IMPORTANT POINT
It would not be proper to deny telecast of an award winning documentary merely on the ground that part II of the said documentary is certified as ‘A’ by the Censor Board.

Headnote:(i) Cinematograph Act, 1952—Constitution of India—Article 19(1)(a), 19(2)—Indian Penal Code, 1860—Sections 292 and 293—Documentary film titled ‘father, son and Holy War’—Decision of Doordarshan not to telecast the film—Film of respondent deals with the communal violence—Attempt of the film maker is to portray the miseries of the innocent victims of the communal riots—Observations of the Prasar Bharati Board that the film is not suitable due to unsatisfactory production quality and that the film has nothing specific to convey in public interest—Documentary was given two awards in National Film Festival—Documentary has won several awards in the international film festivals—Guidelines relied upon by the Doordarshan are not even framed under the Cinematograph Act—Whether it would be proper to deny telecast of an award winning documentary merely on ground that Part II of the said documentary is certified as “A” by the Censor Board—(No)—Doordarshan is being dictated by rules of malafides and arbitrariness in taking decisions with regard to the telecast of respondents film.
       Held : This film so far as our opinion goes does not violate any Constitutional provision nor will create any law and order problems as the Doordarshan fears. This movie falls well within the limits prescribed by our Constitution and does not appeal to the prurient interests in an average person, applying contemporary community standards while taking the work as a whole, the work is not patently offensive and does not proceed to deprave and corrupt any average Indian citizens mind.(Para 35)
       Hence, in our view, the correct approach to be taken here is to look at the documentary film as a whole and not in bits, as any message that is purported to be conveyed by way of a film cannot be conveyed just by watching certain bits of the film. In the present situation the documentary film is seeking to portray certain evils prevalent in our society and is not seeking to cater to the prurient interests in any person. Therefore, we have no hesitation in saying that this documentary film if judged in its entirety has a theme and message to convey and the view taken by the appellants that the film is not suitable for telecast is erroneous.(Para 37)
       We also are aware that the documentary film made by respondent no.1 has won many National and International awards. The documentary film won National Awards in two categories viz "Best Investigative Film" and "Best Film on Social Issues" in the 42nd National Film Festival 1995, conducted by the Ministry of Information and Broadcasting. The documentary film also won Special Jury Award in Israel, Japan and Canada. Keeping these facts in view we find it absurd that a documentary film that has won the National award is facing problems for it being screened on the National Television.(Para 41)
       In our opinion, the respondent has a right to convey his perception on the oppression of women, flawed understanding of manhood and evils of communal violence through the documentary film produced by him. As already noticed, this film has won awards for best investigative film and best film on social issues at the national level. The documentary film has won several awards at the international level as well. The freedom of expression, which is legitimate and constitutionally protected, cannot be held to ransom on a mere fall of a hat. The film in its entirety has a serious message to convey and is relevant in the present context. Doordarshan being a State controlled agency funded by public funds could not have denied access to screen the respondents documentary except on specified valid grounds. (Paras 42)
       We also are of the view that, Doordarshan all through the present matter has been displaying a sad reluctance in telecasting this film, which was made almost ten years ago. We can trace a history of Doordarshan not telecasting many films in spite of them being award winning films at the national and international level, this can be seen in the case of films like "In Memory of Friends", "Ram ke Naam" etc. In addition an interesting observation that can be arrived is that Doordarshan has been finding flimsy excuses time and again as clear from the facts in not telecasting the documentary film in question every time the film was sought to be aired either at the instance of the respondent or due to the orders of the court. This in our view in highly irrational and is blatant violation of the right guaranteed under Article 19(1)(a) of the Constitution. This behavior of Doordarshan would justify us in stating that Doordarshan is being dictated by rules of malafides and arbitrariness in taking decisions with regard to the telecast of the respondents film.(Para 44)
       (ii) Indian Penal Code, 1860—Sections 292 and 293—Obscenity—Test of obscenity as laid down in Hicklim case is, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and in whose hands a publication in media of this sort may fall.
       Held : Under the present Section 292 and Section 293 of the Indian Penal Code, there is a danger of publication meant for public good or for bona fide purpose of science, literature, art or any other branch of learning being declared as obscene literature as there is no specific provision in the act for exempting them from operations of those sections.(Para 24)
       The present provision is so vague that it becomes difficult to apply it. The purposeful omission of the definition of obscenity has led to attack of Section 292 of the Indian Penal Code as being too vague to qualify as a penal provision. It is quite unclear what the provisions mean. This unacceptably large grey area, common in laws restricting sexual material, would appear to result not from a lack of capacity or effort on the part of drafters or legislators. (Para 25)
       The Indian Penal Code on obscenity grew out of the English Law, which made court the guardian of public morals. It is important that where bodies exercise discretion, which may interfere in the enjoyment of constitutional rights, that discretion must be subject to adequate law. The effect of provisions granting broad discretionary regulatory powers is unforeseeable and they are open to arbitrary abuse.(Para 26)
       In our opinion, in judging the question of obscenity, the Judge in the first place should try to place himself in the position of the author and from the viewpoint of the author. The judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers. The judge should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of Section 292, IPC by an objective assessment of the book as a whole and also of the passages complained of as obscene separately.(Para 27)
       This Court has time and again adopted the test of obscenity laid down by Cockburn CJ. The test of obscenity is, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and in whose hands a publication in media of this sort may fall. Interestingly, this test of obscenity, which was laid down in the Hicklin case in 1869, is the only test in India to determine obscenity.(Paras 28 and 29)
       Therefore, one can observe that, the basic guidelines for the tier of fact must be:
       (a)whether " the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest–.;
       (b)whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
       (c)whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value.(Para 32)
       (iii) Constitution of India—Article 19(i)(a) and 19(2)—Right to freedom of expression—Reasonable restrictions—Concept of.
       Held : The Constitution of India guarantees everyone the right to freedom of expression. India is also a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof, which states:
       1.Everyone shall have the right to hold opinions without interference.
       2.Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in form of art, or through any other media of his choice. (Para 32)
       This right guaranteed by the Indian constitution is subject to various restrictions. Like, respect of the rights or reputation of others; protection of national security or of public order, or of public health or morals etc. (Para 33)
       The catchword here is reasonable restriction which corresponds to the societal norms of decency. In the present matter, the documentary film Father, Son and Holy War depicts social vices that are eating into the very foundation of our Constitutional. Communal riots, caste and class issues and violence against women are issues that require every citizens attention for a feasible solution. Only the citizens especially the youth of our Nation who are correctly informed can arrive at a correct solution. This documentary film in our considered opinion showcases a real picture of crime and violence against women and members of various religious groups perpetrated by politically motivated leaders for political, social and personal gains. (Para 34)
       (iv) WORDS AND PHRASES—Word ‘Obscenity’—Meaning—It has been defined as something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd.
       Held : The Encyclopedia definition of obscenity states, By English law it is an indictable misdemeanor to show an obscene exhibition or to publish any obscene matter, whether it be writing or by pictures, effigy or otherwise. The precise meaning of "obscene" is, however, decidedly ambiguous. It has been defined as something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd".(Para 30)

JUDGMENT

Dr. AR. Lakshmanan, J.—The appellant in the present matter is Doordarshan who have decided not to telecast the documentary film made by the respondent titled "Father, son and Holy War". The respondent is a filmmaker. The respondent no.1 in 1995 submitted his documentary film, "Father, son and Holy War", to the appellant for telecast on National network Doordarshan. Respondent no.1 was to provide a U-matic Certificate for the same to be aired by Doordarshan.

2. The documentary film was in two parts, the film dealt with social realities and issues such as patriarchy, violence, fundamentalism, suppression of women etc. Part-I was given U Certificate and Part-II was given A Certificate by the Censor Board.

3. A few lines about the film and the producer:-

Father, Son and Holy War is the third part of a trilogy of documentary films against communal violence that the author made from the mid 1980s to the mid 1990s. His two earlier films In Memory of Friends (1990) (on building communal peace in strife torn Punjab) and Ram Ke Naam/In the Name of God (1992) (on the Ayodhya crisis) looked at the question of class and caste. Both films won National Awards but both were rejected by Doordarshan on the grounds that they would create law and order problems. In the end, the author won the cases in the High Court and the films were finally telecast by Doordarshan. No law and order problems resulted and the telecasts were well received.

4. Father, Son and Holy War (1995) was also shot during this period. It looks at the question of gender along with the issue of religious violence. What triggered this way of looking was the incident of Sati in Deorala and that fact that thousands of young men were celebrating the death of Roop Kanwar. This led the author to examine the male psyche behind violence and the idea that women were property. It is common knowledge that very often sexual violence against women accompanies communal riots. This may be because the "enemys" women are seen as his property and so, worthy of abduction or destruction.

5. The first part of Father, Son and Holy War ("Trial by Fire") looks at the problems faced by Hindu and Muslim women within their own religions. Part 2 (Hero Pharmacy) examines the construction of the values of "manhood". As the film proceeds we become privy to the inner psyche of men and begin to learn how men are socialized into believing that violence is desirable. The film looks at the rhetoric of street sellers of aphrodisiac who create feelings of male insecurity and impotence in their audience and then offer their cheap medicine as a cure. It then looks at the rhetoric of communal politicians (both Hindus and Muslims) and see that they too are appealing largely to their male audiences, they too are taunting them for their impotence, but the medicine they offer for the creation of "real men" is hatred against the other community.

6. On 14.8.1996, the appellant issued a circular which stated that Doordarshan will not telecast any A certified adult or U/A feature film on it. On 28.2.1997, the respondent handed over a copy of the U-matic Certificate of the documentary film to the appellant. However, Doordarshan still refused to telecast the documentary film.

7. On 22.9.1998, the respondent no.1, filed a writ petition before the Bombay High Court against the refusal of Doordarshan to telecast the documentary film, which was disposed off by the Division Bench by directing Doordarshan to take a decision on the application of respondent no.1 within a period of six weeks.

8. A selection Committee was constituted on 10.8.1998 by the appellant to preview the documentary film produced by respondent no.1. The selection Committee observed that, "The documentary entitled Father, Son & Holy War depicts the rise of Hindu fundamentalism and male chauvinism without giving any solution how it could be checked. The violence and hatred which is depicted in the whole documentary will have an adverse effect on the

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2006 Supreme(SC) 780

IMPORTANT POINTIt would not be proper to deny telecast of an award winning documentary merely on the ground that part II of the said documentary is certified as ‘A’ by the Censor Board.

Cases Referred (4)

IMPORTANT POINT
It would not be proper to deny telecast of an award winning documentary merely on the ground that part II of the said documentary is certified as ‘A’ by the Censor Board.