In the High Court of Judicature at Madras Dated : 07..07..2006 C O R A M The Honourable Mrs. Justice Prabha Sridevan Writ Petition No.18230 of 2006 1. Sony Pictures Releasing of India Ltd., 502, Alfa Main Street, Hiranandani Gardens, Powai, Mumbai-400 076, through Appu Kumar Singh, Authorised Signatory. 2. A.V. Mohan, Proprietor, Anuroshni Films, A1/9, Bhuneshwari Apartments, Bharathidasan Colony, K.K. Nagar, Chennai-78. .. Petitioners Versus 1. The State of Tamil Nadu, through its Secretary, Home Department, Fort St. George, Chennai-9. 2. The Commissioner of Police, Egmore, Chennai-8. 3. Union of India, Ministry of Information and Broadcasting, Through Secretary, 560, A-Wing, Shastri Bhavan, New Delhi-110 001. 4. Central Board of Film Certification, Through its Chairperson, Bharat Bhawan, 91-E, Walkeshwar Board, Mumbai. .. Respondents Prayer : Petition under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus calling for the records of the second respondent pertaining to the order dated 1.6.2006 bearing Rc. No.E-2(1)/54427/20006 suspending the exhibition of the film "The Da Vinci Code", quash the same and consequently direct the respondents to permit exhibition of the film "The Da Vinci Code" in theatres in Tamil Nadu. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. A.L. Somayaji, Senior Counsel for Mr. R. Yashodhvaradhan. For Respondents : Mr. P.S. Raman, Addl. Advocate General, 1 and 2 Assisted by Mr. P. Wilson, Spl. G.P. For Respondents : Mr. V.T. Gopalan, Addl. Solicitor 3 and 4 General of India, Assisted by Mr. J. Ravindran, ACGSC. Impleaded Parties : Mr. K. Shanmugakani (M.P. No.4 of 2006) Mr. C. Johnson (M.P. No.5 of 2006) Mr. G. Rajagopalan, Senior Counsel for Mr. G.N. Sridharan (M.P. No.6 of 2006) Mr. Conscious Ilango (M.P. No.7 of 2006) Mr. Lakshmi Narayanan (SR. No.66127 of 2006) O R D E R We may search in vain, for a more haunting tragic hero than Satan in Milton's "Paradise Lost", who rails at God, "What though the field be lost? All is not lost, the unconquerable will, And study of revenge, immortal hate, And courage never to submit or yield And what is else not to be overcome?" Milton's voice was not stifled or choked for making Satan a heroic figure, no, not even for two months. In fact, in "Areopagitica", the blind poet champions free speech : "Give me the liberty to know, to utter and to argue freely according to conscience above all liberties.......... Though all the winds of doctrine were let loose to lay upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse ,in a free and open encounter". The exhibition of the film, "The Da Vinci Code", exhibited and distributed by the petitioners, which is admittedly a work of fiction, was suspended for two months by the second respondent on the ground that various sections of the Christian community have expressed their strong resentment against the alleged objectionable content of this film, which is against the Christian tenets and they https://hcservices.ecourts.gov.in/hcservices/ are likely to resort to various forms of agitation where the film is to be screened, resulting in communal tension and acts of violence, which will result in breach of peace. The petitoners are aggrieved, they say that their liberty has been unjustly prohibited by the State, and they are before this Court. 2. In 2003, the novel "The Da Vinci Code" written by Dan Brown was published. It is a work of fiction woven around an alternate interpretation of certain aspects of Christian belief and inter alia, proposes that Holy Grail is not an object, but it is actually Mary Magdelene who carried the bloodline of Christ; that this was suppressed by the Catholic Church; that there was a child born to Jesus Christ and Mary Magdelene after she married Jesus Christ; and that Leonardo Da Vinci was aware of this secret. In the book, a Harvard Symbologist Robert Langdon and a French cryptologist Sophie Neveu set out to unravel the mystery of the Holy Grail. This novel, based on which the film has been made, had been a best seller and had been sold worldwide in 44 languages. In Kerala, which has a sizeable Christian population, the book has had a very good sale and it has also been translated in Malayalam. The book has not been banned in India. The film was adapted from the book and it has been released in 65 countries worldwide, including countries with a predominantly Christian population like Italy, Spain, U.S.A. and U.K. When the film was submitted for the Censor Certificate in accordance with the provisions of the Cinematograph Act, 1952 ('Act' in short) there was an apprehension in the Ministry of Information and Broadcasting and therefore, the Honourable Minister invited a panel of Christian leaders to view the film, since the sensibilities of the Christian community in the country occupied the concern of the Minister. On 17.5.2006, the following representatives of the Christian community viewed the film : Auxiliary Bishop of the Archdiocese of Delhi, Bp. Anil Couto, Dr. Valson Thampu, Member of the National Integration Council, Dr. Donald De Souza, Deputy Secretary General of the Catholic Bishops' Conference of India, Father Henry D'Souza, Executive Secretary of the CBCI Commission for Social Communication, Father Alex Vadakumthala, Executive Secretary of the CBCI Commission for Healthcare, and Father John Noronha, Former Executive Director of Caritas India On 18.5.2006, the Catholic Bishops' Conference of India(CBCI)offered their reflections on the film. They were of the opinion that the film has a storyline which is not acceptable to the Christian community, but that the film did not claim, as the book did, that "all descriptions of art work, architect, documents and sacred rituals are accurate". The Christian leaders who had viewed the film https://hcservices.ecourts.gov.in/hcservices/ also observed that the objectionable interpretations of Christianity voiced by the character by name Teabing were not accepted by the chief protagonist Robert Langdon and that this was a redeeming feature of the film. They averred that the Christian community stood by freedom of faith and expression as well as the duty to respect the inviolability of the sacred and therefore, they requested that - "(1) A bold and lingering disclaimer, lasting at least 15 seconds, both at the beginning of the film and at the end, stating that this film is a work of pure fiction and has no correspondence to historical facts of the Christian religion, should be displayed; (2) The film should be given a 'A' Certificate. The Christian community stands by freedom of faith and expression as well as the duty to respect the inviolability of the sacred." Subsequently, the Censor Certificate was issued on 23.5.2006 and the reverse of the certificate indicated that the disclaimer as specified by the Christian leaders would be added both at the beginning and the end of the film. On 30.5.2006, the second petitioner addressed a letter to the Honourable Chief Minister of Tamil Nadu bringing to his notice, the release of the film across India on 26.5.2006 in 113 theatres without any untoward incident and also highlighting the circumstances under which the film was granted a Censor clearance. The second petitioner specifically mentioned that the Christian leaders had viewed the film and had stood by the freedom of faith and expression and indicated that the film could be screened with the disclaimer and this letter also informed the Honourable Chief Minister that the disclaimer would be added both in English and in Tamil. The second petitioner, therefore, sought the Chief Minister's support in releasing this film in Tamil Nadu and specifically stated that they were "willing to screen the film exclusively for the Administration and the representatives of the Christian community". On the next day, the impugned order came to be passed. 3. Mr. A.L. Somayaji, learned senior counsel appering for the petitioners submitted that the impugned order is a direct infringement of the fundamental right of the second petitioner to free expression guaranteed by Article 19(1)(a) of the Constitution of India and hence, the impugned order said to have been issued under Section 13(1) of the Act cannot be sustained, especially in the facts and circumstances of the case. According to the learned senior counsel, this court must bear in mind that the book was not banned; there were no protests; the film has been screened in 65 countries without any report of law and order problem; the representatives of the Christian community had viewed the film and this was done on an invitation of the Minister of Information and Broadcasting as an extraordinary measure and they had affirmed their faith in the https://hcservices.ecourts.gov.in/hcservices/ freedom of expression and gave an opinion that the film may be released subject to the disclaimer. Learned senior counsel also submitted that the right of freedom of expression guaranteed under Article 19(1)(a) of the Constitution is one of the most sacred commitments to the citizen and any order which regulates or in any way stifles it, can be reviewed by this court. The learned senior counsel submitted that such review is not subject to the restrictions of a secondary review of an administrative order. The learned senior counsel also referred to the writ petition filed under Article 32 of the Constitution before the Supreme Court, which was dismissed as having no merits and the petitioner in that writ petition had raised all the grounds for restricting the screening of the film, including the certification and the exhibition thereof, so this court is bound by the order passed in that writ petition. The learned senior counsel took this court through the various provisions of the Act and submitted that the right guaranteed under Article 19 of the Constitution should be given full effect to and cannot be taken away by any executive order passed under Section 13 of the Act. He submitted that the phrase " public order" will include "public tranquility and peace", and since the certificate has been granted by the expert body according to the guidelines prescribed under Section 5-B of the Act, there can be no further 'filtering' by the executive, and the only way to reconcile Section 5-B and Section 13 is to read down Section 13. None of the peculiar facts and circumstances that arose in this case, namely the viewing of the film by the representatives of the Christian community and their opinions were taken into account before passing the impugned order. The learned senior counsel also submitted that the fact that Section 13(2) of the Act provides for an approval of the executive order by the Central Government will not in any way dilute the right of the petitioners to approach this Court on receipt of the impugned order. It was also submitted that on the same issue, an order was passed by Goda Raghuram, J. of the Andhra Pradesh High Court on 21.6.2006 in W.P. Nos.11006, 11381 and 11575 of 2006 [Lakshmi Genesh Films & Others vs. Government of Andhra Pradesh & Others], which deals with all the questions raised here. 4. Mr. V.T. Gopalan, learned Additional Solicitor General of India submitted that so long as Section 13 of the Act is there, until that decision by the Central Goverment is taken, the writ is premature. 5. Mr. P.S. Raman, learned Additional Advocate General submitted that the basic objection to the film is that the author has woven fiction around facts and what is shown in the film is really blasphemy. He submitted that in several countries the film has been banned as in China, Egypt, Pakistan, Sri Lanka etc. The fact that the book was not banned cannot help the petitioner's case, since movies have a greater and more lasting impact on the minds of the viewers and they have a wider reach than books. The certificate under https://hcservices.ecourts.gov.in/hcservices/ Section 5 of the Act is granted on satisfaction of the conditions laid down therein, but the impugned order was issued under Section 13 on the basis of ground realities; and the two operate on different spheres. Therefore, the impugned order should be tested not qua Article 19(2) of the Constitution, but by seeing whether it satisfies the test of Section 13, and this court would be sitting not in primary review of the impugned order, but in secondary review. The learned Additional Advocate General also submitted that the word 'likely' used in Section 13 of the Act would mean 'in anticipation'', and a film which is awaiting imminent exhibition would also be a film which is "being publicly exhibited". The learned Additional Advocate General further submitted that the local authority is the only person who can decide the question of breach of peace and when the local authority has on satisfaction of the materials available made a decision, this court cannot go into the correctness of the decision, but shall only see if the decision making process is in accordance with law. The Andhra Pradesh High Court Judgment does not deal with the validity of Section 8 of the Andhra Pradesh Cinemas Regulation Act which is somewhat similar to Section 13(1) which has been invoked in this case. 6. Four miscellaneous petitions, viz., M.P. Nos.4, 5, 6 and 7 of 2006, have been filed by third parties to the writ petition, who want to get themselves impleaded in the writ petition, either to support or attack the impugned order. The learned Additional Advocate General submitted that it would not be open to the impleading petitioner who supports the writ petitioners to traverse beyond the grounds raised by the writ petitioners themselves. 7. Strictly speaking, the lis is between the writ petitioners and the State, which has issued the impugned order, but the petitioners in the above miscellaneous petitions were also heard along with the writ petitioners. 8. Mr. G. Rajagopalan, learned senior counsel appearing for the petitioner in M.P. No.6 of 2006, viz. Dr. Subramaniam Swamy, leader of a political party, who supports the writ petitioners, submitted that the entire issue involved in this writ petition has already been decided by the Supreme Court in Rangarajan's case. But, despite the repeated affirmation by the Supreme Court and the other High Courts that the freedom of speech is one of the most sacred safeguards given to the society, there has been increase in the number of cases of violation of right to freedom of speech and expression and people are being threatened not to express their opinion on a given issue. Learned senior counsel particularly highlighted that, in the State of Tamilnadu there have been instances in the past where statements have been made attacking people's belief in God and there have been books or plays which express a view contrary to the faith of persons espousing a particular religion or ridiculing a God and this State has always allowed such statements to be made or such plays or books https://hcservices.ecourts.gov.in/hcservices/ to be produced, in protection of the right to freedom of speech and it is rather surprising that the State should do a volte face in this case at the instance of this group. He also submitted that Jesus Christ and the teachings belong to the entire humanity and no single group can claim a monopoly over them. 9. The petitioner in M.P. No.4 of 2006 claims to be the President of the Christian Renaissance Movement. According to the learned counsel Mr. Shanmugakani appearing for the petitioner , the first petitioner is a foreigner and therefore not entitled to the protection of Article 19(1)(a) of the Constitution. Articles 25 and 19 of the Constitution have to be harmoniously enjoyed and fundamental rights cannot be enjoyed negatively. Learned counsel also referred to A.I.R. 1957 S.C. 620 [Ramji Lal Modi vs. State of U.P.], where the validity of Section 295-A of the Indian Penal Code was tested, and according to the learned counsel, once the Supreme Court has upheld it, any person who is likely to commit an offence under Section 295-A, I.P.C. cannot claim that his fundamental rights have been breached. 10. An Advocate, who is a Roman Catholic, has filed M.P. No.5 of 2005 seeking to implead himself in the writ petition. According to him, he has filed several suits to raise his voice against Bishops and Priests whenever he felt that they erred in their religious duties. According to him, the disclaimer card and the words that this film is a work of fiction would not take away the injury inflicted upon millions and millions of Christians. According to the learned counsel, the film was released in countries abroad which are predominantly Catholic and that is because there, the community itself is a majority community and perhaps, they had no reason to feel threatened, whereas since here the Christian community is a minority community, the screening of this film threatens them. The learned counsel submitted that history shows that Jesus Christ lived and walked the face of this earth and it also gives the details regarding the appearance of Mary Magdelene in the Bible and what she was. To concoct a story that Jesus Christ married her offends the religious sensibilities of the Christians of this State and therefore, the impugned order was rightly issued. According to him, Article 25 of the Constitution is an individual right and must be protected. It is the subjective satisfaction of the authority regarding the breach of peace that is crucial for the issuance of the impugned order, and the order impugned in this writ petition shows that there is such subjective satisfaction. 11. Finally, M.P. No.7 of 2006 is filed by Mr Martin Jayakumar, who is also an Advocate, who reiterated the submissions by the other counsel and further submitted that the object of the second petitioner is a commercial one and therefore, if at all he can claim any protection, it is under Article 19(1)(g) of the Constitution and not under Article 19(1)(a), and in any event, Article 19(1)(a) cannot https://hcservices.ecourts.gov.in/hcservices/ be invoked to protect blasphemy. 12. The relevant provisions of the Cinematograph Act, 1952 are extracted hereunder : 1"[3. Board of Film Certification] - (1) For the purpose of sanctioning films for public exhibition, the Central Government may, by notification in the Official Gazette, constitute a Board to be called the 1[Board of Film Certification] which shall consist of a Chairman and 2[not less than twelve and not more than twenty-five] other members appointed by the Central Government. (2) The Chairman of the Board shall receive such salary and allowances as may be determined by the Central Government, and the other members shall receive such allowances or fees for attending the meetings of the Board as may be prescribed. (3) The other terms and conditions of service of the members of the Board shall be such as may be prescribed." 3"[4. Examination of films – (1) Any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for a certificate in respect thereof, and the Board may, after examining or having the film examined in the prescribed manner), (i) sanction the film for unrestricted public exhibition; 4[*] 4[Provided that, having regard to any material in the film, if the Board is of the opinion that it is necessary to caution that the question as to whether any child below the age of twelve years may be allowed to see such a film should be considered by the parents or guardian of such child, the Board may sanction the film for unrestricted public exhibition with an endorsement to that effect; or] (ii) sanction the film for public exhibition restricted to adults; or 5[(iia) sanction the film for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film; or] 6[(iii) direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition under any of the foregoing clauses; or] (iv) refuse to sanction the film for public exhibition - 1 Substituted for the words "Board of Film Censors" by the Cinematograph (Amendment) Act (49 of 1981), S.3 (1.6.1983). 1 Ibid. 2 Substituted for the words "not more than nine", ibid. 3 Substituted by Cinematograph (Amendment) Act 3 of 1959. 4 Ibid. 5 Inserted by Amendment Act 49 of 1981. 6 Substituted for cl. (iii), ibid. https://hcservices.ecourts.gov.in/hcservices/ (2) No action under 7[the proviso to clause (i), clause (ii), clause (iia), clause (iii), clause (iv)] of sub-section (1) shall be taken by the Board except after giving an opportunity to the applicant for representing his views in the matter.] 8"[5B. Principles, for guidance in certifying films – (1) A 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 sovereignty and integrity of India], the security of the State, friendly relations with foreign States, public order, decenry or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. (2) Subject 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." "13. Power of Central Government or local authority to suspend exhibition of films in certain cases – (1) The lieutenant Governor or, as the case may be, the Chief Commissioner, in respect of the [whole or any part of a Union Territory and the District Magistrate in respect of the district within his jurisdiction, may, if he is of opinion that any film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension, the film shall be deemed to be an uncertified film in the State, part or district, as the case may be. (2) Where an order under sub-section (1) has been issued by the Chief Commissioner or a District Magistrate, as the case may be, a copy thereof, together with a statement of reasons therefor, shall forthwith be forwarded by the person making the same to the Central Government, and the Central Government may either confirm or discharge the order. (3) An order made under this section shall remain in force for a period of two months from the date thereof, but the Central Government may, if it is of opinion that the order should continue in force, direct that the period of suspension shall be extended by such further period as it thinks fit." 13. The guidelines issued under Section 5-B(2) of the Act for 7 Substituted for the words brakets and figures "clause (ii), clause (iii) (iv), ibid. 8 Substituted by Amendment Act 3 of 1959, S.5b. https://hcservices.ecourts.gov.in/hcservices/ Certification of Films for Public Exhibition were revised in the year 1991 and the relevant guidelines are extracted below : " GUIDELINES FOR CERTIFICATION OF FILMS FOR PUBLIC EXHIBITION (SO 836(E), dt.6-12-1991) In exercise of the powers conferred by sub-section (2) of section 5B of the Cinematograph Act, 1952 (37 of 1952) and in supersession of the notification of the Government of India in the Ministry of Information and Broadcasting No.SO 9(E), dated the 7th January, 1978, except as respects things done or omitted to be done before such supersession, the Central Government hereby directs that in sanctioning films for public exhibition, the Board of Film Certification shall be guided by the following principles :- 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; (b) artistic expression and creative freedom are not unduly curbed; (c) certification is responsive to social change; (d) the medium of film provides clean and healthy entertainments; and (e) as far as possible, the film is