[2017] H 'S.C.R. 111

MANOHAR LAL SHARMA

SANJAY LEELA BHANSALI & ORS.

(Writ Petition (Criminal) No. 191 of2017)

NOVEMBER 28, 2017

[DIPAK MISRA, CJI, A. M. KHANWILKAR AND

DR. D.Y. CHANDRACHUD, JJ.J

Constitution of India:

Art.32 - Writ petition (PIL) - Seeking direction of the court C not to exhibit a fl Im "'Padmavati" in other countries without obtaining the requisite certificate from Central Board of Film Certification (CBFC) and further to direct CBI lo register an FIR ulss. 7 of Cinematograph Act 1'l11! ss. l 53A. 295, 295A, 499 and 500 !PC rlw. s 4 of Indecent Representation of Women (Prohibition) Act, 1986 - 0 Held: The petition is liable ta he dismissed - As the scrutiny of the film is pending before CBFC, the prayers made by the petitioner have no foundation - As regards registration of FIR hy CBI is concerned, police has no role in respect of ss. 499 and 500 !PC - So far as other offences are concerned, no offence is made out - Thus, there is no basis to direct registration of an FIR.

Art.19(l)(a) - Freedom of Speech and Expression - No right is i1bsolute, but the fetters for enjoying the rights should be reasonable - The co11rt has to see what kinds of fetters are being imposed and the impact of the same - A sto1y told on celluloid or a play enacted on a stage or a novel articulated in a broad and large F canvas or epic spoken with eloquence. or a poem sung with passion or recited with rhythm has many a layer of jieedom of expression o/ thought that req11ired innovation, skill craftsmanship and individ11al originality - The creative instinct is respected and has the inherent protective right i.e. artistic licence.- Artistic licence has to be put on high pedestal, b11t te same has to be judged G objectively on case to case basis.

Public Interest Litigation:

The hunger for publicity or some other hidden motive should not propel one to file a PIL - They sully the temple of justice and H

.J ....

A intend to crea(e dents in justice dispensation sysrem - Such petition should not be filed to abuse others - The presenr case is abuse of Public interest Litigation.

Pleadings:

Constituents of pleadings - Held: When a writ petition mentions date$ af events, they constitute part of the pleadings.

Nature of pleadings - Held: Neither laxity nor lack of sobriety in pleadings is countenanced in law - Rambling of irrelewmt facts indicates u11co11trol/ed and imprecise thinking, and on certain occasions reflects a maladroit design to state certain things which are meant to sensationalize the matter - It is the duty of the Court to take strong exception to such aspects in a pleading - The pleadings in the presellt case are absolutely scurrilous, vexatious and untenable in lctH'.

Dismissing the petition, the Court

HELD: l. Writ petitions arc being filed even before the Central Board of Film Certification (CBFC), which is the statutory authority, takes a decision. This is a most unfortunate situation showing how public interest litigation can be abused. The hunger for publicity or some other hidden motive should not propel one to file such petitions. They sully the temple of justice and intend to create dent~ in justice dispensation system. That apart, a petition is not to be filed to abuse others. (Para 8Jll17-GJ

2.1 When a matter is pending or going to be dealt with by the CBFC, no one who is holding any post of public responsibility should comment on how the application for certification is to be processed. Thi1t tantamounts to creating a sense of prejudice in the mind of the CBFC. The CBFC is expected to take decisions with utmost objectivity as per the provisions contained in the Cinernatograph Act, 1952, the rules framed thereunder and the guidelines. If the Court cannot prc-j udgc the matter before the CBFC takes a decision, how anyone in public office can pre-judge the issue and make public utterances. [Para 911117-H; 118-A-BJ

2.2 The Court is governed by the basic tenets of the rule of law. When the matter is pending for grant of cerUfica\ion, if

MANOHAR LAL SHARMA v. SANJAY LEELA BHANSALI & 113

ORS.

responsible people in power or public offices comment on the A issue of certification pending consideration before the statutory authority, that is a violation of the rule of law. All concerned shall be guided by the basic premise of the rule of law and ought not to venture into violating the same. [Para 91[ 118-C-D]

3.1 The pleadings in the present petition arc ahsolutcly scnrrilons, vexatious and untenable in law, and accordingly, they arc struck off the record. The nature of pleadings in th< 11rescnt petition have the effect of potentiality that can erode I he fundamental conception of pleadings in a Court of Law. Neither laxity nor lack of sobriety in pleadings is countenanced in law.

The assertions in a petition cannot show carelessness throwing

all sense of propriety to the winds. Rambling of irrelevant facts only indicates Uf!Controllcd and imprecise thinking and exposes the inability of the counsel. On certain occasions, it reflects a maladroit design to state certain things which arc meant to sensationalize the matter which has the roots in keen appetite D for publicity. \Vhcn these aspects arc portrayed in a nonchalant manner in a petition, it is the duty of the Court to take strong exception to the same and deal it with iron hands. [Paras 2, 81[ 115-

G-H; 116-A]

3.2 When a writ petition is filed and the dates of events arc mentioned, they definitely constitute a part of the pleadings. It cannot be said that they do not form part of the pleadings.

Therefore, keeping in view the nature of the pleadings, the narrations made in pages B to E (marked as 'X' in the paper books) arc struck off and further directed that such pleadings shrill not be included anywhere in future, and shall not be mentioned anywhere else. [Para 4][116-E-F]

4. Respondent No. 1 has submitted that for the present,

the first respondent has no intention to exhibit the film in question, in certain countries having an international market, pending consideration of the application by the CBFC under the G Act. Respondent No. 2, has taken strong exception to the approach of the petitioner, in making scurrilous allegations in the petition which defames the respondent. The concern expressed by the respondents are valid because the scrutiny of the film is still pending for consideration before the CBFC. H

A Succinctly put, the prayer made in the petition in this regard has no foundation and it is bound to tloundcr and thus, the prayer loses its foundation. (Para 6]( 117-C-D)

5. Prayer is for issuance of direction to respondent No. 5 - CBI to register an FIR against respondent Nos. 1 and 2 and their team members for offence punishable under Section 7 of the Act read wilh Sccthms 153A, 295, 295A, 499 and 500 of the Penal Code read with Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. As far as Sections 499 and 500 of the IPC arc eol)ccrned, police has no role. As far as the other offences arc collcerned, it is unfathomable how any offence is made out. There is no basis for this Court to direct registration of an FIR and the prayer is absolutely misconceived. [Para 7] [117-

D-F] .

6.1 A story t&ld on celluloid or a play enacted on a stage or a novel articulated in a broad and large canvas or epic spoken D . with eloquence or a poem sung with passion or recited with rhythm

has many a layer of freedom of expression of thought that requires innovation, skill, craftsmanship and, above all, individual originality foun<lcd on the gift of imagination or reality transformed into imagination or vice versa. The platform can be different and E that is why, the creative instinct is respected and has the inherent protective right from wilhin which is called artistic licence. The artistic licence should be put on a high pedestal but the same has to be judged objectively on case to case basis. [Para 10](118-E-

F; 119-F[

Devidas Ramachandra Tuljapurkar v. State of Maharashtra and others (2015) 6 SCC 1 : [2015] 7 SCR 853; Sudhir Kumar Saha v. Commissioner of Police and another (1970) 1 SCC 149 : (1970] 3 SCR 360; State of U.P. v. lalai Singh Yadav (1976) 4 SCC 213 : (1~77] 1 SCR 616 - relied on.

6.2 It is settled in LUw that no right is absolute but the fetters for enjoying the rights should be absolutely reasonable more so when it relates to the right to freedom of speech and expression and right to liberty. The Court has to sec what kinds of fetters arc being imposed and the impact of the same. [Para 16)(121-C]

MANOHAR LAL SHARMA v. SANJAY LEELA BHANSALI & 115

ORS.

Case Law Reference A

[20 15) 7 SCR 853

[1970) 3 SCR 360

[1977] 1 SCR 616

relied on

relied on

relied on

Para 10 Para 12 Para 13

CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal)No.191 of2017.

Under Article 32 of the Constitution oflndia.

Petitioner-in-Person

Manindcr Singh, P. S. Narasirnha, ASGs, Harish N. Salv.e, Shyam Divan, Sr. Advs., Ms. Suman, Mahesh Agmwal, Akshay Patil, Vivek C Jain, Rajesh Kumar, Ms. Aastha Mehta, E. C. Agrawala, Abhishek Malhotra, Ms. Liz Mathew, Angad Duggal, Ms. Deepa Trigunayat, Advs. for the appearing parties.

The Judgment of the Court was delivered by

DIPAK MISRA, CJI I. The instant writ petition has been D . preferred under Article 32 of the Constitution of India giving it the nomenclature of public interest litigation basically with twin prayers that a film titled .. Padmavati" should not be exhibited in other countries without obtaining the requisite certificate from the Central Board of Film Certification (CBFC) under the Cinematograph Act, 1952 (for brevity, 'the Act') and the Rules and guidelines framed thereunder and further E to issue a writ of mandamus to the Central Bureau of Investigation (CBI), respondent No. 5 herein, to register an FIR against the respondent Nos.

I and 2 and their team members for offence punishable under Section 7 of the Act read with Sections I 53A, 295, 295A, 499 and 500 of the Indian Penal Code read with Section 4 of the Indecent Representation of Women (Prohibition)Act, 1986 and to investigate and prosecute them in accordance.with law.

2. lt needs to be stated at the outset that the reliefs sought are not only extremely ambitious but also the nature of pleadings in the petition have the effect of potentiality that can erode the fundamental conception

of pleadings in a Court of Law. It needs to be stated that neither laxity G nor lack of sobriety in pleadings is countenanced in law. The assertions in a petition cannot show carelessness throwing all sense of propriety to the winds. Rambling of irrelevant facts only indicates uncontrolled and imprecise thinking and exposes the inability of the counsel. On certain occasions, it reflects a maladroit design to state certain things which are H

meant to sensationalize the matter which has the roots in keen appetite for publicity. When these aspects are portrayed in a nonchalant manner in a petition, it is the duty of the Court to take strong exception to the same and deal it with iron hands.

3.. We hav~ heard Mr. Manohar Lal Sharma, petitioner-in-person, Mr. Harish N. Salve, learned senior counsel assisted by Mr. Mahesh Agarwal, learned counsel. appearing for the respondent no. I, and Mr.

Shyam Divan, learned senior counsel for the respondent no. 2. We have also taken assistance of Mr. Manindcr Singh and Mr. P.S. Narasimha, learned Additional Solicitor General for the Union oflndia.

4. Having stated so, we may now tum to the controversy. When the matter was called, Mr. Sal w, learned senior counsel, who has entered appearance for the respondent No. 1, drew our attention to the dates of events as contained in pages B to E of the petition. Be it noted, a similar inatter was filed in a different manner by the same petitioner, forming the subject matter of Writ Petition (Criminal) No. 186/2017 wherein this Cou1t has directed that such pleadings arc unwarranted. Resultantly, in that case, a substantial portion of the pleadings was struck off. Despite this, the same have been reiterated in the present petition. Mr. Manohar Lal Sharma, petitioner-in-person, would submit that they arc not a part of the pleadings. We arc absolutely shocked by such an approach and submission. When a writ petition is filed and the dates of events are mentioned, they definitely constitute a part of the pleadings. It cannot be said that they do not form part of the pleadings. This contention is absolutely untenable. Therefore, keeping in view the nature of the pleadings, we strike off the narrations made in pages B to E (marked as x in the paper book), and further direct that such pleadings shall not be included anywhere in future, and shall not be mentioned anywhere else.

5. On the last occasion, while dealing with the writ petition filed by the petitioner, we had clearly stated that when the grant of certificate is pending before the CBFC, any kind of comment or adjudication by this Court would be pre-judging the matter. We may fruitfully reproduce a passage from the order dated 20. l l .2017 passed in Writ Petition (Criminal) No. 186/2017:-

"ln the course of hearing, we have been apprised that the film in question, i.e., 'Padmavati' has not yet received the Certificate from the Central Board of Film Certification.

MANOHAR LAL SHARMA v. SANJAY LEELA BHANSAL! & 117

ORS. [D!PAK MISRA, CJ!]

In view of the aforesaid, our interference in the writ petition will A tantamount to pre-judging the matter which we are not inclined to do. The writ petition is accordingly disposed of."

6. What is submitted by Mr. Manohar Lal Sharma at this juncture is that the first respondent is planning to exhibit the film in question in certain countries which have an international market. Mr. Salve has B submitted that for the present, the first respondent has no intention to do any such thing, pending consideration of the application by the CBFC under the Act. Mr. Divan, learned senior counsel appearing for the respondent No. 2, has taken strong exception to the approach of the petitioner, in making scurrilous allegations in the petition which defames the respondent. We appreciate the concern expressed by the learned C counsel for the respondents because the scrutiny of the film is still pending for consideration before the CBFC. Succinctly put, the prayer made in the petition in this regard has no foundation and it is bound to flounder and we so hold. Thus, the prayer loses its foundation.

7. The controversy docs not end there.As stated earlier, the further D prayer is for issuance of direction to the respondent no. 5 - CBI to register an FIR against respondent Nos. 1 and 2 and their team members for offence punishable under Section 7 of the Act read with Sections !53A, 295, 295A, 499 and 500 of the Indian Penal Code read with Section 4 of the Indecent Representation of Women (Prohibition)Act, 1986. As E far as Sections 499 and 500 of the !PC is concerned, police has no role.

As far as the other offences are concerned, it is unfathomable how any offence is made out. There is no basis for this Court to direct registration of an FIR and we have no hesitation in stating that the prayer is absolutely misconceived.

8. At this stage, we arc obligated to state that writ petitions arc being filed even before the CBFC, which is the statutory authority, takes a decision. This is a most unfortunate situation showing how public interest litigation can be abused. The hunger for publicity or some other hidden motive should not propel one to file such petitions. They sully the temple

. of justice <llld intend to create dents in justice dispensation system. That G apart, a petition is not to be filed to abuse others. The pleadings, as we have stated earlier, are absolutely scwTilous, vexatious and untenable in law, and we, accordingly, strike them off the record.

9. We must say in quite promptitude that when a matter is pending or going to be dealt with by the CBFC, no one who is holding any post of H

public responsibility should comment on how the application for certification is to be proces>ed. That tantamounts to creating a sense of prejudice in the mmd of the CBFC. The CBFC is expected to take decisions wi\h utmost objectivity as per the provisions contained in the Act, the rules framed thereunder and the guidelines. If the Court cannot pre-judge the matter before the CBFC takes a decision, we fail to comprehend how anyone in public office can prc-j udgc. the issue and make public utterances. They arc not supposed to do so, and this position in law is accepted and acceded to by Mr. Maninder Singh and Mr. P.S.

Narasimha, learned Additional Solicitors General, whose assistance we have sought. It should be borne in mind that we arc governed by the basic tenets of the rule oflaw. When the matter is pending for grant of certification, if responsible peopl-c in power or public offices comment on the issue of certification pending consideration before the statutory authority, that is a violation of the rule of law. All concerned shall be guided by the basic premise of the rule of law and ought not to venture . into violating the same. We say nothing more and nothing less, for the present.

10. Another aspect needs to be highlighted. A story told on celluloid or a play enacted on a stage or a novel articulated in a broad and large canvas or epic spo!>en with eloquence or a poem sung with passion or recited with rhythm has many a layer of freedom of expression of thought that requires innovation, skill, craftsmanship and, above all, individual originality founded on the gift of imagination or reality transformed into imagination or vice versa. The platform can be different and that is why, the creative instinct is respected and has the inherent protective right from within which is called artistic licence. In this regard, we may profitably reproduce a passage from Devidas Ra111aclla11dra T11/japurkar v. State of Malwra.slltra a11d others':-

"As for as the words "poetic licence", are concerned, it can never remotely mean a licence as used or under.stood in the language of law. There is no authority who gives a licence to a poet. These arc words from the realm of literature. The poet assumes his own freedom which is allowed to him by the fundamental concept of poetry. He is free to depart from reality; fly away from grammar; walk in glory by not following systematic metres; coin words at his own will; use archaic words to convey thoughts or attribute

• r201s16 sec 1

MANOHAR LAL SHARMA v. SANJAY LEELA BHANSALI & 119

ORS. [DIPAK MISRA. CJI]

meanings: hide ideas beyond myths which can be absolutely unrealistic; totally pave a path where neither rhyme nor rhythm prevail; can put serious ideas in satires. ifferisms, notorious repartees; take aid of analogies, metaphors, similes in his own style, compare like "life with sandwiches that is consumed everyday" or "life is like peeling of an onion", or "society is like a stew": define ideas that can balloon into the sky never to come down; cause violence to logic at his own fancy; escape to the sphere of figurative truism; get engrossed in the "universal eye for resemblance", and one can do nothing except writing a critical appreciation in his own manner and according to his understanding.

When a poet says "I saw eternity yesterday night", no reader would understand the term "eternity" in its prosaic sense. The Hamlctian question has many a layer; each is free to confer a meaning: be it traditional or modern or individualistic. No one can stop a dramatist or a poet or a writer to write freely expressing

his thoughts, and similarly none can stop the critics to give their 0 comments whatever its worth. One may concentrate on Classical facets and one may think at a metaphysical level or concentrate on.Romanticism as is understood in the poems ofKeats, Byron or Shelley or one may dwell on Nature and write poems like William Wordsworth whose poems, say some, arc didactic. One may also venture to compose like Alexander Pope or Dryden or get into individual modernism like Ezra Pound, T.S. Eliot or Pablo Neruda.

That is fundamentally what is meant by poetic licence."

We may categorically state that the artistic licence should be put on a high pedestal but the same has to be judged objectively on case to case basis. F

1 I. In a Grammar of Politics, Harold J. Laski has stated:

" ... My freedoms are avenues of choice through which I may, as I deem fit, construct for myself my own course of conduct. And the freedoms I must possess to enjoy a general liberty arc those which, in their sum. will constitute the path through which my best G self is capable of attainment. That is not to say it will be attained. lt is to say only that I alone can make that best self. and that without those freedoms I have not the means of manufacture at my disposal."

12. In S111l/1ir Kumar Saha v. Commissioner of Police and another, the Collrt has observed:-

"The freedom of the individual is of utmost importance in any civilized sqciety. It is a human right. Under our Constitution it is a guaranteed right. It can be deprived of only by due process of B law. The power to detain is an exceptional power to be used under exceptional circumstances."

13. InStateofU.P. v. LalaiSingh Yadav3, Krishna Iyer. J opined:-

"Rights and responsibilities are a complex system and the framers of our Constitution, aware of the grammar of anarchy, wrote down reasonable restrictions on libertarian exercise of freedoms."

14. Recently, in Nac/1iketa Wal/1ekur v. Ce11tn1/ Board of Film Certijicatio11 & A11r', the Court has held:-

"The thrust of the matter is whether this Court should entertain the writ petition and pass an order ofinjunction directing the CBFC to delete the clip and further not to get the movie released in theaters on 17"' November, 2017. It is worthy to mention that freedom of speech and expression is sacrosanct and the said right should not be ordinarily interfered with. That apart, when the respondent No.I, CBFC, has granted the certificate and only something with regard to the petitioner, which was shown in the media, is being reflected in the film, this Court should restrain itself in not entertaining the writ petition or granting injunction."

Andagain:-

"Be it noted, a film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind. The human history records that there arc many authors who express their thoughts according to the choice of their words, phrases, expressions and also create characters who may look absolutely different than an ordinary man would conceive of. A thought provoking film should never mean that it has to be didactic or in

'(1970) 1 sec t49 '(1976) 4 sec 213 H •w.P.(C)No. lll9of20l7

MANOHAR LAL SHARMA v. SANJAY LEELA BHANSALI & 121

ORS. [DIPAK MISRA, CJI]

any way puritanical. It can be expressive and provoking the A conscious or the sub-conscious thoughts of the viewer. If there has to be any limitation. that has to be as per the prescription in

law."

15. When we say so, we arc also reminded of the line spoken by Benjamin Cardozo'. which is to the following effect:- B

"Complete freedom - unfettered and undirected - there never

is.'~

16. It is settled in law that no right is absolute but the fetters for enjoying the rights should be absolutely reasonable more so when it relates to the right to freedom of speech and expression and right to liberty. The Court has to see what kinds of fetters are being imposed and the impact of the same. ·

17. Ordinarily, we would have imposed costs. As the petitionerin-person is a practising counsel in this Court, we refrain from doing so.

However, we caution him to be careful in future.

18. In view of the aforesaid analysis, the writ petition is dismissed with no order as to costs.

Kalpana K. Tripathy Pet it ion dismissed.

'CARDOZO, Benjamin N., The Growth of the Law (New Haven: Yale University Pres8, 1924), p.61 .