IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 05-08-2005 CORAM THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM AND THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR WRIT PETITION No.24430 OF 2004 Ms.A.Arulmozhi ... Petitioner -vs- 1.The Government of India, rep.by Secretary to Government, Ministry of Information and Broadcasting, New Delhi. 2.The Central Board of Film Certification, rep.by its Regional Officer, 35, Haddows Road, Shastri Bhavan, Chennai- 600 006. 3.S.Annai Mari Madha Creations, rep.by Sammanasu Pandian, 18, ID Jamal Apartments, Nellaganda Metha Street, Chennai-600 017. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of mandamus. For petitioner : Mr.V.Ramasubramanian For respondents 1 & 2: Mr.S.Manikumar, Senior Central Government Standing Counsel. For respondent 3 : Mr.Ezhilmani https://hcservices.ecourts.gov.in/hcservices/ O R D E R M.KARPAGAVINAYAGAM,J. Tamil feature film "New", produced by Annai Mari Madha Creations, third respondent herein, was released for public exhibition in the second week of July,2004, throughout Tamil Nadu. 2. Ms.Arulmozhi, an advocate practising in this Court, after seeing the movie, wondered as to how the film was certified for public exhibition by the Central Board of Film Certification, even though the film was full of dual meaning dialogues and obscene visuals, appended by vulgarity and depravity, obviously catering to the baser instincts of the viewers. As the certificate for public exhibition had been issued in gross violation of the provisions of the Cinematograph Act,1952, she sent a representation to the Government of India, the first respondent herein, on 23.08.2004, bringing to its notice about the violations, requesting to revoke the certificate, by invoking the revisional powers under Section 6 of the Cinematograph Act. Since she felt that the action on representation may take some time and if such time is allowed the film would be continued to be screened thereby causing imminent danger to the public morality and unable to bear the cultural degradation due to this film, she has rushed to this Court and filed this Writ Petition. 3. The main prayer in this Writ Petition is for issuance of a writ of mandamus, directing the Government of India, Ministry of Information and Broadcasting, New Delhi, first respondent herein, and the Central Board of Film Certification, Sastri Bhavan, Chennai, second respondent herein, to revoke the Censor Certificate for public exhibition, issued to the Tamil Feature Film "New", produced by S.Annai Mari Madha Creations, the third respondent herein. 4. Mr.V.Ramasubramanian, learned counsel for the petitioner, seeking for a mandamus for revocation of the Censor Certificate issued to the film, would submit as follows : "(a) The theme of the picture is about a child of 8 years age being put to scientific tests, thereby getting transformed to the youth of 28 years only during nights and getting married to a girl of 20 years of age and begetting a child. There are several scenes in the film, which are vulgar and obscene, which cater to the baser instincts of men. The countless number of dual meaning dialogues in the film show the sexual perversions and the use of a child artist in the lead role depicts child abuse. The second respondent has sanctioned the public exhibition of the film, unmindful of the evil influence that it could have on young minds. https://hcservices.ecourts.gov.in/hcservices/ (b) The scenes in the film depict indecency and vulgarity and consequently the obscenity would make the film liable for revocation of the certificate. Under Section 5 B(1) of the Cinematograph Act,1952, a film shall not be certified for public exhibition by the competent authority, if the film or any part of it is against public order, decency or morality. (c) Under Section 5 B (2) of the Act, the Government of India issued some guidelines for ensuring the Board of Film Certification to find out the fitness for issuance of the said certificate. Under these guidelines, the Board of Film Certification shall ensure that the scenes depicting the child abuse, vulgarity, obscenity or depravity and the dialogues giving the dual meaning, catering to the baser instincts, are not allowed in the film. In other words, these guidelines mandate the Censor Board to ensure that human sensibilities are not offended by vulgarity and obscenity or depravity and that such dual meaning words, which cater to the baser instincts, are not permitted to be screened. (d) The entire story-line of the film is about an eight year old boy becoming a youth by scientific adventure and, during nights, he makes love with a girl of 20 years, getting married to her and begetting a child. Thus, the very theme of the film offends the human sensibilities by its vulgarity and indecency. Therefore, respondents 1 and 2 may be directed to withhold the certificate." 5. On the other hand, Mr.S.Manikumar, learned Senior Central Government Standing Counsel, appearing for respondents 1 and 2, would submit the following, by way of reply : "(a) The Examining Committee, comprising four Members and an Examining Officer, examined the film by strictly applying the guidelines under Section 5 B of the Act and recommended for grant of 'A' Certificate to the film, subject to deletions of the objectionable portions, and restricted it to adult audience of 18 years and above. (b) Though the film contains such sexually coloured remarks and adult oriented dialogues and visuals, the Board allowed such things, keeping in mind that the adults or matured persons can be permitted to view with some restrictions, without unduly curbing the freedom of the film-maker, especially when the Committee felt that the innovative ideas and the theme of the film have to be encouraged. As such, issuance of certificate cannot be said to be in violation of the mandatory provisions." 6. Mr.Ezhilmani, representing Mrs.Maheswari, learned counsel on record for the third respondent/film producing agency, defending the issuance of certificate, would submit as follows : https://hcservices.ecourts.gov.in/hcservices/ "The Writ Petition is not maintainable, especially when a representation dated 23.08.2004 has been sent by the petitioner to the first respondent and since the scenes and the dialogues in the film go with the story-line, the second respondent issued Censor Certificate with restricted exhibition by giving 'A' Certificate, after suggesting for deletions of some portions of the film, and, accordingly, the suggested cuts have been implemented in total compliance of the orders of the authority and the intention of making a film is to entertain the masses and, therefore, the third respondent's right to freedom of expression through the film cannot be stifled." 7. In this context, it is to be stated that even before the commencement of the arguments made by the learned counsel for the parties, the movie was specially screened for us in a preview theatre on the date fixed and we saw the movie along with the learned counsel for the parties. 8. On the date of next hearing, we heard the learned counsel for the parties at length. They also cited a number of authorities, to substantiate their respective pleas. 9. Learned counsel for the petitioner would cite the following authorities : (i) 1989 WRIT LAW REPORTER 170 (S.RANGARAJAN v. P.JAGJIVAN RAM & OTHERS); (ii) AIR 1990 ANDHRA PRADESH 100 (B.K.ADARSH v. UNION OF INDIA AND OTHERS); and (iii) 1994 WRIT LAW REPORTER 835 (CENTRAL BOARD OF FILM CERTIFICATION v. YADAVALAYA & ANOTHER). 10. Learned Senior Central Government Standing Counsel, appearing for respondents 1 and 2, would cite the following authorities : (i) 1970 (2) SUPREME COURT CASES 780 (K.A.ABBAS v. THE UNION OF INDIA AND ANOTHER); (ii) 1980 (1) SUPREME COURT CASES 43 (RAJ KAPOOR AND OTHERS v. STATE AND OTHERS); (iii) 1985 (4) SUPREME COURT CASES 289 (SAMARESH BOSE AND ANOTHER v. AMAL MITRA AND ANOTHER); https://hcservices.ecourts.gov.in/hcservices/ (iv) 1989 (2) SUPREME COURT CASES 574 (S.RANGARAJAN v. P.JAGJIVAN RAM AND OTHERS); (v) 1996 (4) SUPREME COURT CASES 1 (BOBBY ART INTERNATIONAL AND OTHERS v. OM PAL SINGH HOON AND OTHERS); and (vi) AIR 2002 PUNJAB AND HARYANA 25 (SANT ESHAR SINGH v. UNION OF INDIA AND OTHERS) 11. Learned counsel for third respondent would cite the authorities, as given below : (i) 1998 (3) SUPREME COURT CASES 410 (ODYSSEY COMMUNICATIONS PVT. LTD. V. LOK VIDAYAN SANGHATANA AND OTHERS); and (ii) 1992 (3) SUPREME COURT CASES 637 (LIFE INSURANCE CORPORATION OF INDIA V. PROF.MANUBHAI D SHAH) 12. We have carefully considered the submissions made by the learned counsel for the parties and perused the records and the rulings. 13. The core of the matter centres around the following questions : (1) Whether the film "New", which is in question, is produced in accordance with the guidelines issued under Section 5 B of the Cinematograph Act,1952 ? ; (2) whether the Censor Certificate, issued by the second respondent/Central Board of Film Certification, is in consonance with the provisions of the Act ? and (3) Whether this Court could issue mandamus, directing the respondents 1 and 2 to revoke the Censor Certificate, issued to this film for public exhibition ? 14. Let us, at the outset, look into the salient features and relevant provisions of the Act, which deal with the conditions for issuance of Censor Certificate to a film for public exhibition. 15. The Cinematograph Act,1952, was enacted to make the provisions for certification of cinematograph films for exhibition and for regulating the exhibitions. For the purpose of examination of https://hcservices.ecourts.gov.in/hcservices/ films, for public exhibition, the Central Government constituted a Board called as Board of Film Certification, which consists of Chairman and other members. 16. The procedure of examination and certification is dealt with in Section 5 B of the Cinematograph Act,1952. Under Section 5-B (1), a film shall not be certified for public exhibition if, in the opinion of the competent authority 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, decency or morality or involves defamation or contempt of court or is likely to incite the commission of any offence. Under Section 5-B(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 the films for public exhibition. 17. Although freedom is a constitutional right falling under Article 19 (1) of the Constitution of India, which says that all persons shall have freedom of speech and expression, this right is subject to reasonable restrictions on the grounds set out in Article 19 (2) of the Constitution. In other words, even though the basic principle in certifying the freedom of film-maker is not curtailed, it is restricted within the reasonable restrictions under Article 19 (2) of the Constitution, by empowering the Central Government to issue directions to the Board to follow the general principles, while granting the Censor Certificate. 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 and are quoted as follows : (1) No picture shall be certified for public exhibition which will lower the moral standards of those who see it. (2) Standards of life, having regard to the standards of the country and the people to which the story relates, shall not be so portrayed as to deprave the morality of the audience. (3) The prevailing laws shall not be so ridiculed as to create sympathy for violation of such laws. 18. On the basis of these principles, guidelines were framed, in exercise of the power conferred by sub-section (2) of Section 5-B of the Cinematograph Act,1952. The guidelines, which are relevant for this case, are given below: https://hcservices.ecourts.gov.in/hcservices/ Section 5(B)(2) : 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) xxxx (c) xxxx (d) medium of film provides clean and healthy entertainment; and (e) as far as possible, the film is of aesthetic value and cinematically of a good standard. 2. In pursuance of the above objectives, the Board of Film Certification shall ensure that- (i) xxxx (ii)xxxx (iii) scenes- (a) showing involvement of children in violence as victims or as perpetrators or as forced witnesses to violence, or showing children as being subjected to any form of child abuse; (b) xxxx (c) xxxx (iv)xxxx (v) xxxx (vi)xxxx (vii) scenes tending to encourage, justify or glamorize consumption of tobacco or smoking are not shown ; (viii) human sensibilities are not offended by vulgarity, obscenity or depravity; (ix) such dual meaning words as obviously cater to baser instincts are not allowed ; (x) scenes degrading or denigrating women in any manner are not presented. 3. The Board of Film Certification shall also ensure that the film- (i) is judged in its entirety from the point of view of its overall impact; and (ii) is examined in the light of the period depicted in the film and the contemporary standards of the country and the people to which the film relates, provided that the film does not deprave the morality of the audience. https://hcservices.ecourts.gov.in/hcservices/ 19. A reading of the above guidelines issued by the Government of India, in exercise of the power conferred under Section 5-B(2) of the Act would clearly indicate that a mandate has been issued to the Censor Board to ensure that the medium of film should remain responsible and sensitive to the moral values and standards of society, giving a clean and healthy environment and, at any cost, the human sensibilities are not offended by obscenity or depravity and that such dual meaning words as obviously cater to baser instincts and such scenes showing the children as being subjected to any form of child abuse are not allowed in the film. 20. The guidelines aforementioned have been carefully drawn. They require the authorities concerned that the film certification to be responsive to the values and standards of society and take note of social change. They are required to ensure that the artistic expression and creative freedom are not unduly curbed and the film must be judged in its entirety from the point of view of its overall impact. It must also be judged in the light of the period depicted and the contemporary standards of the people to whom it relates, but it must not deprave the morality of the audience. 21. With these legal parameters in mind, we have to look into the theme, content, dialogues, songs and dance sequences in the film "New", which is in question, in order to find out whether the statutory provisions and guidelines have been violated, so as to give a direction to the authority concerned to revoke the certificate. 22. Before proceeding further into the point in issue, let us now look into the synopsis of the story of this film "New": "An eight year old boy by name Pappu is the son of Sanjay Swaroop and Indira. Pappu has an elder brother and a friend Deepak. Pappu's mother used to invariably scold Pappu and punish him for his mischievous activities every now and then. One day, when Pappu takes off the fuse in the electric meter, the entire house becomes dark. On noticing that Pappu was responsible for the same, he was scolded by his mother and everybody. Feeling disgusted that he was hated by his mother and others, Pappu went out of the house and attempted to commit suicide. In that city, two scientists, namely, Alwa Odison and Sir CV were living. They were interested in new inventions. The scientists incidentally came to the spot, where the boy attempted to commit suicide and, on seeing his attempt, both of them saved him and took him to their house. Then, due to their scientific adventure through a medicine, he was made a man of 28 years and he was renamed as Vichu. He got a job in a doll factory. Priya, daughter of the owner of the factory, was loving Vichu, but Vichu was unable to understand the said https://hcservices.ecourts.gov.in/hcservices/ love. Seema, Priya's friend, gave her various ideas for testing the manliness of Vichu. All the tests proved that Vichu was childish. Priya made up her mind and started loving Vichu strongly and ultimately married him. In the meantime, Vichu came to know that his mother (Pappu's mother) was bedridden. He went and visited his mother, without divulging his identity. Then only, he came to know that mother was loving him so much and because of his separation, she got bedridden. Then, Vichu pleaded the scientists to transform him back as Pappu, an eight year old boy. Accordingly, they commenced the transformation test. When they transformed, the scientific test did not succeed fully and, consequently, he became the boy only in the day time and, during night time, he continued to be a man of 28 years. As Pappu, he went to his home and spent the time with his mother. During day time, he goes to school. During night hours, he comes to Priya's house and behaves as the husband of Priya. In the meantime, his friend Deepak found out the secret and informed his parents. The years passed by. There was no remedy for Vichu. Then, Pappu, the boy, became a man in the day time and old man in the night hours." This is the gist of the story. 23. The main contention put forth by the learned counsel for the petitioner is that the entire story line of the film is about an eight year old boy becoming a man of 28 years (by scientific misadventure) only during nights exclusively for the purpose of making love with a girl of 20 years, getting married to her and begetting a child and, as such, the very theme of the film offends human sensibilities by its vulgarity and sexual perversions. It is further contended that the public order, decency and morality are emphasised in Section 5-B(1) and the requirement of guidelines given under Section 5-B(2) is that the theme should remain responsible and sensitive to the values and standards of the society and the scenes of obscenity, vulgarity, dual meaning dialogues catering to the baser instincts and the scenes of sexual abuse of children, which are not to be permitted, have been thrown to the winds by the very theme and contents of this film. 24. While considering the question whether the theme of the film offends the human sensibility, it would be better to look into the various scenes pointed out by the learned counsel for the petitioner through the separate typed set of papers furnished through Annexure 'A', to see whether those scenes would depict obscenity, vulgarity through visuals and dual meaning dialogues, catering to the baser instincts of the viewers. https://hcservices.ecourts.gov.in/hcservices/ 25. At this juncture, we have to take note of the purport of the guidelines issued by the Central Government under Section 5-B(2) and also the duties of the Board and the Courts, as pointed out by the Supreme Court in the various decisions cited supra, while deciding the fitness of the film for certification, as under : (i) The standard to be applied by the Board or Courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive manner. The concept of obscenity would differ from country to country, depending on the standards of morals of contemporary society. What is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals may be obscene in our country. The Court must take an overall view of the matter complained of as obscene in the settling of the whole work, but the matter charged as obscene must also be considered by itself and separately to find out whether it is so gross and its obscenity so pronounced that it is likely to deprave and corrupt the viewers, whose minds are open to influence of this sort; and (ii) In judging the question of obscenity, the Judge, in the first place, should try to place himself in the position of the author of the film. From the viewpoint of the author of the film, the Judge should try to understand what is it that the author seeks to convey and what the author conveys has any literary and artistic value. The Judge should thereafter place himself in the position of a viewer and should try to appreciate what kind of possible influence or impact the film is likely to cause in the minds of the viewers. Thereafter, the Judge should apply his judicial mind dispassionately to decide whether the film in question can be said to be obscene." 26. Bearing the above principles laid down in mind, we looked at every scene in the film. As already stated, the film has been specially screened for us and, as such, taking overall view of the entire sequences of the film and theme, we now go into some of the scenes to find out whether there is any child abuse or obscenity with dual meaning dialogues, catering to the baser instincts of the viewers. 27. In the Annexure 'A', the petitioner has given 29 sequences with details of the dialogues. Let us now deal with the selected scenes out of those sequences, one by one: https://hcservices.ecourts.gov.in/hcservices/ (1) In the introductory scene, a dog with two tails is shown. The growth of the two tails in a dog is the creation of a scientist. When the scientist is questioned about the purpose of two tails, he replies with sarcastic smile that he wanted to make some other part of the body double, but could make only the tail double. (a) According to the learned counsel for the petitioner, by this dialogue, the author of the film wanted to convey to the audience that the scientist wanted to create two private parts, but he could make only the tail double. (b) Learned counsel for the third respondent would explain that it was not the private part which the scientist had in mind and what was to be doubled according to him was the head, as the life revolves around head and tail and, ultimately, what was possible for him was only the tail. (c) If this explanation is true, the author of the film could very well make the scientist to say that he tried to make the head double. But, he has not chosen to it. On the other hand, he omitted to mention the part, which was to be doubled, and gives a peculiar and sarcastic smile to make the audience infer that the part he mentioned was only the private part of the body. Hence, the argument made by the learned counsel for the petitioner cannot be rejected as untenable. (2) In the next sequence, a small coconut tree is shown in the scientist's laboratory. The Income Tax Officer, who came there on noticing it, questioned the scientist as to why the coconut tree is made as small. Then, the scientist's friend says that their experiment itself is making small things big and big things small. On seeing his reaction with smile, the scientist and his friend with a smile remark "we know what you want to make big?". Pointing out this scene depicting the insinuating smile given by the Income Tax Officer by raising his eyebrows, the author wanted to convey the news to the audience through the scientist and his friend that the Income Tax Officer thought about some other part of the body to be made as big. (a) According to the learned counsel for the petitioner, the insinuating smile of the Income Tax Officer and the remarks made by the scientist and his friend were made as a sequence in the film in order to make the audience to imagine about some