1988 Supreme(Bom) 28

IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
Ramanlal Lalbhai Desai.... Petitioner.
Versus
Central Board of Film Certification, Bombay another .... Respondents.
Writ petition No. 1904 of 1986, decided on 20-1-1988.
Advocates appeared :
Ajit P. Shah with Mrs. Kalyani Pradhan, for petitioner.
B.A. Desai with Ms. S.I. Shah, for respondents.

Headnote:CINEMATOGRAPH ACT. 1952

       Sections 5-B (1) & 5-B (2)-Refusal of Certificate for exhibition of film on the ground of superstition-Validity of-Refusal is not valid and proper.

       The compelling reason at least so far as the Tribunal is concerned-for non-certification of the film is that the film was primarily based on superstition. An attempt has been made to show that the guidelines ban superstition. Clause I of the guideliness speaks of the objectives which film certification have to ensure. 1n other words, those vested with the power of censoring films have to see that the objectives enumerated in Clause I are attained. As said earlier far from reading in these objectives a curb, the language is consistent with a direction to the Board to be liberal in their outlook. They are exhorted to be free from the influence of prudishness. They are to view the film as a medium to depict changing social values.

       There is nothing in the film which can be said to constitute propagation of retrogade social themes or values. Servility in women is not canvassed. As said earlier, resistance to vicious men, even though rich and powerful is the virtue incarnated in Roma. The film does not propagate the cult of the gun by showing the Rajmata Killing her son. The son is killed so as to prevent him from committing a rape. Court was taken through Part IV-A of the Constitution which prescribes Fundamental Duties. Now these fundamental duties in the abstract are not enforceable in law. Their inclusion in the basic document is to remind us the citizens, that apart from the fundamental freedoms we enjoy, there are certain obligations which are expected to be fulfiled by us. Part IV-A does not prescribe a duty enjoining the State to bear them in mind so as to compel citizens to perform the said duties. This is in marked contrast to Article 37 which finds a place in Part IV dealing with Directive Principles of State Policy.

       Article 37 though making it clear that provisions contained in that Part shall not be enforceable by any Court, lays it down that the principles therein laid down are nevertheless fundamental in the governance of the country, and therefore, it is the duty of the State to apply these principles in making laws. Of course, Part IV-A is not a mere decoration. But that does not mean that anything in them is to be so read as to compel citizens to perform the said duties. Guidelines 1 (a), 1 (c) and 3 (1) are much too general in texture. The difficulty arises when an attempt is made to apply them to the censoring of any film. According to the Tribunal, there are permissible and impermissible superstitions. The permissible superstitions flow from accepted religions or folklore. This is a distinction which cannot be justified by the Act or by the guidelines.

       The guidelines nowhere say that the Board should so perform their task as to inculcate a spirit of rationalism amongst the film-viewers. With all respect to the Members of the Tribunal and specially to its Chairman, I have not been able to find anything in the Act or the guidelines to justify the distinction carved out in the area of superstitions. According to the Tribunals judgment, films based on fantasy and religious myths can pass muster. The reason given is that the viewers are said to be conscious of the fact that the films are for mere entertainment and not depicting the truth. This does not take into consideration viewers of different ages and degrees of intelligence. The child and the gullible require sometime to grasp the fictional nature of a film based upon folklore or mythology.

       Once superstition itself is permitted, and this because of its supposedly being within the permissible ambit, it will become a difficult question to decide where the boundary is crossed. Counsel for the respondents says that the depiction of evil spirits being in a position to trouble the hero heroine couple and the great place given to the supernatural elements in the film is a glorification of superstition. It goes against guideline 1 (a) which requires that the medium of film remains responsible and sensitive to the values and standards of society. If all depiction of the supernatural were to be eliminated, hardly any mythological or religious film would survive the censors scissor. Great effort has been made to link up the driving out of the evil sprit with the help of a Satimaa, as if the film were advocating the practice of Sati.

       That is not the case, for according to the story, the Satimaa figured is either a deity or a sage approached by the troubled couple after the evil spirit breaks the confines of the mantra given by the fakir. That Satis are glorified is one thing and, quite different a thing is it to say that wives should immolate themselves on the funeral pyre of their husbands. To sum up, the entire discussion in relation to the refusal to give a certificate for public exhibition because of its being based on and depicting superstitious practices, cannot be sustained. It is in violation of the guidelines as also sub-section (1) of Section 5-B of the Act. To the extent the refusal to give a certificate of public exhibition be based on this ground, the refusal is liable to be quashed.

       Section 5-B (2) Refusal of certification by Board Tribunal to, the exhibition of film contained sciences of heroines violating the guidelines 2(iv)-Validity of-The refusal is valid and proper.

       Petitioner contends that the film should have been granted a certificate for enabling him to exploit the same for public exhibition. The Regional Officer of the Board has tendered an affidavit to support the refusal to give a certificate. The refusal has to be scrutinised in the light of the reasons given by the Board as also the Tribunal. Goilelines have been issued by the Central Government under sub-section (2) of the Section 5-B of the Act.

       The preface to the guidelines lays down that in sanctioning films for public exhibition, the Board shall be guided by the principles enumerated. Part I lays down the objectives of the film certification. The Board is enjoined to ensure that the three objectives are adhered to. If anything, the objectives are to remind the Board of the need to be liberal in the matter of film certification. This is made clear by guideline I (b) which lays down that there should not be undue curbs an artistic expression and creative freedom. Clauses (a), (c) are general in expression, but cannot be read as prescribing and unthought of restriction upon film certification. Clause 2 is an enumeration in particulars of what the Board has to ensure. Clause (iv) decries offending human sensibilities by scenes of vulgarity, obscenity and deparavity. Clause (iv-a) ordains prevention of scenes depicting women in ignoble servility to men or glorifying such servility as a praiseworthy quality in women. Clause 3(1) speaks the obvious, when it says that the Board should Judge a film in its entirely from the point of view of its overall impact and not pay excessive attention to isolated scenes. That obscenity is not within constitutionally protected expression, goes without saying. Article (1) (a) of the Constitution confers on citizens the right to freedom of speech and expression.

       The Constitution though recognising the right of the citizess to freedom of speech and expression, makes it clear in sub-clause (2) that this right would not affect the operation of any law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, publice order, decency or marality or in relation to Contempt of Court, defamation or incitement to an offence. There very words have been reproduced in sub-section (I) of Section 5-B of the Act. This sub-section prohibits the certification of a film for public exhibits which falls within the mischief of sub-clause (2) of Article 19.

       A film is an expression and, any expression which goes contrary to decency or morality would not be protected. At the same time, concepts of morality and decency have to be understood in the proper sense. The morality and decency contemplated by Article 19 (2) is the morality and decency accetably to the community at large. Obscenity or alleged obscenity has been the subject of several decisions, the most celebrated of them being Samuel Roth v. United States of America, reported in (1956) 354 US 476. Certain expositions from that decision will be of assistance in deciding the question. It was made clear in Roth that sex and obscenity were not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest.

       Obscenity could not be judged by the effect of isolated passeges upon the most susceptible persons; but the proper test was whether an average person, applying contemporary community standards, the dominant them of the material in question when taken as a whole felt that it appealed to prurient interest. Material which had a substantial tendency to corrupt by arousing merely lustful desires, did not have the protection of freedom of expression. It is in this background that the refusal to certify film has to be praises.

       The story has been set out graphically in the petition itself. What reasons led to the refusal to certify are set out with clarity in the order of the Tribunal.

       In the face of this unambiguous material at disposal it would be a waste of time-Not to speak of the expense-to view the film. A word about the story. That the film could have been titled, goes without saying. But titles a re a matter for the producers to choose. The words "Bed room Story" by themselves are not vulgar or obscene in the sense understood by the guidelines also sub-section (1) of Section 5-B of the Act.

       The story is the usual inanity to be found in the majority of films produced by Indian Producers for the duping of the majority which makes up an audience. It is a tale of fantasy in every sense of the word. Firstly, the characters depicted in it are either overvirtuous or excessively vicious. Next, is the recourse had to sound the scenic effects to convey various overtones of the film. It was argued that the film is respect with sex. I shall take it that Para 12 of the Tribunals judgment rightly depicts portions of the film when it says that there is an unduly long exposure of Romas body outside a swimming tank, inside a bathroom in a bath-tub, in three prolonged rape and attempted rape sequences and also a number of intimate scences where the hero and heroines are shown making oassionate love in the bedroom when they are troubled by the dissatisfied spirit of the dead villain.

       Now, unnecessary exposure of the female anotomy is not in any way really connected with the film or story. To that extent the seenes showing long exposure of Romas body whether in isolation or with the dissatisfied soul and/or Ravi, will have to be deleted. There is then reference to the bedroom decorations with titillating scenes catering to the lascivious taste of the prurient. If these be mere pictures and Sculptures which are not otherwise banned, how the display of the same in the bedroom can make this film obscene. The Tribunal refers to the unusual spectacle of Roma being sexually assaulted by an invisible spirit while bathing in a tub. What is depicted is bodily movements suggesting the girl being touched at various erotic points of her body.

       This would be an open display of obscenity without any redeeming feature. Unless obscenity has some redeeming social value, it cannot be permitted. The movements of Roma while bathing in a tub to the extent it has a display of sheer eroticism violate the prohibition contained in guideline 2 (iv) which for fid scenes of vulgarity. Obscenity and depravity offending human sensibilities. The Tribunal has referred to guideline 2 (iv-a). This clause deals with visuals or words depicting women in ignoble servility to men or glorifying such servility as a praiseworthy quality in women. If anything, Roma is shown as a spirited woman who refuses to be lured by the vilain Ajitsingh. Neither can his ghost overpower her for she is shown as resisting the said ghost.

       Ajitsinghs mother, far from pandering to his weaknesses, is so virtuous that she takes out a gun and shoots him when he is trying to violate the chastity of a virtuous but humble model. It does not appear that there are any dialogues in the film propagating servility on the part of women hood of the male species. If anything in the film can be seen as an encouragemente to the docile amongst women to resist wicked men and persist in so doing though the evildoer, be their own kithand kin. To the extent the Board and the Tribunal rely upon guideline 2 (iv-a) display a non-application of mind.