No 491 of 1969
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights
RK Garg D P Singh section C Agrawala R K Jain V J Francis and section Chakravarti for the petitioner
Niren De Attorney General Jagadish Swarup Solicitor General J M Mukhi R N Sachthey and B D Sharma for the respondents
The Judgment of the Court was delivered by Hidayatulla CJ
This petition seeks a declaration against the Union of India and the Chairman Central Board of Film Censors that the provisions of of the together with the rules prescribed by the Central Government February 6 1960 in the purported exercise of its powers under section 5 B of the Act are unconstitutional and void
As a consequence the petitioner asks for a writ of mandamus Or any other appropriate writ direction or order quashing the direction contained in a letter Annexure X dated July 3 1969 for deletion of certain shots from a documentary film entitled A Tale of Four Cities  produced by him for unrestricted public exhibition
449 The petitioner is a journalist playwright and writer of short stories
He is also a producer and director of cinematograph films
He was a member of the Enquiry Committee on Film Censorship 1968 and is a member of the Children s Film Committee
He has produced andor directed many films some of which have been well received here and abroad and even won awards and prizes
The petitioner produced in 1968 a documentary film in 2 reels running time 16 minutes called a Tale of Four Cities
In this film he purported to contrast the luxurious life of the rich in the four cities of calcutta Bombay Madras and Delhi with the squalor and poverty of the poor particularly those whose hands and labour help to build beautiful cities factories and other industrial complexes
The film is in black and white and is silent except for a song which the labourers sing while doing work and some background music and sounds for stage effect
The film in motion sequences or still shots shows contrasting scenes of palatial buildings hotels and factories evidence of the prosperity of a few and shanties huts and slums evidence of poverty of the masses
These scenes alternate and in between are other scenes showing sweating labourers working to build the former and those showing the squalid private life of these labourers
Some shots mix people riding in lush motor cars with rickshaw and handcart pullers of Calcutta and Madras
In one scene a fat and prosperous customer is shown riding a rickshaw which a decrepit man pulls sweating and panting hard
In a contrasting scene the same rickshaw puller is shown sitting in the rickshaw pulled by his former customer
This scene is the epitomisation of the theme of the film and on view are the statutes of the leaders of Indian Freedom Movement looking impotently from their high pedestals in front of palatial buildings on the poverty of the masses
On the bouleverds the rich drive past in limousines while the poor pull rickshaws or handcarts or stumble along
There is included also a scanning shot of a very short duration much blurred by the movement of the photographer s camera in which the red light district of Bombay is shown with the inmates of the brothels waiting at the doors or windows
Some of them wear abbreviated skirts showing bare legs up to the knees and sometimes a short way above them
This scene was perhaps shot from a moving car because the picture is unsteady on the screen and under exposed
Sometimes the inmates becoming aware of the photographer quickly withdraw themselves
The whole scene barely lasts a minute
Then we see one of the inmates shutting a window and afterwards we see the hands of a woman holding some currency notes and a male hand plucking away most of them leaving only a very few in the hands of the female
The two actors are not shown
450 The suggestion in the first
scene is that a customer is being entertained behind closed shutters and in the next sequence that the amount received is being shared between the pimp and the prostitute the former taking almost the whole of the money
The sequence continues and for the first time the woman who shut the window is again seen
She sits at the dressing table combs her hair glances at two love birds in a cage and looks around the room as if it were a cage
Then she goes behind a screen and emerges in other clothes and prepares for bed
She sleeps and dreams of her life before she took the present path
The film then passes on to its previous theme of contrasts mentioned above often repeating the earlier shots in juxtaposition as stills
There is nothing else in the film to be noticed either by us or by the public for which it is intended
The petitioner applied to the Board of Film Censors for a U  certificate for unrestricted exhibition of the film
He received A letter December 30 1969 by which the Regional Officer informed him that the Examining Committee and the Board had provisionally come to the conclusion that the film was not suitable for unrestricted public exhibition but was suitable for exhibition restricted to adults
He was given a chance to make representations against the tentative decision within 14 days
Later he was informed that the Revising Committee had reached the same conclusion
He represented by letter February 18 1969 explaining the purpose of the films as exposing the exploitation of man or woman by man  and the contrast between the very rich few and the very poor masses
He claimed that there was no obscenity in the film
He was informed by a letter February 26 1969 that the Board did not see any reason to alter its decision and the petitioner could  appeal within 30 days to the Central Government
The petitioner appealed the very next day
On July 3 1969 the Central Government decided to give a U  certificate provided the following cuts were made in the film Shorten the scene of woman in the red light district deleting specially the shot showing the closing of the window by the lady the suggestive shots of bare knees and the passing of the currency notes
 Dir ICiiibc IV
The mystery of the code numbers at the end was explained by a letter on July 23 1969 to mean this  1
It is not desirable that a film shall be certified as suitable for public exhibition either unrestricted or restricted to adults which 45 1 Ciii b deals with the relations between the sexes in such a manner as to depict immoral traffic in women and soliciting prostitution or procuration
IVIt is undesirable that a certificate for unrestricted public exhibition shall be granted in respect of a film depicting a story or containing incidents unsuitable for young persons
 The petitioner then filed this petition claiming that his fundamental right of free speech and expression was denied by the order of the Central Government
He claimed a U  certificate for the film as of right
Before the hearing commenced the film was specially screened for us
The lawyers of both sides including the Attorney General and the petitioner were also present
The case was then set down for hearing
The Solicitor General who had not viewed the film appeared at the hearing
We found it difficult to question him about the film and at our suggestion the Attorney General appeared but stated that Government had decided to grant a U  certificate to the film without the cuts previously ordered
The petitioner then asked to be allowed to amend the petition so as to be able to challenge pre censorship itself as offensive to freedom of speech and expression and alternatively the provisions of the Act and the rules orders and directions under the Act as vague arbitrary and indefinite
We allowed the application for amendment for the petitioner was right in contending that a person who invests his capital in promoting or producing a film must have clear guidance in advance in the matter of censorship of films even if the law of pre censorship be not violative of the fundamental right
When the matter came up for hearing the petitioner raised four points  a that pre censorship itself cannot be tolerated under the freedom of speech and expression b that even if it were a legitimate restraint on the freedom it must be exercised on very definite principles which leave no room for arbitrary action c that there must be a reasonable time limit fixed for the decision of the autho rities censoring the film and d that the appeal should lie to a court or to an independent tribunal and not the Central Government
The Solicitor General conceded c and d and stated that Government would set on foot legislation to effectuate them at them earliest possible opportunity
Since the petitioner felt satisfied with this assurance we did not go into the matter
But we must place on record that the respondents exhibited charts showing the time taken in the censorship of films during the last one year or so and
45 2 we were satisfied that except in very rare cases the time taken could not be said to be unreasonable
We express our satisfaction that the Central Government will cease to perform curial functions through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression
Experts sitting as a Tribunal and deciding matters quasi judicially inspire more confidence than a Secretary and therefore it is better that the appeal should lie to a court or tribunal
This brings us to the remaining two questions
We take up first for consideration  whether pre censorship by itself offends the freedom of speech and expression
Article 191a and 2 of the Constitution contain the guarantee of the night and the restraints that may be put upon that right by a law to be made by Parliament
They may be read here 19
Protection of certain rights regarding freedom of speech etc
1 All citizens shall have the right a to freedom of speech and expression 2Nothing in sub clause a of clause 1 shall affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India the security of the State friendly relations with foreign States public order decency or morality or in relation to contempt of court defamation or incitement to an offence
 The argument is that the freedom is absolute and precensorship is not permissible under the Constitution
It is submitted that precensorship is inconsistent with the right guaranteed
Now it is clear that some restraint is contemplated by the second clause and in the matter of censorship only two ways are open to Parliament to impose restrictions
One is to Jay down in advance the standards for the observance of film producers and then to test each film produced against those standards by a perview of the film
The other is to let the producer observe those standards and make the infraction an offence and punish a Producer who does not keep within the standards
The petitioner claims that the former offends 453 the guaranteed freedom but reluctantly concedes the latter and relies upon the minority view expressed in the United States Supreme Court from time to time
The petitioner reinforces this argument by contending that there are other forms of speech and expression besides the films and none of them is subject to any prior restraint in the form of precensorship and claims equality of treatment with such other forms
He claims that there is no justification for a differential treatment
He contends next that even the standards laid down are unconstitutional for many reasons which we shall state in proper place
This is the first case in which the censorship of films in general and precensorship in particular have been challenged in this Court  and before we say anything about the arguments it is necessary to set down a few facts relating to censorship of films and how it works in India
The Government of India appointed a Committee on March 28 1968 to enquire into the working of the existing procedures for certification of cinematograph films for public exhibition in India and allied matters under the Chairmanship of Mr G D Khosla former Chief Justice of the Punjab High Court
The report of the Committee has since been published and contains a valuable summary of the law of censorship not only in India but also in foreign countries
It is hardly helpful to the determination of this case to go into this history but it may be mentioned here that it is the opinion of experts on the subject that Indian film censorship since our independence has become one of strictest in the world See Film Censors and the Law by Neville March Hunilings p 227 and Filmrecht ein Handbuch of Berthold and von Hartleib1957p215 quoted by Hunnings
ln 1966
Raj Bahadur who succeeded Mrs Indira Gandhi as Minister for Information and Broadcasting said that Government would continue a liberal censorship  and was considering certain expert opinion on the subject
He also suggested to the film industry that it should formulate a code which would be the best from all standards so that Government may be guided by it in formulating directives to the censors  See Journal of Film Industry February 25 1966 also quoted by Hunnings at page 18 of his book
This suggestion came to nothing for obvious reasons
Film industry in India is not even oligopolistic in character and it is useless to expect it to classify films according to their suitability as is done in the United States by the motion picture Association of AmericaMPAA founded in October 1968
There the film industry is controlled by eight major producers and private control of film making is possible with the assistance of the National Association of Theatre Owners and Film Importers and Distributors of America
Having no such organisation for private censorship or even a private body like the British Board of Film Censors in England the task must be done by Government if censorship is at all to be imposed
Films began  to be 436 Sup Cl71 exhibited in India at the turn of the last century and film censorship took birth in 1918 when the 2 of 1918 was passed
Two matters alone were then dealt with  a the licensing of cinema houses and b the certifying of film for public exhibition
The censors had a wide discretion and no standards for their action were indicated
Boards of Film Censors came into existence in the three Presidency towns and Rangoon
The Bombay Board drew up some institutions for Inspectors of Films and it copied the 43 rules formulated by T P O Connor in
England
These are more or less continued even today
We do not wish to trace here the history of the development of film censorship in India
That task has been admirably performed by the Khosla Committee
Legislation in the shape of amendments of the Act of 1918 and a Production Code were the highlights of the progress
In 1952 a fresh consolidating Act was passed and it is Act 37 of 1952 amended in 1959 by Act 3 of 1959 and that is the present statutory provision on the subject
It established a Board of Film Censors and provided for Advisory Panels at Regional Centres
Every person desiring to exhibit any film has to apply for a certificate and the Board after examining the film or having the film examined deals with it by asanctioning the film for unrestricted public exhibition bsanctioning the film for public exhibition restricted to adults cdirecting such excisions and modifications as it thinks fit before sanctioning the film for unrestricted public exhibition or for public exhibition restricted to adults as the case may be or d refusing to sanction the film for public exhibition
The film producer is allowed to represent his views before action under b c and d is taken
The sanction under a is by granting a U  certificate and under b by an A  certificate and the certificates are valid for ten years
The Act then lays down the principles for guidance and for appeals in sections 5B and _5C respectively
These sections may be
read here 5B principles for guidance in certifying films
1A film shall not be certified for public exhibition if in the opinion of the authority competent to grant the certificate the film or any part of it is against the interests of the security of the State friendly relations with foreign 455 States public order decency or morality or involves defamation or contempt of court or is likely to incite the commission of any offence
2Subject to the provisions contained in Sub section 1 the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition 5C Appeals
Any person applying for a certificate in respect of a film who is aggrieved by any order of the Board a refusing to grant a certificate or b granting only an A certificate or c directing the applicant to carry out any excisions or modifications may within thirty days from the date of such order appeal to the Central Government and the Central Government may after such inquiry into the matter as it considers necessary and after giving the appellant an opportunity for representing his views in the matter make such order in relation thereto as it thinks fit By section 6 the Central Government has reserved a general revising power which may be exercised during the pendency of a film before the Board and even after it is certified
Under the latter part of this power the Central Government may cancel a certificate already granted or change the U  certificate into an A  certificate or may suspend for 2 months the exhibition of any film
The above is the general scheme of the legislation on the subject omitting allied matters in which we are not interested in this case
It will be noticed that section 5B1 really reproduces clause 2 of article 19 as it was before its amendment by the First Amendment
This fact has led to an argument which we shall notice presently
The second sub section of section 5B enables the Central Government to state the principles to guide the censoring authority by issuing directions
In furtherance of this power the Central Government has given directions to the Board of Film Censors
They are divided into General Principles three in number followed by directions for their application in what are called ruled 
The part dealing with the application of the principles is divided into four sections and each section contains matters which may not be the subject of portrayal in films
We may quote the General Principles here 1
No picture shall be certified for public exhibition which will lower the moral standards of those who see it
45 6 Hence the sympathy of the audience shall not be thrownon the side of crime wrong doing evil or sin
2Standards of life having regard to the standards of thecountry and the people to which the story relatesshall not be so portrayed as to deprave the morality of the audience
3The prevailing laws shall not be so ridiculed as to create sympathy for violation of such laws
 The application of the General Principles is indicated in the four sections of the rules that follow so that a uniform standard may be applied by the different regional panels and Boards
The first section deals with films which are considered unsuitable for public exhibition
This section is divided into clauses A to F Clause A deals with the delineation of crime B with that of vice or immorality C with that of relations between sexes D with the exhibition of human form E with the bringing into contempt of armed forces or the public authorities entrusted with the administration of law and order and F with the protection of the susceptibilities of foreign nations and religious communities with fomenting social unrest or discontent to such an extent as to incite people to crime and promoting disorder violence a breach of the law or disaffection or resistance to Government
Clauses E and F are further explained by stating what is un suitable and what is objectionable in relation to the topics under those clauses
Section 11 then enumerates subjects which may be objectionable in a context in which either they amount to indecency immorality illegality or incitement to commit a breach of the law
Section III then provides It is not proposed that certification of a film should be refused altogether or that it should be certified as suitable for adult audiences only where the deletion of a part or parts will render it suitable for unrestricted public exhibition or for exhibition restricted to adults and such deletion is made unless the film is such as to deprave the majority of the audience and even excisions will not cure the defects Section IV deals with the protection of young persons and enjoins refusal of a certificate for unrestricted public exhibition in respect of a film depicting a story or containing incidents unsuitable for young persons Emphasis in this connection is laid in particular upon 457 ianything which may strike terror in a young person eg scenes depicting ghosts brutality mutilations torture cruelty etc iianything tending to disrupt domestic harmony or the confidence of a child in its parents eg
scenes depicting parents quarrelling violently or one of them striking the other or one or both of them behaving immorally iiianything tending to make a person of tender years insensitive to cruelty to others or to animals
 In dealing with crime under section I clause A the glorification or extenuation of crime depicting the modus operandi of criminals enlisting admiration or sympathy for smiminals holding up to contempt the forces of law against crime etc are indicated as making the film unsuitable for exhibition
In Clause B similar directions are given with regard to vice and immoral acts and vicious and immoral persons
In Clause C the unsuitability arises from lowering the sacredness of the institution of marriage and depicting rape seduction and criminal assaults on women immoral traffic in women soliciting prostitution or procuration illicit sexual relations excessively passionate love scenes indelicate sexual situations and scenes suggestive of immorality
In Clause D the exhibition of human form in nakedness or indecorously or suggestively dressed and indecorous and sensuous postures are condemned
In Section 11 are mentioned confinements details of surgical operations venereal diseases and loathsome diseases like leprosy and sores suicide or genocide female under clothing indecorous dancing importunation of women cruelty to children torture of adults brutal fighting gruesome murders or scenes of strangulation executions mutilations and bleeding cruelty to animals drunkenness or drinking not essential to the theme of the story traffic and use of drugs class hatred horrors of war horror as a predominant element scenes likely to afford information to the enemy in time of war exploitation of tragic incidents of war blackmail associated with immorality intimate biological studies crippled limbs or malformations gross travesties of administration of justice I and defamation of any living person
We have covered almost the entire range of instructions
It will be noticed that the control is both thematic and episodic
If the theme offends the rules and either with or without excision of the offending parts the film remains still offensive the certificate is refused
if the excisions can remove its offensiveness the film is granted a certificate
Certifiable films are classified according to their suitability for adults or young people
This is the essential working of Censorship of motion pictures in our country
458 The first question is whether the films need censorship at all  Pre censorship is but an aspect of censorship and bears the same relationship in quality to the material as censorship after the motion picture has had a run
The only difference is one of the stage at which the State interposes its regulations between the individual and his freedom
Beyond this there is no vital difference
That censorship is prevalent all the world over in some form or other and pre censorship also plays a part where motion pictures are involved shows the desirability of censorship in this field
The Khosla Committee has given a description generally of the regulations for censorship including pre censorship obtaining in other countries and Hunning s book deals with these topics in detail separately for each country
The method changes the rules are different and censorship is more strict in some Dlaces than in others but censorship is universal
Indeed the petitioner himself pronounced strongly in favour of it in a paper entitled Creative Expression  written by him
This is what he said But even if we believe that a novelist or a painter or a musician should be free to write paint and compose music without the interference of the State machinery I doubt if anyone will advocate the same freedom to be extended to the commercial exploitation of a powerful medium of expression and entertainment like the cinema
One can imagine the results if an unbridled commerical cinema is allowed to cater to the lowest common denominator of popular taste specially in a country which after two centuries of political and cultural domination is still suffering from a confusion and debasement of cultural values
Freedom of expression cannot and should not be interpreted as a licence for the cinemagnates to make money by pandering to and thereby propagating shoddy and vulgar taste  Further it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression
This arises from the instant appeal of the motion picture its versatility realism often surrealism and its coordination of the visual and aural senses
The art of the cameraman with trick photography vistavision and three dimensional representation thrown in _ has made the cinema picture more true to life than even the theatre or indeed any other form of representative article The motion picture is able to stir up emotions more deeply than any other product of article Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than 45 9 mature men and women
They also remember the action in the picture and try to emulate or imitate what they have seen
Therefore classification of films into two categories of U  films and A  films is a reasonable classification
It is also for this reason that motion picture must be regarded differently from other forms of speech and expression
A person reading a book or other writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture
Therefore the treatment of the latter on a different footing is also a valid classification
The petitioner pressed for acceptance of the minority views expressed from time to time in the Supreme Court of the United States and it is therefore necessary to say a few words about censorship of motion pictures in America and the impact of the First Amendment guaranteeing freedom of speech and expression in that country
The leading cases in the United States are really very few but they are followed in a very large number of per curiam decisions in which while concurring with the earlier opinion of the Court there is sometimes a restatement with a difference
As early as 1914 in Mutual Film Corpn
vs Industrial Commission of Ohio1Mr
Justice Me Kenna speaking for the full Court said that legislative power is not delegated unlawfully when a board of censors is set up to examine and censor as a condition precedent to exhibition motion picture films to be publicly exhibited and displayed with a view to passing and approving only such of them as are in the judgment of the board moral educational or amusing and forbidding those that are not
Speaking of the criteria stated in general words it was said that general terms get precision from the sense and experience of men and become certain and useful guides in reasoning and conduct
The first notice of change came in 1925 in Gitlow vs New York2 when it was said that censorship had to pass the scrutiny of the First Amendment through the Fourteenth Amendment before speech and expression could be abridged by State laws
To this was added in 1919 the test of clear and present danger  pro pounded by Justice Holmes as the only basis for curtailing the freedom of speech and expression see Shenck vs US3 and Justice Brandeis in Whitney vs California 4 laid down three components of the test aThere must be a clear and present danger that speech would produce a substantial evil that the State has power to prevent
This is not to say that it is enough if there is fear  there must be reasonable grounds to fear that serious evil would result from the exercise of speech and expression
1   3 1 919  2  4  460 lm15 bThere must be a present  or imminent  danger and for this there must be reasonable grounds to hold this opinion and that no reasonable opportunity was available to avert the consequences and cThe substantive evil to be prevented must be serious  before there can be a prohibition on freedom of speech and expression for the police power of the State could not be exercised to take away the guarantee to avert a relatively trivial harm to society
In 1931 in Near vs Minnesota1 immunity of press from pre censorship was denied but pre censorship as it is termed previous restraint was not to be unlimited
A major purpose of the First Amendment was to prevent prior restraint
The protection was not unlimited but put on the state the burden of showing that the limitation challenged in the case was exceptional
In 1941 the Court handed down in Chaplinsky vs New Ham pshire2 the opinion that free speech was not absolute at all times and in all circumstances that there existed certain well defined and narrowly limited classes of speech the prevention and punishment of which had never been thought to raise any constitutional problem
This state of affairs Continued also in respect of motion pictures and the regulation of their public exhibition
Real attention was focussed on censorship after 1951
The effect of World War 11 on American society was the real cause because peoples notions of right and wrong from a social point of view drastically altered
Added to this were the inroads made by Justices Douglas and Black in Dennis vs US 3 in the previously accepted propositions which according to them made the First Amendment no more than an admonition to Congress
In Beauharnais vs Illinois4 Justice Douglas claimed for the freedom of speech a preferred position because the provision was in absolute terms an opinion which has since not been shared by the majority of the Court
In 1951 there came the leading decision Burstyn vs Wilson This case firmly established that motion pictures were within the protection of the First Amendment through the Fourteenth
While recognising that there was no absolute freedom to exhibit every motion picture of every kind at all times and places and that constitutional protection even against a prior restraint was not absolutely unlimited limitation was said to be only in exceptional 1  3 1951 341 U section 494
2 4  5  461 cases
It however laid down that censorship on free speech and expression was ordinarily to be condemned but the precise rules
governing other methodsof expression were not necessarily applicable
The application of the 14th Amendment has now enabled the Court to interfere in all cases of state restrictions where censorship fails to follow due process
The result has led to a serious conflict in the accepted legal opinion
The Supreme Court has had to deal with numerous cases in which censorship was questioned
The divergence of opinion in recent years has been very deep
Censorship of press art and literature is on the verge of extinction except in the ever shrinking area of obscenity
In the field of censorship of the motion picture there has been a tendency to apply the void for vagueness  doctrine evolved under the due process clause
Thus regulations containing such words as obscene indecent  immoral  prejudicial to the best interests of people   tending to corrupt morals  harmful  were considered vague criteria
In Kingsley International Pictures Corpn
vs Regents1 where the film Lady Chatterley s Lover was in question certain opinions were expressed
These opinions formed the basis of the arguments on behalf of the petitioner
Justice Black considered that the court was the worst of Board Censors because they possessed no special expertise
Justice Frankfurter was of the opinion that legislation must not be so vague the language so loose as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what was permissible expression as well as what society might permissibly prohibit always remembering that the widest scope for freedom was to be given to the adventurous and imaginative exercise of human spirit 
Justice Douglas considered prior restraint as unconstiutional
According to him if a movie violated a valid law the exhibitor could be prosecuted
The only test that seemed to prevail was that of obscenity as propunded inRoth vs United States2
In that three tests were laid down athat the dominant theme taken as a whole appeals to prurient interests according to the contemporary standards of the average man bthat the motion picture is not saved by any redeeming social value and cthat it is patently offensive because it is opposed to contemporary standards
1  2  3 6 2 The Hicklin test in Regina vs Hicklin1 was not accepted
Side by side procedural safeguards were also considered
The leading case is Freedmen vs Maryland2 where the court listed the following requirements for a valid film statute 1The burden of proving that the film is obscene rests on the censor
2Final restraint denial of licence may only occur after judicial determination of the obscenity of the material
3The censor will either issue the license or go into court himself for a restraining order
4There must be only a brief period  between the censor s first consideration of film and final judicial determination
As summarized by Martin Shapiro Freedom of Speech The Supreme Court and Judicial Re view
These were further strengthened recently in Teitel Film Corp v Cusak3 a per curiam decision by saying that a non criminal process which required the prior submission of a film to a censor avoided constitutional infirmity only if censorship took place under procedural safeguards
The censorship system should therefore have a time limit 
The censor must either pass the film or go to court to restrain the showing of the film and the court also must give a prompt decision
A delay of 50 57 days was considered too much
The statute in question there had meticulously laid down the time for each stage of examination but had not fixed any time limit for prompt judicial determination and this proved fatal The fight against censorship was finally lost in the Times Film Corporation vs Chicago4 but only by the slender majority of one Chief Justice Warren and Justices Black Douglas and Brennan dissented
The views of these Judges were pressed upon us
Chief Justice Warren thought that there ought to be first an exhibition of an allegedly obscene film  because Government could not forbid the exhibition of a film in advance
Thus prior restraint was said to be impermissible
Justice Douglas went further and said that censorship of movies was unconstitutional
Justice Clark on the other hand speaking for the majority said  
It has never been held that liberty of speech is absolute
Nor has it been suggested that all previous restraints on speech are invalid
1 L R 2  3  4  46 3 It is not for this Court to limit the State in its selection of the remedy it deems most effective
to cope with such a problem absent of course a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances
 The argument that exhibition of moving pictures ought in the first instance to be free and only a criminal prosecution should be the mode of restraint when found offensive was rejected
The precensorship involved was held to be no ground for striking down a law of censorship
The minority was of the opinion that a person producing a film must know what he was to do or not to do
For if he were not sure he might avoid even the permissible
In Interstate Circuit Inc vs Dallas1 certain expression were considered vague including crime delinquency  sexual promiscuity  not suitable for young persons
According to the court the statute must state narrowly drawn reasonably definite standards for the Board to follow
Justice Harlan however observed that the courts had not found any more precise expressions and more could not be demanded from the legislature than could be said by the Court
However precision of regulation was to be the touchstone of censorship and while admitting that censorship was admissible it was said that too wide a discretion should not be left to the censors
Meanwhile in Jacobellis vs Ohio 2 it was held that was laws could legitimately aim specifically at preventing distribution of objectionable material to children and thus it approved of the system of age classification
The Interstate Circuit Inc vs Dallas1 and Ginsberg vs New York3 sat the seal on validity of  age classification as constitutionally valid
There are two cases which seem to lie outside the main stream
Recently in Stanley vs Georgia4 the Court seems to have gone back on the Roth case supra and held that the right to receive information and ideas regardless of their social worth is also fundamental to society
Another exception can only be understood on the basis of the recognition of the needs of a permissive society
Thus Mishkin vs New York removes the test of the average person by saying that if the material is designed for a deviant sexual group the material can only be censored if taken as a whole it appeals to the purient interest in sex of the members of that group
This is known as the selective audience obscenity test and even children are a special class
See Ginsberg vs New 11961  2   3  4 1969 394 U section 5  464 York1
On the whole however there is in this last case a return to the Hicklin test in that obscenity is considered even from isolated passages
To summarize
The attitude of the Supreme Court of the United States is not as uniform as one could wish
It may be taken as settled that motion picture is considered a form of expression and entitled to protection of First Amendment
The view that it is only commercial and business and therefore not entitled to the protection as was said in Mutual Film Corpn
2 is not now accepted
It is also settled that freedom of speech and expression admits of extremely narrow restraints in cases of clear and present danger but included in the restraints are prior as well as subsequent restraints
The censorship should be based on precise statement of what may not be subject matter of film making and this should allow full liberty to the growth of art and literature
Age classification is permissible and suitability for special audiences is not to depend on whether the average man would have considered the film suitable
Procedural safeguards as laid down in the Freedman case3 must also be observed
The film can only be censored if it offends in the manner set out in Roth s case
The petitioner put before us  all these dicta for our acceptance and added to them the rejection of censorship particularly prior censorship by Chief Justice Warren and Justices Black and Douglas
He pointed out that in England too the censorship of the theatre has been abolished by the Theatres Act 1968 1968 C 54 and submitted that this is the trend in advanced countries
He also brought to our notice the provisions of the Obscene Publications Act 1959 7  8 Eliz
2 C 66 where the test of obscenity is stated thus  1
Test of obscenity
1For the purposes of this Act an article shall be deemed to be obscene if its effect or where the article comprises two or more distinct items the effect of any one of its items is if taken as a whole such as to tend to deprave and corrupt persons who are likely having regard to all relevant circumstances to read see or hear the matter contained of embodied in it
and the defence of public good is stated thus 4
Defence of public good
1  3  2  465 1  A person shall not be convicted of an offence against section two of this Act and an order for forfeiture shall not be made under the foregoing section if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science literature art or learning or of other objects of general concern
2It is hereby declared that the opinion of experts as to the literary artistic scientific or other merits of an article may be admitted in any proceedings under this Act either to establish or to negative the said ground He contended that we must follow the above provisions
We may now consider the English practice
In England there was little freedom of speech to start with
The Common Law made no provision for it
The two constitutional documents the Petition of Right 1628 and the Bill of Rights 1689 do not mention it
By the time of Queen Elizabeth I presses were controlled through licences and although they were granted no book could be issued without the sanction of Government
The Star Chamber tried several cases of censorship and it even continued in the days of Cromwell
Milton was the first to attack censorship in his Areopagitica and that had profound effect on the freedom of speech
We find quotations from his writings in the opinions of Chief Justice Warren and Justice Dougles
Free dom of speech came to be recognised by slow stages and it was Blackstone who wrote in his Commentaries Book IV p 1517 The liberty of the Press is indeed essential to the nature of a free State but this consists in laying no previous restraints upon publications
 But censorship of theatres continued and no theatre could be licensed or a play performed without the sanction of the Lord Chamberlain
By the Theatres Act 1843 the Lord Chamberlain was given statutory control over the theatres
He could forbid the production of a play for the preservation of good manners decorum or the public peace
There was ordinarily no censorship of the press in England
When cinematograph came into being the Cinematograph Act 1909 was passed to control cinemas
It has now been amended by the Cinematograph Act of 1952
Restrictions were placed on the exhibition of films to children s4 and on the admission of children to certain types of film
Today censorship of films is through the British Board of Film Censors which is an independent body not subject to control by the State
An elaborate inquiry is already on foot to consider whether state control is needed or not
Censorship of films is run on the lines 4 6 6 set by TP O Connor in 1918
These directions as we said earlier have had a great influence upon our laws and our directions issued by the Central Government follow closely the 43 points of TP O Connor
It is wrong to imagine that there is no censorship in England
The Khosla Committee p 32 has given examples of the cuts ordered and also a list of films which were found unsuitable
The Board has never worked to a Code although the directions are followed
By 1950 three general principles were evolved
They are 1Was the story incident or dialogue likely to impair the moral standards of the public by extenuating vice or crime or depreciating moral standards  2Was it likely to give offence to reasonably minded cinema audiences  3What effect
would it have on the minds of children  We have digressed into the practice of the United States and the United Kingdom because analogies from these two countries were mainly relied upon by the petitioner and they serve as a very appropriate back ground from which to begin discussion on the question of censorship and the extent to which it may be carried
To begin with our fundamental law allows freedom of speech and expression to be restricted as clause 2 itself shows
It was observed in Ranjit D Udeshi vs State of Maharashtra1
Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression because the article dealing with the right itself excludes it
That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions
or for the advancement of human knowledge
This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality
Section 292 Indian Penal Code manifestly embodies such a restriction because the law against obscenity of course correctly understood and applied seeks no more than to promote public decency and morality
We adhere to this statement and indeed it is applicable to the other spheres where control is tolerated under our fundamental law
The argument that section 5 B of the Cinematograph Act does 11965 1 SCR 65 4 6 7 not reproduce the full effect of the second clause of article 19 need not detain us
It appears that the draftsman used a copy of the Constitution
as it was before the First Amendment and fell into the error of copying the obsolete clause That however does not make any difference
The Constitution has to be read first and the section next
The latter can neither take away nor add to what the Constitution has said on the subject
The word reasonable  is not to be found in section 5 B but it cannot mean that the restrictions can be unreasonable
No only the sense of the matter but the existence of the constitutional provision in part materia must have due share and reading the provisions of the Constitution we can approach the problem without having to adopt a too liberal construction of section 5 B It therefore follows that the American and the British precedents cannot be decisive and certainly not the minority view expressed by some of the Judges of the Supreme Court of the former
The American Constitution stated the guarantee in absolute terms without any qualification
The Judges try to give full effect to the guarantee by every argument they can validly use
But the strongest proponent of the freedom Justice Douglas himself recognised in the Kingsley case that there must be a vital difference in approach
This is what he said  If we had a provision in our Constitution for reasonable  regulation of the press such as India has included in hers there would be room for argument that censorship in the interests of morality would be permissible
In spite of the absence of such a provision Judges in America have tried to read the words reasonable restrictions  into the First Amendment and thus to make the rights it grants subject to reasonable regulation
The American cases in their majority opinions therefore clearly support a case of censorship
It would appear from this that censorship of films their classification according to age groups and their suitability for unrestricted exhibition with or without excisions is regarded as a valid exercise of power in the interests of public morality decency etc
This is not to be construed as necessarily offending the freedom of speech and expression
This has however happened in the United States and therefore decisions as Justice Douglas said in his Tagore Law Lectures 1939 have the flavour of due process rather than what was conceived as the _purpose of the First Amendment
This is because social interest of the people override individual freedom
Whether we regard the state as the paren patriae or as guardian and promoter of general welfare we have to concede that these restraints on liberty may be justified by their absolute necessity and clear purpose
Social interests take in not only 468 the interests of the community but also individual interests which cannot be ignored
A balance has therefore to be struck between the rival claims by reconciling them
The larger interests of the community require the formulation of policies and regulations to combat dishonesty corruption gambling vice and other things of immoral tendency and things which affect the security of the State and the preservation of public order and tranquillity
As Ahrens said the question calls for a good philosophical campass and strict logical methods
With this preliminary discussion we say that censorship in India and precensorship is not different in quality has full justification in the field of the exhibition of cinema films
We need not generalize about other forms of speech and expression here for each such fundamental right has a different content and importance
The censorship imposed on the making and exhibition of films is in the interests of society
If the regulations venture into something which goes beyond this legitimate opening to restrictions they can be questioned on the ground that a legitimate power is being abused
We hold therefore that censorship of films including prior restraint is justified under our Constitution
This brings us to the next questions  How far can these restrictions go  and how are they to be imposed  This leads to an examination of the provisions contained in section 5 B 2
That provision authorises the Central government to 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
The first question raised before us is that the legislature has not indicated any guidance to the Central Government
We do not think that this is a fair reading of the section as a whole
The first sub section states the principles and read with the second clause of the nineteenth article it is quite clearly indicated that the topics of films or their content should not offend certain matters there set down
The Central Government in dealing with the problem of censorship will have to bear in mind those principles and they will be the philosophical compass and the logical methods of Ahrens
Of course Parliament can adopt the directions and put them in schedule to the Act and that may still be done it cannot be said that there is any delegation of legislative function
If Parliament made a law giving power to close certain roads for certain vehicular traffic at stated times to be determined by the Executive authorities and they made regulations in the exercise of that power it cannot for a moment be argued that this is insufficient to take away the right of locomotion
Of course every thing may be done by legislation but it is not necessary to do so 4 69 if the policy underlying regulations is clearly indicated
The Central Government s regulations are there for consideration in the light of the guaranteed freedom and if they offend substantially against that freedom they may be struck down
But as they stand they cannot be challeneged on the ground that any recondite theory of law making or a critical approach to the separation of powers is infringed
We are accordingly of the opinion that section 5 B 2 cannot be challenged on this ground
This brings us to the manner of the exercise of control and restriction by the directions
Here the argument is that most of the regulations are vague and further that they leave no scope for the exercise of creative genius in the field of article This poses the first question before us whether the void for vagueness  doctrine is applicable
Reliance in this connection is placed on Municipal Committee Amritsar and anr
vs The State of Rajasthan1
In that case a Division Bench of this Court lays down that an Indian Act cannot be declared invalid on the ground that it violates the due process clause or that it is vague
Shah J speaking for the Division Bench observes  the rule that an Act of a competent legislature may be struck down  by the courts on the ground of vagueness is alien to our constitutional system
The Legislature of the State of Punjab was competent to enact legislation in respect of fairs  vide Entry 28 of List II of the 7th Schedule to the Constitution
A law may be declared invalid by the superior courts in India if the legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any constitutional provision but not on the ground that it is vague
 The learned Judge refers to the practice of the Supreme Court of the United State in Claude C Caually vs General Construction Co2 where it was observed A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law The learned Judge observes in relation to this as follows But the rule enunciated by the American Courts has no application under our constitutional set up
This rule is regarded as an essential of the due process 1 AIR 1960 SC 1100
3 436SupCI71 2 47 0 clause  incorporated in the American Constitution by the 5th and 14th Amendments
The courts in India have no authority to declare a statute invalid on the ground that it violates the due process of law 
Under our Constitution the test of due process of law cannot be applied to the statutes enacted by the Parliament or the State Legislature
Relying on the observations of Kania CJ in A K Gopalan vs The State of Madras1 to the effect that a law cannot be declared void because it is opposed to the spirit supposed to pervade the Constitution but not expressed in words the conclusion above set out is reiterated
The learned Judge however adds that the words cattle fair  in act there considered are sufficiently clear and there is no vagueness
These observations which are clearly obiter are apt to be too generally applied and need to be explained
While it is true that the principles evolved by the Supreme Court of the United States of America in the application of the Fourteenth Amendment were eschewed in our Constitution and instead the limits of restrictions on each fundamental right were indicated in the clauses that follow the first clause of the nineteenth article it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness
There is ample authority for the proposition that a law affecting fundamental rights may be so considered
A very partinent example is to be found in State of Madhya Pradesh and Anr
vs Baldeo Prasad 2 where the Central Provinces and Berar Goondas Act 1946 was declared void for uncertainty the condition for the application of sections 4 and 4A was that the person sought to be proceeded against must be a goonda but the definition of goonda in the Act indicated no tests for deciding which person fell within the definition
The provisions were therefore held to be uncertain and vague
The real rule is that if a law is vague or appears to be so the court must try to construe it as far as may be and language permitting the construction sought to be placed on it must be in accordance with the intention of the legislature
Thus if the law is open to diverse construction that construction which accords best with the intention of the legislature and advances the purpose of legislation is to be preferred
Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom the law must be held to offend the Constitution as was done in the case of the Goonda Act
This is not application of the doctrine of due process
The invalidity arises from the 1  2  at 979
4 7 1 probability of the misuse of the law to the deteriment of the individual
If possible the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases
Judging the directions from this angle we find that there are general principles regarding the films as a whole and specific instances of what may be considered as offending the public interest as disclosed in the clause that follows the enunication of the freedoms in article 191a
The general principles which are stated in the directions seek to do no more than restate the permissible restrictions as stated in cl
2 of article 19 and section 5 B1 of the Act
They cannot be said to be vague at all
Similarly the principles in section IV of the directions in relation to children and young persons are quite specific and also salutary and no exception can be taken
It is only the instances which are given in Section I Clauses A to D which need to be considered
Read individually they give ample direction as to what may not be included
It is argued on the basis of some American cases already noticed by us that these expressions are vague
We do not agree
The words used are within the common understanding of the average man
For example the word rape  indicate what the word is ordinarily understood to mean
It is hardly to be expected or necessary that the definition of rape in the Penal Code must be set down to further expose the meaning
The same may be said about almost all the terms used in the directions and discussed before us
We do not propose to deal with each topic for that is really a profitless ven ture
Fundamental rights are to be judged in a broadway
It is not a question of semantics but of the substance of the matter
It is significant that Justice Douglas who is in favour of a very liberal and absolute application of the First Amendment in America is of the view that sexual promiscuity  was not vague while those in favour of prior restraints thought that it was
We have referred earlier to the case
We are quite clear that expressions like seduction  immoral traffic in women 
soliciting pros titution or procuration  indelicate sexual situation  and scenes suggestive of immorality  traffic and use of drugs  class hatred blackmail associated with immorality  are within the understanding of the average men and more so of persons who are likely to be the panel for purposes of censorship
Any more definiteness is not only not expected but is not possible
Indeed if we were required to draw up a list we would also follow the same general pattern
But what appears to us to be the real flaw in the scheme of the directions is a total absence of any direction which would tend to preserve art and promote it
The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears
472 to be completely forgotten
Artistic as well as inartistic presentations are treated alike and also what may be socially good and useful and what may not
In Ranjit D Udeshi s case1 this court laid down certain Principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn
Those principles apply mutatis mutandis to films and also other areas besides obscenity
The Khosla Committee also adopted them and recommended them for the guidance of the film censors
We may reproduce them here as summarized by the Khosla Committee The Supreme Court laid down the following principles which must be carefully studied and applied by our censors when they have to deal with a film said to be objectionable on the ground of indecency or immorality  1 Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more
2 Comparison of one book with another to find the extent of permissible action is not necessary
3 The delicate task of deciding what is artistic and what is obscene has to be perfo rmed by courts and in the last resort by the Supreme Court and so oral evidence of men of literature or others on the question of obscenity is not relevant
4 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 is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall
5The interest s of contemporary society and particularly the influence of the book etc
 on it must not be overlooked
6 Where obscenity and art are mixed art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked
7 Treating with sex in a manner offensive to public decency or morality which are the words of our 1  473 Fundamental Law judged by our national stan dards and considered likely to pender to lascivious prurient or sexually precocious minds must determine the result
8 When there is propagation of ideas opinions and informations or public interests or profits the interests of society may tilt the scales in favour of free speech and expression
Thus books on medical science with intimate illustrations and photographs though in a sense immodest are not to be considered obscene but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene
9 Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech or expression
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
1 0Knowledge is not a part of the guilty act
The offender s knowledge of the obscenity of the book is not required under the law and it is a case of strict liability
 Applicationof these principles does not seek to whittle down the fundamentalright of free speech and expression beyond the limits permissibleunder our Constitution for however high or cherished that right it does not go to pervert or harm society and the line has to be drawn somewhere
As was observed in the same case  
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   A similar line has to be drawn in the case of every topic in films considered unsuitable for _public exhibition or specially to children
We may now illustrate our meaning how even the items men tioned in the directions may figure in films subject either to their artistic merit or their social value over weighing their offending character
The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands
47 4 established by prior ratiocination
But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought speech and expression of artistic quality and social purpose and interest
our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read
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 foibles along with what is good
We must not look upon such human relationships as banned in toto and for ever 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 the line is to be drawn where the average man 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
If the depraved begins to see in these things more than what an average person would in much the same way as it is wrongly said a Frenchman sees a woman s legs in everything it cannot be helped
In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth
Sex and obscenity are not always synonymous and it is wrong to classify sex as essen tially obscene or even indecent or immoral
It should be our concern however to prevent the use of sex designed to play a commerical role by making its own appeal
This draws in the censors scissors
Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother
When the seer Tiresias exposed him his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes
No one after viewing these episodes would think that patricide or incest with one s own mother is permissible or suicide in such circumstances or tearing out one s own eyes is a natural consequence
And yet if one goes by the letter of the directions the film cannot be shown
Similarly scenes depicting leprosy as a theme in a story or in A documentary are not necessarily outside the protection
If that were so Verrier Elwyn s Phulmat of the Hills or the same episode in Henryson s Testament of Cresseid from where Verrier Elwyn borrowed the idea would never see the light of the day
Again carnage and bloodshed may have historical value and the depiction of such scenes as the sack of Delhi by Nadirshah may be permissible if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila
If Nadir Shah made golgothas of skulls must we leave them out of the story because people must be made to view a historical theme without true history  Rape in all its nakedness may be objectionable but Vol 47 5 taire s Candide would  be meaningless without Cunegonde s episode with the soldier and the story of Lucrece could never be depicted on the screen
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
We have said all this to show that the items mentioned in the directions are not by themselves defective
We have adhered to the 43 points of TP O Connor framed in 1918 and have made a comprehensive list of what may not be shown
Parliament has left this task to the Central Government and in our opinion this could be done
But Parliament has not legislated enough nor has the Central Government filled in the gap Neither has separated the artistic and the sociably valuable from that which is deliberately indecent obscene horrifying or corrupting
They have not indicated the need of society and the freedom of the individual
They have thought more of the depraved and less of the ordinary moral man
In their desire to keep films from the abnormal they have excluded the moral
They have attempted to bring down the public motion picture to the level of home movies
It was for this purpose that this Court was at pains to point out in Ranjit D Udeshi s case1 certain considerations for the guidance of censorship of books
We think that those guides work as well here
Although we are not inclined to hold that the directions are defective in so far as they go we are of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included
Whether this is done by Par liment or by the Central Government it hardly matters
The whole of the law and the regulations under it will have always to be considered and if the further tests laid down here are followed the system of censorship with the procedural safeguards accepted by the Solicitor General will make censorship accord with our fundamental law
We allow this petition as its purpose is more than served by the assurance of the Solicitor General and what we have said but in the circumstances we make no order about costs
Petition allowed


Summary:
The petitioner made a documentary film called A Tale of Four Cities which attempted to portray the contrast between the life of the rich and the poor in the four principal cities of the country
The film included certain shots of the red light district in Bombay
Although the petitioner applied to the Board of Film Censors for a U  Certificate for unrestricted exhibition of the film he was granted a certificate only for exhibition restricted to adults
On an appeal made to it by the petitioner the Central Government issued a direction on July 3 1969 that a u  Certificate may be granted provided certain specified cuts were made in the film
The petitioner thereafter field the present petition seeking a declaration that the provisions of of the  together with the rules prescribed by the Central Government on February 6 1960 in the exercise of its powers under section 5 B of the Act were un constitutional and void he further prayed that the direction dated July 3 1969 should be quashed
The petitioner claimed that his fundamental tight of free speech and expression was denied by the order of the Central Government and that he was entitled to a U  Certificate for the film as of right
At the hearing of the petition the Central Government indicated it had decided to grant a U  Certificate to the petitioner s film without the cuts previously ordered
The petitioner then applied for amendment of the petition so as toenable him to challenge pre censorship as offensive to freedom of speechand expression and alternatively the provisions of the Act and the Rulesorders and directions under the Act as vague arbitrary and indefinite
The Court allowed the amendment holding the petitioner was right in contending that a person who invests capital in promoting or producing a film must have clear guidance in advance in the matter of censorship of films even if the law of pre censorship be not violative of the fundamental right
It was contended inter alia on behalf of the petitioner a that pre censorship itself violated the right to freedom of speech and expression and b that even if it were a legitimate restraint on the freedom it must be exercised on very definite principles which leave no room for arbitrary action
HELD  i Censorship of films including prior restraint is justified under the Constitution
It has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression
447 This arises from the instant appeal of the motion picture its versatility realism often surrealism and its coordination of the visual and aural senses
The art of the cameraman with trick photography vistavision and three dimensional representation has made the cinema picture more true to life than even the theatre or indeed any other form of representative article The motion picture is able to stir up emotions more deeply than any other product of article Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women
They also remember the action in the picture and try to emulate or imitate what they have seen
Therefore classification of films into two categories of U  films and A  films is a reasonable classification
It is also for this reason that motion pictures must be regarded differently from other forms of speech and expression
A person reading a book or other writing or bearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture
Therefore the treatment of the latter on a different footing is also a valid classification
458 G iiSection 5 B authorises the Central Government to 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 cannot be said that this Section has not indicated any guidance to the Central Government
The first sub section states the principles and read with the second clause of the nineteenth article it is quite clearly indicated that the topics of films or their content should not offend certain matters there set down
A law cannot be declared void because it is opposed to the spirit supposed to pervade the Constitution but not expressed in words
However it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness
The real rule is that if a law is vague or appears to be so the court must try to construe it as far as may be and language permitting the construction sought to be placed on it must be in accordance with the intention of the legislature
Thus if the law is open to diverse construction that construction which accords best with the intention of the legislature and advances the purpose of legislation is to be preferred
Where however the law admits of Do such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom the law must be held to offend the Constitution This is not application of the doctrine of due process
The invalidity arises from the probability of the misuse of the law to the detriment of the individual
If possible the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases
470 G Judging the directions rules and regulations from this angle it must be held that there are general principles regarding the films as a whole and specific instances of what may be considered as offending the public interest as disclosed in the clause that follows the enunciation of the freedoms in article 191 a
The general principles which are stated in the directions given under section 5 B2 seek to do no more than restate the permissible restrictions as stated in cl
2 of article 19 and section 5 B1 of the Act
They cannot be said to be vague at all
Similarly the prin ciples in section IV of the directions in relation to children and young persons are quite specific and also salutary and no exception can be taken
It is only the instances which are given in Section I Clauses A to D which need to be considered
Read individually they give ample direction as to what may not be included
471 B 448 It is clear that expressions like seduction  immoral traffic in women  soliciting
prostitution or procuration  indelicate sexual situation  and scenes suggestive of immorality  traffic and use of drugs  class hatred  blackmail associated with immorality  are within the understanding of the average men and more so of persons who are likely to be the panel for purposes of censorship
Any more definiteness is not only not expected but is not possible
471 G Municipal Committee Amritsar and anr
vs The State of Rajasthan AIR 1960 SC 1100 explained
Claude C Caually vs General Construction Co
1926  A K Gopalan vs The State of Madras  and State of Madhya Pradesh and Anr
vs Baldeo Prasad  at 979 referred to
iiiA real flaw in the scheme of the directions under section 5 B2 is a total absence of any direction which would tend to preserve art and promote it
The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears to be completely forgotten
Artistic as well as inartistic presentation are treated alike and also what may be socially good and useful and what may not
In Ranjit D Udeshi s case this Court laid down certain principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn
Those principles apply miutatis mutandis to films and also other areas besides obscenity
Although it could not be held that the directions are defective in so far as they go directions to emphasize the importance of art to a value judgment by the censors need to be included
471 H US UK and other case law considered