Prem Mardi vs Union Of India & Ors
2015 Latest Caselaw 6997 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 16th September, 2015

+                        W.P.(C) No.8883/2015
       PREM MARDI                                          ..... Petitioner
                         Through: Mr. Ashok Agrawal with Mr. Anuj
                                    Kapoor and Ms. Namita Wali, Advs.
                                    With petitioner in person
                                 versus
       UNION OF INDIA & ORS                               ..... Respondents
                    Through:          Mr. Sanjay Jain, ASG with Mr.
                                      Jasmeet Singh, CGSC, Ms. Astha
                                      Sharma, Ms. Shreya Sinha, Mr. Akash
                                      Nagar & Ms. Pallavi Shali, Advs. for
                                      UOI.
                                      Ms. Jyoti Taneja, Adv. for GNCTD.
                                      Mr. Pradeep Kumar Arya, Mr.
                                      Narinder Chaudhary, Mr. Bhaskar
                                      Bhardwaj, Mr. Pankaj Singh and Mr.
                                      Raj Karan Sharma, Advs. for R-5.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. In these days of challenge to the bans imposed by the Governmental and

Municipal Agencies on various aspects of life being brought before the Courts

by the Advocates community, the petitioner, belonging to the same community,

has brought this writ petition under Article 226 of the Constitution of India

seeking a ban on the screening of the film "MSG-2- The Messenger", by

seeking the reliefs of (i) quashing of the Certificate issued by the respondent

no.3 Central Board of Film Certification (CBFC) to the said film; (ii) by

seeking a direction to the respondent no.2 Ministry of Home Affairs,

Government of India (GOI) to issue appropriate orders to „YouTube‟ to take

down the trailer of the said film from its website; (iii) by seeking a direction to

the respondent no.1 Ministry of Information and Broadcasting, GOI to issue

appropriate orders to cable and television networks proscribing them from

broadcasting the said film or its trailer; and, (iv) by restraining the respondent

no.5 Hakikat Entertainment Pvt. Ltd. stated to be the producer of the said film

from circulating, distributing, exhibiting, sharing the said film or its trailer in

any manner whatsoever.

2. On the plea of the petitioner that the said film is due for release for public

viewing day after tomorrow i.e. 18th September, 2015 and that unless interim

orders as sought of restraining the same are issued, the writ petition would

become infructuous, the counsel for the petitioner and the learned Additional

Solicitor General (ASG) appearing for the respondents no.1 to 3 and 6 i.e.

Union of India and CBFC on advance notice have been heard at length.

3. It is the case in the petition:

A. that the petitioner belongs to the Santhal Scheduled Tribe of

Jharkhand;

B. that the official trailer of the subject film 2.5 minutes long,

uploaded on 27th August, 2015 on „YouTube‟ discloses the

protagonist of the said film to be " fighting against the

wild & primitive lifestyle of tribals and succeeding in turning them

into civilized human beings";

C. that the official trailer begins by stating that the film is based on

true events and refers to „Adivasis' as having been declared

terrorists by the Government and further states that Adivasis are

neither humans nor animals but "Shaitaans" who have to be

converted into "Insaans";

D. in the trailer, the protagonist Saint Gurmeet Ram Rahim Singh

Ji Insan is shown as a masiha who has undertaken the task of

civilizing the Adivasis by using violence against the Adivasis;

E. that the trailer of the subject film is also being repeatedly shown

on television on various channels as a promotion / advertisement;

F. that the subject film has been granted "U/A" certification by the

respondent no.3 CBFC; and,

G. that the grant of certificate to the subject film is bad in law.

4. The counsel for the petitioner has drawn attention to the Guidelines for

Certification of Films for Public Exhibition issued on 6th December, 1991 by

the GOI in exercise of powers conferred by Section 5B(2) of the

Cinematograph Act, 1952 inter alia requiring the respondent no.3 CBFC to

ensure that:

(a) pointless or avoidable scenes of violence, cruelty and horror,

scenes of violence primarily intended to provide entertainment and

such scenes as may have the effect of de-sensitising or de-

humanising people are not shown;

(b) human sensibilities are not offended by vulgarity, obscenity or

depravity;

(c) such dual meaning words as obviously cater to baser instincts are

not allowed; and,

(d) visuals or words contemptuous of racial, religious or other groups

are not presented and visuals or words which promote communal,

obscurantist, anti-scientific and anti-national attitude are not

presented.

Attention is next invited to Section 3(x) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 making, insulting or

intimidating with intent to humiliate a member of a Scheduled Caste or a

Scheduled Tribe in any place within public view, an offence punishable with

imprisonment for a term which shall not be less than six months. It is further

argued that the insult and defamation of the Scheduled Tribes in the subject

trailer is an offence under several provisions of the Indian Penal Code (IPC),

1860 as well. It is argued that the film, as appears from the trailer, incites the

public at large to behave violently with the Adivasis who are described as

Shaaitans.

5. Having not had an occasion to see the trailer, though CD thereof is

annexed to the petition, the same was seen on „YouTube‟ on the Smart

Phone of the counsel for the petitioner. The script of the said trailer, as filed

by the petitioner with the petition itself, is as under:-

"Jo dusre ki jaan bachane ke liye apni jaan daav par lagata hai wo hai sant gurmeet ram rahim singh ji insaan.

Adfsads Yeh jo hamare saath lagte jungle mein aadivasi rehte hai, un sabhi ko sarkar ne aatankvadi ghoshit kar diya (0:38

- 0:44) Main wo ajgar hun jo apne shikar ko apni phoomkar se kheenchkar bina chabaye nigal jaata hun Arey oo dekhna kahin aam ke bhule ke mom no nikal jana pata nahi chalega kitna phata hai aur kitna baaki reh gaya Aapne ek bahot badi galti kardi aadivasiyon ke ilake mein aakar; na to yeh log inssan hai or na hi janwar; yeh shaitaan hai shaitaan (01:07 - 01:17) Arey yeh shaitaano ko insaan banana ke liye hi hum aayein hai or isse ke liye hamari puri zindagi bhi hai (01:18 - 01:26) Msg the messanger * 2 country ke liye, society ke liye kardo change jo ho teacher Msg the messanger * 2 Haath agar aise rehta to gundo aur raakshako ko bhakt bana deta hai, aur agar haat aise ho jaata hai to rakshak bhi trahimaam trahimaam kar uthte hai Naa hindu bura hai, na hi sikh isaai musalman bura hai, burai pe utar aae wo insaan bura Msg msg is back * 2

Pure samaj mein pata nahi kitne insaan rakshak banker ghoom rahe hai; haemin jaana hoga, unhe banana insaan (02:31 - 02:40)"

6. The learned ASG appearing on advance notice has contended that:

(i) that the trailer of the film was released on „YouTube‟ on 17th

August, 2015 and not on 27th August, 2015 and the petitioner

has chosen to file this petition just a day before the slated

release of the film and the petitioner is disentitled from any

relief on this ground alone;

(ii) the learned ASG has drawn attention to Guideline 3 of the

Guidelines aforesaid which requires the CBFC to ensure that

the film is judged in its entirety from the point of view of its

overall impact and is examined in the light of the period

depicted in the film and the contemporary standards of the

country and the people to which the film relates and has

contended that a reading of the entire script of the trailer does

not make out a case of the certification of the film being in

violation of the Guidelines highlighted by the counsel for the

petitioner or disclose an offence under the IPC or under the SC

/ ST Act supra;

(iii) the learned ASG has also invited attention to para 26 of S.

Rangarajan Vs. P. Jagjivan Ram (1989) 2 SCC 574, Para 25

of Bobby Art International Vs Om Pal Singh Hoon (1996) 4

SCC 1, paras 7 to 9 of Ajay Gautam Vs. Union of India 2015

(147) DRJ 514 (DB) to contend, a) that allegedly offending

words / visuals are to be judged from the standards of

reasonable, strong minded, firm and courageous men, and not

those of weak and vacillating minds nor all those who scent

danger in every hostile point of view; b) that the standards of

censorship must make a sensitive allowance in favour of

freedom, those living thus leaving a vast area for creative art to

interpret life and society with some of its foibles along with

what is good; c) that a film that illustrates consequences of a

social evil necessarily must show that social evil; d) that a film

is to be judged in its entirety from the point of view of its

overall impact; and, e) that the Constitution protects the right of

the artists to portray social reality in all its forms and some of

that portrayal may take the form of questioning the values and

most that are prevalent in the society;

(iv) that the film has been appropriately granted U/A certification.

7. The counsel for the petitioner in rejoinder has invited attention to para

10 of S. Rangarajan (supra) to contend that movies motivate thought and

action and assure a high degree of attention and retention and has argued

that the subject movie showing the „adivasis‟ in bad light and further

showing the protagonist of the film as taming the „adivasis‟ has the tendency

to incite the public at large to indulge in similar action. Attention is further

invited to the judgment dated 19th November, 2014 of the Division Bench of

this Court in W.P.(C) No.7969/2014 titled Dharmaprachar Sabha Vs.

Union of India where the disclaimer generally found in most works of

fiction, of none of the characters therein being based on any living or dead

person and the resemblance if any being unintentional, was noticed and it is

contended that on the contrary the subject film is described as based on true

events. It is further contended that merely because CBFC is an expert broad

based body does not mean that its certification is infallible. It is argued that

this Court should grant an interim stay of the release of the film and decide

the matter after directing a special screening of the film to be held. It is yet

further contended that the film is contumacious of a distinct group i.e. the

„adivasis‟ and depicts them as anti-national and which cannot be permitted.

8. I have considered the rival contentions.

9. The entire case of the petitioner is premised on the use in the film of

the word „adivasi‟. The petitioner assumes the adivasis to be meaning tribals

or more particularly the scheduled tribals and thus finds the film de-sensitive

of the tribals and more particularly scheduled tribals and promoting hatred

against the tribals and scheduled tribals.

10. However that is not my understanding of the word adivasi. As per my

understanding, „adivasi‟ connotes aboriginal people and not people falling in

the definition of scheduled castes and scheduled tribes in Articles 341 and

342 of the Constitution of India. However, to verify which of the aforesaid

understandings is correct, I have checked the meaning of „adivasis‟ and find

the same described as „people living in India before the arrival of the Aryans

in the second millennium BC and descendents thereof‟. Adivasi, translated

in English means the earliest inhabitants of the earth. Per contra, Tribes is

understood as a social division in a traditional society consisting of families

or communities linked by social, economic, religious, or blood ties, with a

common culture and dialect, typically having a recognized leader. Just like

Article 341 of the Constitution of India defines scheduled castes as the

castes, races or tribes or parts of or groups within castes, races or tribes

which shall for the purposes of this Constitution be deemed to be scheduled

castes in relation to that State or Union, Article 342 defines Scheduled

Tribes as tribe or tribal community or part of or groups within tribe or tribal

communities which shall for the purposes of the Constitution be deemed to

be scheduled tribes in relation to that State or Union Territory.

11. To be sure, I have also seen the Constitution of India in Hindi and do

not find the word „adivasi‟ being used in Articles 341, 342 and 366 in place

of the word „tribe‟. The word used for the word tribe therein is „janjati‟. It,

even otherwise, as per the dictionary is the Hindi equivalent of tribe.

12. I may thus reinforce that the term „adivasi‟ is not indicative of tribes

or scheduled tribes but is indicative of the earliest inhabitants of any land

whether it be in India or anywhere else in the world. I find the term adivasi

being used for the earliest settlers of the land that is now known as

Bangladesh, Nepal, Srilanka as well. On the same parity of reasoning, the

aborigines of America would also qualify as adivasis.

13. However I have examined the matter also from the point of view of

anyone who may understand the word adviasi as connoting the tribal or the

scheduled tribal population of India.

14. I am unable to find anything in the trailer of the film which in the

opinion of a reasonable person can be said to be inciting the people to

indulge in violence against the tribal people in India. The portrayal of the

people whom the protagonist of the film is shown to be fighting or taming,

are described in the trailer as an evolutionary stage leading to human beings.

The film describes the „adivasis‟ as, neither animals nor humans. Moreover,

the film shows its protagonist as possessing super natural powers who is able

to single-handedly and without any weapon fight a large number of

adversaries and who is not only able to stop large stone boulders thrown at

him but also crush them into small pieces. He is also shown as taking flights

in the air, across a fleet of at least a dozen cars and throwing full grown

elephants in the air and stopping ferocious charging bulls with his hand. The

dialogues in the trailer of the film are sprinkled with reference to human

beings of all religions capable of acting as devils. No person in his right

senses can, on watching of the said trailer of the film, believe as to what is

depicted therein to be a realty or possible in real life. The film is a work of

fiction intended to show its protagonist who in his real life form also

proclaims to be a spiritual leader, in a superhuman form. In fact the counsel

for the petitioner himself admitted that nobody knows how the actual

adivasis live and what are shown in the film as adviasi practices are but a

work of imagination.

15. In my opinion, only such films can be said to be having propensity of

inculcating hatred, ill-will and violence towards a person or group of persons

which show life as is ordinarily understood by the viewers and not a film

which, to the average viewers understanding, is not depicting life but a

fantasy or what is surreal. When the film traverses from the domain of real

to surreal and depicts what none in his / her senses can believe to be possible

and is in the realm of showing the impossible and fantastic, in my view it

cannot be said to be capable of influencing any reasonable mind. The

purport of such film is only to transform the viewer to a dream / fantasy

land, with no illusions whatsoever of the same mixing with reality.

16. As far as the averment of the film showing the protagonist thereof

fighting the life style of the tribals, at least on watching the trailer thereof, it

is not so evident.

17. There is another aspect of the matter. With the vast reach of the

electronic and print media and communication networks in each and every

nook and corner of the country, inhabitants of no part of the country,

howsoever far removed from the cities, can be said to be so naïve as to be

not able to distinguish between real and fantasy. The petition undermines the

average intelligence of Indian citizen and proceeds on the premise of Indian

viewers of film to be of such an intellect and understanding so as to

immediately after watching the film, start imitating the fantasy (and which

they are certainly incapable of) shown in the movie.

18. The subject film from the trailer is found to be depicting a fantasy to

the viewers and has to be understood in the said light only. In fact, in some

scenes in the trailer, the adivasis are shown with two horns and having the

lower body as of an animal and the upper torso of a human being. The

reference in the film to adivasis is not found to be relatable in any manner to

scheduled tribes.

19. There is thus no merit in the petition.

20. Dismissed.

RAJIV SAHAI ENDLAW, J SEPTEMBER 16, 2015 „pp/gsr‟