.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE NOVEMBER 19, 2014 gsr