IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 16-02-2008 CORAM THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN WRIT PETITION No.2921 of 2004 and W.P.M.P.No.3441 of 2004 National Federation of Indian Women Tamil Nadu Council, rep. by its General Secretary Mrs.K.Santhakumari. ... Petitioner -vs- 1. Government of Tamil Nadu rep. by its Secretary Home Department, Secretariat, Chennai – 600 009. 2. The Director General of Police Kamarajar Salai, Chennai – 600 004. 3. The Regional Officer Central Board of Film Certification Shastri Bhavan, Chennai – 600 006. ... Respondents Writ Petition, seeking mandamus is filed by the petitioner, under Article 226 of the Constitution of India, to direct the respondents 1 and 2 to discharge their statutory obligation by enforcing the prohibitions imposed by the third respondent in the process of censor and certification of movie films in respect of cuts in visuals as well as songs and dialogues (audio) in the State of Tamil Nadu by effecting seizure of materials containing prohibited video and audio and by strictly prosecuting the offenders an also by giving a public warning and notification in this regard. For petitioner : Mrs.K.Santhakumari (Party-in-person) For respondents : Mrs.D.Geetha, AGP for R1 and R2 Mr.P.Wilson, ACGSC for R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R S.TAMILVANAN,J This writ petition is filed for issuance of a writ of mandamus directing the respondents 1 and 2 to discharge their statutory obligation by enforcing the prohibitions imposed by the third respondent in the process of censor and certification of movie films in respect of cuts in visuals as well as songs and dialogues (audio) in the State of Tamil Nadu by effecting seizures of materials containing prohibited video and audio matters, by prosecuting the offenders and also by giving a public warning and notification in this regard. 2. This writ petition has been filed as a Public Interest Litigation by the National Federation of India Women, Tamil Nadu Council, an Association registered under the Society Registration Act, represented by its General Secretary. According to the petitioner, various satellite cable networks and individual operators are telecasting movies and scenes for public view and play songs and dialogues, even after having prohibited by the Censor Board, the third respondent herein, without considering the age of the viewers and audience. 3. According to the petitioner, on 12.12.2003, she had made a representation before the respondents stating that certain private FM radio companies are broadcasting the songs prohibited by the Censor Board in public, though the songs containing objectionable words which should not be heard by the children. It has been further contended that prohibited cassettes containing objectionable words or stanzas of video or audio clippings, which were directed to be removed by the Censor Board, but are being sold, due to which, the culture of the society is being spoiled and the same will mislead the youth to use the same even for eve teasing. 4. Mrs.K.Santhakumari, a practicing Advocate, as General Secretary of the petitioner Federation, appeared party-in-person, submitted that the aforesaid violation has a direct impact and consequences against the women in the State and on that ground pleaded that the video and audio cassettes and CD disks of obscene movies containing the stanzas or words, which are prohibited by the Censor Board should be curtailed from public view and hearing. Based on the aforesaid pleadings, the petitioner herein has sought for a direction to the respondents, to seize all the video and audio cassettes, which contain obscene visuals and songs which are prohibited by the Censor Board. https://hcservices.ecourts.gov.in/hcservices/ 5. Mrs.D.Geetha, learned Additional Government Pleader appearing for the respondents 1 and 2 had not disputed the fact that as per the provisions of Cinematography Act, 1953, there is a ban on exhibiting obscene visuals and songs prohibited by the Censor Board and if it is played in public, the Police Department and the District Administration should firmly deal with the offender, according to law. 6. The petitioner herein submitted that the police department and the District authorities in the State of Tamil Nadu did not care to interfere with the aforesaid illegal act, either out of indifference or out of ignorance of the provisions of law, relating to such prohibition of obscenity in public places. The petitioner would contend that cable telegraphic network telecast ‘A’ certificate movies, at all times, indiscriminately for unrestricted public viewing and obscene songs or dialogues, containing obscene part of films are bring broadcasted or telecasted every day, in every possible manner. According to her, even the obscene scenes or songs are played on several route buses in the State of Tamil Nadu. 7. In the affidavit, the petitioner has specifically stated that the songs from the movie named “Pudukottaiyilirunthu Saravanan” consisting of obscene words describing women in general in a very obscene and in descent manner could be noticed by her and upon a complaint to the Censor Board, the police had seized the cassettes. 8. The petitioner contended that several hundreds of such instances of offences are being committed by the telecasters and broadcasting companies every day, without subjected to any action by the respondents, irrespective of the fact that both boys and girls in the adolescent age are also travelling in the buses along with their parents and other family members. 9. As the matter relates to public importance, this Court asked the views of all the learned members of the Bar present in the open court on the subject. The learned Senior Counsel, Mr.P.N.Prakash and Assistant Solicitor General Mr.P.Wilson and others have contributed their views. It is a consensus and unanimous view that telecasting prohibited portion of any movie, song or dialogue, on account of its obscenity, for public view and hearing by satellite cable network and other individual operators should be curtailed, as the same would affect the society in general, as contended by the petitioner. The other view expressed by the learned members was that there are possibility for telecasting or playing obscene video or audio cassettes, which are not subjected to the purview of Censor Board. Considering the factual aspects, we are of the view that if there is any visual or audio clipping, not being part of any film, though obscene would not come under the purview of Central Board of Film Certification. https://hcservices.ecourts.gov.in/hcservices/ 10. In public places and plying buses, especially on the mufsal routes, it is possible to play such unauthorized obscene visuals, songs or dialogues, for which action can be taken by the respondent 1 and 2 under the Indian Penal Code. From the views expressed by the learned members, we could visualize that even in certain theatres, prohibited obscene portions of films that were cut and removed, while issuance of Censor Certificate, are subsequently attached with the film and exhibited for public view. 11. As per Section 7A of the Cinematograph Act, 1952, any police officer may enter in any place, in which he has reason to believe that a film is exhibited in contravention of the Act. Section 7A of the Cinematograph Act, 1952 ( herein after referred to as the Act) reads as follows : “ 7A Power of seizure : (1) Where a film in respect of which no certificate has been granted under this Act is exhibited, or a film certified as suitable for public exhibition restricted to adults is exhibited to any person who is not an adult or a film is exhibited in contravention of any of the other provisions contained in this Act or of any order made by the Central Government, the Tribunal or the Board in exercise of any of the powers conferred on it, any police officer, may enter any place in which he has reason to believe that the film has been or is being or is likely to be exhibited, search it and seize the film.” 12. Apart from seizure of such a film, penal action can also be taken by the authorities against the offenders, who violate or contravene the Act, by exhibiting a film without any restriction, though certified as suitable for restricted adults in public exhibition under Section 7 of the Act. As contemplated under Section 7(i) of the Act, any film other than a film which has been certified by the Board as suitable for unrestricted public exhibition or for public exhibition restricted to adults or to members of any profession or any class of persons, if exhibited or displayed contravening the Act, would be liable for punishment of sentence, which may extend to three years or with fine, which may extend to one lakh rupees or with both. 13. As per the definitions under Section 2 (c), the term, “cinematograph”, includes any apparatus for the representation of moving pictures or series of pictures. As per sub section (e) of Section 2 “place” includes a house, building, tent and any description of transport, whether by sea, land or air. https://hcservices.ecourts.gov.in/hcservices/ 14. It is not in dispute that even a part of the film or song displayed in any house, building, tent or even in transport, subject to public view, violating the provisions of the Act, would be an offence, punishable under the Cinematograph Act, 1952. 15. The Hon’ble Supreme Court in the decision, Raja Video Parlour vs. State of Punjab, reported in AIR 1993 SC 2330, has categorically held that Punjab Cinema Regulation Rules are applicable to exhibition of films on a separate screen through video cassette players and television projectors. The words ‘television screen’ in the Rules are wide enough to cover a screen of the TV projector as the same is a television receiver. 16. However, the ratio of the aforesaid decision of the Supreme Court cannot be extended to cover a case where song is played only in an audio cassette and there is no accompanying visual display. 17. It is not in dispute that prohibiting obscene visuals and accompanied by audio to public view and hearing cannot be construed as an unreasonable restriction against the fundamental rights of any operators of cable networks or others, as guaranteed under Article 19 (1) (g) of the Constitution. 18. Restriction on censored visuals including audio when they are part of such visuals, is obviously contemplated under the Cinematograph Act and a person can be proceeded against under the provisions of the said Act. Even such persons can be prosecuted under the relevant provisions contained in the Indian Penal Code, if facts and circumstances so warrant. However, keeping in view the limited meaning ascribed to “Cinematograph” in the Act, playing of mere audio cassette without any accompanying visual display, even if such audio cassettes contain lyrics, which are directed to be deleted from the film by the Censor Board, would not be violative of any specific provision of the Cinematograph Act. However, if such lyrics contained in an audio cassette are of obscene, appropriate action can always be taken by the authorities, under the Indian Penal Code. 19. Even though the petitioner's apprehension regarding playing of obscene songs in public places is justified, we are afraid keeping in view of the limited scope of the Cinematograph Act, as per the existing provisions, no action can be taken, though the authorities are not helpless in the matter and they can always take appropriate action under the Indian Penal Code. 20. In the decision, I.P.R. Society vs. E.I.M.P. Association, reported in AIR 1977 SC 1443 the Hon’ble Supreme Court has held as follows : “The Indian music lovers throng to listen and be enthralled or enchanted by the nadabrahma, the sweet https://hcservices.ecourts.gov.in/hcservices/ concord of sounds, the raga, the bhava, the laya and the sublime or exciting singing. Printed music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal, strangely enough, ‘author’ as defined in S.2 (d) in relation to a musical work is only the composer and S.16 confined ‘copyright’ to those works which are recognized by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitlement of the musician or group of musical artists to copyright is un-Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognized by the copyright law.” 21. The ratio of the aforesaid decision in the context of “copyright” cited by the petitioner, cannot be extended to hold that playing of a song containing deleted lyrics without being accompanied by visual display would be violative of any provision contained in the Cinematograph Act. 22. Keeping in view the aforesaid aspects, we dispose of the writ petition with the observation that if any song containing obscene lyrics (whether such lyrics have been directed to be deleted by the Censor Board or otherwise) can always be subjected to appropriate provisions contained in the Indian Penal Code, but the provisions of the Cintematograph Act could not be applicable to such transgression. The question as to whether appropriate provision would contain in the Cinematograph Act or any other statutory provision is to be made prohibiting the use of the songs containing deleted lyrics or obscene lyrics, is a matter for the appropriate Legislature to consider. 23. The writ petition is accordingly disposed of, subject to the aforesaid observation. No costs. Consequently, connected miscellaneous petition is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar tsvn https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary Home Department Government of Tamil Nadu Secretariat, Chennai – 600 009. 2. The Director General of Police Kamarajar Salai, Chennai – 600 004. 3. The Regional Officer Central Board of Film Certification Shastri Bhavan, Chennai – 600 006. +1 cc To Mrs.K.Santhakumari (Party-in-person), Advocate, SR.8287 +1 cc To Mr.P.Wilson ASGI, Advocate, SR.8350 1 cc To The Government Pleader, SR.8481 W.P.No. 2921 of 2004 rs [co] gkg/28.3 https://hcservices.ecourts.gov.in/hcservices/