As noted above, the impugned order is passed in
exercise of the power of the State to impose restrictions on the
fundamental right of freedom of speech and expression
guaranteed to the petitioner. Since the same is a restriction on
the fundamental right guaranteed to the petitioner under Article
19(1) (a) of the Constitution, the same has to be viewed with
suspicion, and the burden is heavy on the authorities to show
that the restrictions are reasonable and permissible under law.
Though the respondents have attempted to support the
impugned decision by supplementing reasons in the counter
affidavit, I do not propose to advert to the said reasons, for, it
is settled that the orders have to stand by the reasons stated
therein itself. The essence of the impugned decision is that the
contents of the film is insulting and humiliating Hindu religion
and that the film contains scenes which are vulgar and
obscene. To demonstrate the stand that the contents of the
film are insulting and humiliating Hindu religion, it is stated in
the impugned order that the Hindu God Hanuman is shown in
the film as coming in the books titled 'I am a Gay'. Likewise, to
demonstrate the vulgarity, it is stated in the impugned order
that the film refers to masturbating women and homosexuality.
There is no other reference in the impugned order with
reference to the specific scenes in the film which violate the
Guidelines. It is relevant to note that the impugned order bans
the exhibition of the film. If the objection concerns only the
depiction of the Hindu God Hanuman in the manner indicated in
the impugned order and the reference to masturbation of
women and homosexuality, there is no need to ban the
exhibition of the film altogether, for, the objectionable scenes
could be deleted or modified. It is thus evident that the basis of
the impugned order is not as disclosed in the impugned order.
Since the decision is that the film is not fit for public exhibition,
it has to be on the basis that the theme of the film offends the
Guidelines. There is no such statement in the impugned order.
Further, mere reference to homosexuality and masturbation of
women may not amount to obscenity or vulgarity. As stated by
the Apex Court, only if the entire theme is disclosed, the
question whether the reference to homosexuality and
masturbation of women would amount to vulgarity or obscenity
can be ascertained. There is nothing in the impugned order as
to the context in which those references have been made in the
film. True, some persons may hold an orthodox or conservative
view in matters like this, but that by itself is not sufficient to
come to the conclusion that the contents of the film are
contemptuous of religious groups. As held by the Apex Court,
the question whether a scene is vulgar or obscene is to be
determined in the context of the work as a whole. When the
respondents take the most extreme step of banning the
exhibition of the film, allegedly made spending approximately
one crore rupees, according to me, an order in the nature of
one impugned is far from satisfactory. In this context, we must
also bear in mind that freedom to think and act differently is an
essential feature of democracy. The said freedom includes
freedom to react and respond to same situations differently and
distinctly. One cannot expect everybody to express themselves
in the same manner. After all, film making is a creative work. If
freedom to express one's ideas is not conceded, there will not
be any creativity at all. Looking at one or two scenes or
expressions in the film, it cannot be said that the film offends
religious sentiments or that it is vulgar and obscene. In the said
view of the matter, according to me, the matter has to be
reconsidered by the Revising Committee, after affording the
petitioner an effective opportunity for hearing.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
27TH DAY OF SEPTEMBER 2016
WP(C).No. 27418 of 2016 (B)
JAYAN CHERIAN,
Vs
UNION OF INDIA,
The petitioner is the producer, director and script
writer of the feature film, "KA bodyscapes". According to the
petitioner, "KA bodyscapes" ('the film') portrays through its
protagonists the attitude of the society towards homosexuality
and feminism. It is stated that the film revolves around the
experiences of three protagonists in the film, Haris, a gay free
spirited painter, his love interest, Vishnu, a Hanuman bakth
from a conservative Hindu right wing family and Sia, a feminist
from a conservative Muslim family. According to the petitioner,
the film touches upon the aggression shown by right wing
activists towards artists and writers and it highlights the
struggles of their friend Sia, who rebels against dehumanising
surveillance at her work place and misogynist punishments
meted out to menstruating women.
2. The petitioner approached the second respondent,
the Regional Officer of the Central Board of Film Certification
('the Board' for short) for certification of the film for public
exhibition under the Cinematograph Act, 1952 ('the Act'). On
receipt of the application, the Board constituted an Examining
Committee as provided for under Rule 22 of the
Cinematograph (Certification) Rules, 1983 ('the Rules'). The
Examining Committee, after viewing the film, recommended to
the Board to refer the film to the Revising Committee, as
provided for under Rule 24 of the Rules. On the basis of the
recommendation made by the Examining Committee, the
Chairman of the Board referred the film to the Revising
Committee at the Regional Office of the Board at Chennai. The
Revising Committee consisting of a member of the Board and
eight others, after viewing the film, recommended to the Board
to refuse certification to the film on the ground that it
contravenes paragraphs 1(a), 1(d), 2(vii), 2(ix), 2(xii), 2(xiii), 3
(i) and 3(ii) of the Guidelines issued by the Central Government
for certification of film for public exhibition ('the Guidelines').
The decision of the Revising committee has been forwarded to
the petitioner as per Ext.P2 communication. The petitioner is
aggrieved by the said decision of the Revising Committee and
hence, this writ petition.
3. A counter affidavit has been filed in this matter
by the respondents supporting the impugned decision.
According to the respondents, the film contains scenes that
promote gay and homosexuality, nudity that contains vital
parts of the male nude body and there are many vulgar scenes
and dialogues throughout the film, which contravenes para 2
(vii) of the Guidelines which provides that films for public
exhibition shall not contain scenes offending human
sensibilities by vulgarity, obscenity or depravity. It is also
stated in the counter affidavit that the film contains scenes
showing menstrual blood and sanitary napkins, posting of
pictures of menstrual blood stains in the sanitary napkins in the
face book etc. that contravenes para 2(ix) of the Guidelines
which provides that films for public exhibition shall not contain
scenes degrading or denigrating women in any manner. It is
also stated in the counter affidavit that the film contains scenes
that are ridiculing, insulting and humiliating Hindu Religion, in
particular, portraying Hindu Gods in poor light with both visuals
and dialogues by throwing off the portrait of Lord Hanuman to
the floor, the Hindu God 'Hanuman' is shown as coming in the
Books titled 'I am a Gay' and other homosexual books that
contravenes Para 2(xii) of the Guidelines which provides that
films for public exhibition shall not contain visuals or words
contemptuous of racial, religious or other groups. In short, the
stand of the respondents is that the film was refused
certification as it contravenes Guidelines in paragraphs 1(a), 1
(d), 2(vii), 2(ix), 2(xii), 2(xiii), 3(i) and 3(ii) of the Guidelines.
4. Heard the learned counsel for the petitioner as
also the learned Central Government Counsel for the
respondents.
5. I am conscious of the fact that the petitioner has
a right of appeal against the impugned decision before the film
certification appellate tribunal, but I propose to decide the
matter on merits since the film is entangled in the dispute since
April 2016 and since an expeditious resolution of the dispute is
warranted, for, films of the instant nature which are addressed
to the contemporary audience would lose its significance and
charm by passage of time.
6. A film is a medium for expressing and
communicating ideas, thoughts, messages, information,
feelings and emotions. The right of a film maker to make and
exhibit his film, is part of his fundamental right of freedom of
speech and expression guaranteed under Article 19(1)(a) of the
Constitution. Section 5B(1) of the Act provides that a film shall
not be certified for public exhibition if, in the opinion of the
authority competent to grant certificate, the film or any part of
it is against the interests of the sovereignty and integrity of
India, the security of the State, friendly relationship with foreign
States, public order, decency or morality or involves defamation
or contempt of court or is likely to incite the commission of any
offence. The restriction contained in Section 5B(1) of the Act is
the restriction introduced in the light of the provisions
contained in Article 19(2) of the Constitution. Section 5B(2)
provides that subject to the provisions contained in Section 5B
(1), the Central Government may issue such directions as it
may think fit setting out the principles which shall guide the
authority competent to grant certificates under the Act in
sanctioning films for public exhibition. It is in exercise of the
power conferred on the Central Government under Section 5B
(2) of the Act that the Guidelines have been formulated by the
Central Government. As far as the present case is concerned,
the petitioner has no case that the Guidelines or any one of
them is unreasonable and offends the provision contained in
Article 19 (2) of the Constitution. As such, since the film is
intended for public exhibition, the same has to be in conformity
with the Guidelines.
7. In the context of obscenity contained in a book
while deciding the issue whether the same can be permitted to
be circulated, the Apex Court in Ranjit D. Udeshi v. The
State of Maharashtra, (AIR 1965 SC 881), held that treating
with sex and nudity in art and literature cannot be regarded as
evidence of obscenity without something more and if the rigid
test, of treating sex as the minimum ingredient, were accepted,
hardly any artist or writer will be able to do his creative work. It
is also held by the Apex Court in the said case that an overall
view of the obscene matter in the setting of the whole work
would be necessary to ascertain whether the matter is
objectionable. It is also held in the said case that while
examining the issue, the interest of the contemporary society,
particularly the influence of books etc., must not be overlooked.
Paragraphs 16, 21 and 22 of the said decision of the Apex Court
read thus :
"16. The important question is whether this test of obscenity
squares with the freedom of speech and expression guaranteed
under our Constitution, or it needs to be modified and, if so, in
what respects. The first of these questions invites the court to
reach a decision on a constitutional issue of a most far reaching
character and we must beware that we may not lean too far
away from the guaranteed freedom. The laying down of the
true test is not rendered any the easier because art has such
varied facets and such individualistic appeals that in the same
object the insensitive sees only obscenity because his attention
is arrested, not by the general or artistic appeal or message
which he cannot comprehend, but by what he can see, and the
intellectual sees beauty and art but nothing gross. The Indian
Penal Code does not define the word 'obscene' and this delicate
task of how to distinguish between that which is artistic and
that which is obscene has to be performed by courts, and in the
last resort by us. The test which we evolve must obviously be
of a general character but it must admit of a just application
from case to case by indicating a line of demarcation not
necessarily sharp but sufficiently distinct to distinguish
between that which is obscene and that which is not. None has
so far attempted a definition of obscenity because the meaning
can be laid bare without attempting a definition by describing
what must be looked for. It may, however, be said at once that
treating with sex and nudity in art and literature cannot be
regarded as evidence of obscenity without something more. It
is not necessary that the angels and saints of Michael Angelo
should be made to wear breeches before they can be viewed. If
the rigid test, of treating with sex as the minimum ingredient,
were accepted hardly any writer of fiction today would excape
the fate Lawrence had in his days. Hald the book-shop would
close and the other half would deal in, nothing but moral and
religious books which Lord Campbell boasted was the effect of
his Act.
21. The Court must, therefore, apply itself to consider each
work at a time. This should not, of course, be done in the spirit
of the lady who charged Dr. Johnson with putting improper
words in his Dictionary and was rebuked by him. "Madam, you
must have been looking for them." To adopt such an attitude
towards Art and Literature would make the Courts a Board of
Censors. An overall view of the obscene matter in the setting of
the whole work would, of course, be necessary, but the
obscene matter must be considered by itself and separately to
find out whether it is so gross and its obscenity so decided that
it is likely to deprave and corrupt those whose minds are open
to influences of this sort and into whose hands the books if
likely to fall. In this connection the interests of our
contemporary society and particularly the influence of the book
etc. on it must not be overlooked. A number of considerations
may here enter which it is not necessary to enumerate, but we
must draw attention to one fact.
22. We may now refer to Roth's case, (1957) 354 US 476 : 11
Law Ed 2nd 1498, to which a reference has been made. Mr.
Justice Brennan, who delivered the majority opinion in that
case observed that if obscenity is to be judged of by the effect
of an isolated passage or two upon particularly susceptible
persons, it might well encompass material legitimately treating
with sex and might become unduly restrictive and so the
offending book must be considered in its entirety. Chief Justice
Warren on the other hand made "Substantial tendency to
corrupt by arousing lustful desires" as the test. Mr. Justice
Harlan regarded as the test that it must "tend to sexually
impure thoughts". In our opinion, the test to adopt in our
country (regard being had to our community 'mores') is that
obscenity without a preponderating social purpose or profit
cannot have the constitutional protection of free speech and
expression and obscenity is treating with sex in a manner
appealing to the carnal side of human nature, or having that
tendency. Such a treating with sex is offensive to modesty and
decency but the extent of such appeal in a particular book etc.,
are matters for consideration in each individual case."
In K.A. Abbas v. Union of India, (1970) 2 SCC 780), the Apex
Court, in the context of Cinematograph Act, following the
decision in Ranjit D. Udeshi, held that it is not the elements of
sexual immorality which should attract the censor's scissors,
but how the theme is handed by the producer. Paragraph 50 of
the decision of the Apex Court in the said case reads thus :
"50. Therefore it is not the elements of rape, leprosy, sexual
immorality which should attract the censor's scissors but how the
theme is handled by the producer. It must, however, be
remembered that the cinematograph is a powerful medium and
its appeal is different. The horrors of war as depicted in the
famous etchings of Goya do not horrify one so much as the same
scenes rendered in colour and with sound and movement, would
do. We may view a documentary on the erotic tableaux from our
ancient temples with equanimity or read the Kamasutra but a
documentary from them as a practical sexual guide would be
abhorrent."
The decision of the Revising Committee, as forwarded to the
petitioner as per Ext.P2 communication, reads thus :
"The Revising Committee felt that the entire content of the
Malayalam feature film 'KA BODY SCAPES' is ridiculing, insulting
and humiliating Hindu Religion, in particular portraying Hindu Gods
in poor light. Derogatory words are used against women. The
Hindu God 'Hanuman' is shown as coming in the Books titled 'I am
a Gay' and other Homo-sexual books. The film has also references
to lady masturbating, highlighting 'Gay' by many 'Gay' posters.
The film offends human sensibilities by vulgarity, obscenity or
depravity. As the film violates guidelines 1(a), 1(d), 2(vii), 2(ix), 2
(xii), 2(xiii), 3(i) and 3(ii), therefore, the Certificate is 'Refused'."
Paragraphs 1(a), 1(d), 2(vii), 2(ix), 2(xii), 2(xiii), 3(i) and 3(ii) of
the Guidelines, which are relevant in the context, read thus :
"1. The objectives of film certification will be to ensure that--
(a) the medium of film remains responsible and sensitive to the
values and standards of society; x x x x
(d) The medium of film provides clean and healthy
entertainments; x x x x
2. In pursuance of the above objectives, the Board of Film
Certification shall ensure that --
(vii) human sensibilities are not offended by vulgarity, obscenity or
depravity; x x x x
(ix) scenes degrading or denigrating women in any manner are
not presented; x x x x
(xii) visuals or words contemptuous of racial, religious or other
groups are not presented; x x x x
(xiii) visuals or words which promote communal, obscurantist,
anti-scientific and anti-national attitudes are not presented;
x x x x
(3) The Board of Film Certification shall also ensure that the film--
(i) is judged in its entirety from the point of view of its overall
impacts; and
(ii) 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, provided that the film does not deprave the
morality of the audience."
The correctness of the impugned decision has to be examined
in the light of the principles and guidelines referred to above.
8. As noted above, the impugned order is passed in
exercise of the power of the State to impose restrictions on the
fundamental right of freedom of speech and expression
guaranteed to the petitioner. Since the same is a restriction on
the fundamental right guaranteed to the petitioner under Article
19(1) (a) of the Constitution, the same has to be viewed with
suspicion, and the burden is heavy on the authorities to show
that the restrictions are reasonable and permissible under law.
Though the respondents have attempted to support the
impugned decision by supplementing reasons in the counter
affidavit, I do not propose to advert to the said reasons, for, it
is settled that the orders have to stand by the reasons stated
therein itself. The essence of the impugned decision is that the
contents of the film is insulting and humiliating Hindu religion
and that the film contains scenes which are vulgar and
obscene. To demonstrate the stand that the contents of the
film are insulting and humiliating Hindu religion, it is stated in
the impugned order that the Hindu God Hanuman is shown in
the film as coming in the books titled 'I am a Gay'. Likewise, to
demonstrate the vulgarity, it is stated in the impugned order
that the film refers to masturbating women and homosexuality.
There is no other reference in the impugned order with
reference to the specific scenes in the film which violate the
Guidelines. It is relevant to note that the impugned order bans
the exhibition of the film. If the objection concerns only the
depiction of the Hindu God Hanuman in the manner indicated in
the impugned order and the reference to masturbation of
women and homosexuality, there is no need to ban the
exhibition of the film altogether, for, the objectionable scenes
could be deleted or modified. It is thus evident that the basis of
the impugned order is not as disclosed in the impugned order.
Since the decision is that the film is not fit for public exhibition,
it has to be on the basis that the theme of the film offends the
Guidelines. There is no such statement in the impugned order.
Further, mere reference to homosexuality and masturbation of
women may not amount to obscenity or vulgarity. As stated by
the Apex Court, only if the entire theme is disclosed, the
question whether the reference to homosexuality and
masturbation of women would amount to vulgarity or obscenity
can be ascertained. There is nothing in the impugned order as
to the context in which those references have been made in the
film. True, some persons may hold an orthodox or conservative
view in matters like this, but that by itself is not sufficient to
come to the conclusion that the contents of the film are
contemptuous of religious groups. As held by the Apex Court,
the question whether a scene is vulgar or obscene is to be
determined in the context of the work as a whole. When the
respondents take the most extreme step of banning the
exhibition of the film, allegedly made spending approximately
one crore rupees, according to me, an order in the nature of
one impugned is far from satisfactory. In this context, we must
also bear in mind that freedom to think and act differently is an
essential feature of democracy. The said freedom includes
freedom to react and respond to same situations differently and
distinctly. One cannot expect everybody to express themselves
in the same manner. After all, film making is a creative work. If
freedom to express one's ideas is not conceded, there will not
be any creativity at all. Looking at one or two scenes or
expressions in the film, it cannot be said that the film offends
religious sentiments or that it is vulgar and obscene. In the said
view of the matter, according to me, the matter has to be
reconsidered by the Revising Committee, after affording the
petitioner an effective opportunity for hearing.
In the result, the writ petition is allowed, the
impugned order is set aside and the Revising Committee of the
Board is directed to give notice to the petitioner indicating
clearly the reason for banning the exhibition of the film
altogether with specific reference to the theme of the film and
the relevant guidelines. Thereafter, the petitioner should be
heard on the reasons disclosed to him. The suggestion, if any,
of the petitioner to delete the objectionable scenes, modify the
theme etc., wherever necessary, conforming to the Guidelines,
shall also be considered by the Revising Committee. If the
Revising Committee maintains that the film is not suitable for
public exhibition even with the modifications/suggestions, if
any, made by the petitioner, an order has to be passed stating
the objections as to the theme with reference to the scenes in
the film and the Guidelines. The order should also disclose the
suggestions/modifications made by the petitioner and the
reasons for not accepting the same. The above direction shall
be complied with, within one month from the date of receipt of
a copy of this judgment.
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