Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 213

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DIPANKAR DATTA, M.S. KARNIK, JJ.
Hiten Dhirajlal Mehta and Ors. - Petitioners
Versus
Bhansali Production and Ors. - Respondents
Public Interest Litigation (L) No. 4336 of 2022 With Public Interest Litigation (L) No. 5227 of 2022 With Writ Petition (L) No. 5235 of 2022 (Not on Board)
Decided On : 23-02-2022

Advocates Appeared:
For the Petitioner: Mr. Ashok Saraogi a/w Mr. Anand Mishra, Ms. Radhika Chamaria i/by Kruti Bhavsar, Ms. Dhruti M. Kapadia, Mr. Y.C. Naidu a/w Mr. Sarosh Damania, Mr. Nishank Barolia, Chaitravi Pai, Mr. Amol Surve and Afrin Shaikh.
For the Respondents:Mr. Ravi Kadam, Senior Advocate a/w Mr. Parag Khandhar and Ms. Prachi Garg i/by DSK Legal, Mr. Ravi Kadam, Senior Advocate a/w Mr. Ameet Naik, Madhu Gadodia, Mr. Deepak Deshmukh i/by Naik Naik & Co., Mr. Anil C. Singh, Addl. Solicitor General a/w Mr. Advait M. Sethna, Mr. Aditya Thakker, Ms. Anusha Amin, Mr. Pranav Thackur, Mr. Tanay Mandot, Mr. Rangan Majumdar and Mr. Sandeep Raman, Ms. Uma Palsuledesai, AGP.

Point of Law : Once film is granted certificate by competent statutory authority, i.e. Board, producer or distributor of the film has every right to exhibit film in a hall unless, of course, said certificate is modified/nullified by a superior authority/Court.

Headnote:
Constitution of India, 1950 - Article 226 - Cinematograph Act, 1952 - Section 3, 5-B(2) and 8 - Cinematograph (Certification) Rules, 1983 - Rule 32 Public interest litigations - Gangubai Kathiawadi - Life of “Gangubai” - Film - Certificate - Guidelines for Certification of Films for Public Exhibition - Grievance raised in public interest litigations and writ petition has its genesis in certification of a film titled “Gangubai Kathiawadi” (“film”) by Board of Film Certification (“Board”) constituted by Central Government under section 3 of Act, 1952 for public exhibition - Attempt of petitioners is not to stall release of film on date scheduled, but to tinker with freedom of expression of those behind production of film on specious ground that a particular dialogue, the title of film as well reference to a particular area as a red-light area would hurt sentiments of people belonging to North-Eastern states of country, people hailing from Kathiawad in Saurashtra, Gujarat and people residing in Kamathipura in South Mumbai - Trailer of film was uploaded on YouTube wherein lead actress is seen to be visiting a dentist - Character of dentist is played by an actor from North-East and upon dentist urging actress to open her mouth wide, she responds by saying “PURA KA PURA CHINA MUH ME GHUSAYEGA KYA” - According to petitioner, said dialogue clearly and directly intends to connect North-East person/actor to China in spite of he being an Indian.
Finding of the Court :
Public exhibition can only be restrained by the Central Government if an approach is made under Rule 32 of the Rules read with section 6 of the Act or upon a challenge being mounted to the certificate before a Court exercising jurisdiction under Article 226 of the Constitution and obtaining a stay of the certificate. Once the film is granted certificate by the competent statutory authority, i.e., the Board, the producer or distributor of the film has every right to exhibit the film in a hall unless, of course, the said certificate is modified/nullified by a superior authority/Court. Any move of any body, group, association or individual to assume the position of the certificate granting authority has to be discouraged and nipped in the bud - Gangu became one of the most sought-after and well-paid commercial sex worker in Kamathipura. In her later life, Gangu came to be known as Gangubai, Matriarch of Kamathipura. A portion of the book, page 79, has been relied on by petitioner in PIL(L) - Board prior to granting certification ensured that film has been judged and examined in light of contents of clauses (i) and (ii) of paragraph 3 of Guidelines. An audience gathering to view film has to see events bearing in mind the period to which such events relate. If “Kamathipura” was a red-light district at any point of time prior to nation gaining independence or immediately thereafter, and is so referred to in film, that would not automatically lead to conclusion that area remains to be so even after several decades of independence. Developments that have taken place over years in area cannot be ignored and an opinion of nature be formed, which the petitioners apprehend, so as to warrant interference and for making directions in the manner as prayed by two petitioners.
Result : Writ Petition and Public Interest Litigation dismissed.

JUDGMENT :

Dipankar Datta, J.

1. By this common judgment and order, we propose to decide Public Interest Litigation (L) No. 4336 of 2022 and Public Interest Litigation (L) No. 5227 of 2022 together with Writ Petition (L) No. 5235 of 2022.

2. Writ Petition (L) No. 5235 of 2022 has been placed before us in terms of an order dated 23rd February, 2022 passed by a coordinate Bench of this Court. Their Lordships having been informed of pendency of Public Interest Litigation (L) Nos. 4336 and 5227 of 2022 desired that the writ petition be placed before this Bench for analogous hearing.

3. The grievance raised in the public interest litigations and the writ petition has its genesis in certification of a film titled “Gangubai Kathiawadi” (hereafter “the film”) by the Board of Film Certification (hereafter “the Board”) constituted by the Central Government under section 3 of the Cinematograph Act, 1952 (hereafter “the Act”) for public exhibition. The attempt of the petitioners is not to stall release of the film on the date scheduled, i.e. 25th February, 2022, but to tinker with the freedom of expression of those behind production of the film on the specious ground that a particular dialogue, the title of the film as well reference to a particular area as a red-light area would hurt the sentiments of the people belonging to the North-Eastern states of the country, people hailing from Kathiawad in Saurashtra, Gujarat and people residing in Kamathipura in South Mumbai.

4. Public Interest Litigation (L) No. 4336 of 2022 is at the instance of an Indian citizen who claims to be actively involved in works towards social causes and legal awareness. It is the pleaded case that the trailer of the film was uploaded on YouTube on 4th February, 2022 wherein the lead actress is seen to be visiting a dentist. The character of the dentist is played by an actor from the North-East and upon the dentist urging the actress to open her mouth wide, she responds by saying “PURA KA PURA CHINA MUH ME GHUSAYEGA KYA”. According to the petitioner, the said dialogue clearly and directly intends to connect the North-East person/actor to China in spite of he being an Indian. It is also his claim that the said dialogue is per se defamatory, hurts the sentiments of the people of the North-East community and brings out a feeling of insecurity within them together with increased vulnerability to racial discrimination. Based on such pleadings, relief is claimed seeking directions upon : the respondent nos. 1 and 2 (Bhansali Production and Pen India Limited) “to pull down/delete the trailer from YouTube and other social media platforms forthwith and to modify/delete the subject scene that is racist in nature”; and the respondent no.3 (the Board) “to carefully scrutinize the dialogue of the entire movie before issuing certificate for the film as well as for stay of the release of the film until such modification/deletion is made, as directed by the Court”.

5. We record that Mr. Saraogi, learned advocate for the petitioner, did not seek the relief of stalling of release of the film but confined the petitioner’s grievance to use of the word “China” in the aforesaid dialogue. According to him, since the said dialogue has the potential of affecting the interest of the people of the North-Eastern region, the word “China” should either be deleted or muted.

6. Mr. Kadam, learned senior advocate appearing for the respondent nos.1 and 2 in PIL(L) No. 4336 of 2022 submits that the events depicted in the film relate back to 1950 when quite a few Chinese dentists had been practicing in the relevant area where the character, on whom the film is based, resided. He further submits that the character of the dentist is of a Chinese (Dr. Chung). A screen grab on a cell phone is shown to us of a board carrying the name of the dentist, hung outside his chamber to support the assertion. It is Mr. Kadam’s specific statement, on instructions, that the character of the dentist is neither of a person hai

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2022 Supreme(Bom) 213

Point of Law : Once film is granted certificate by competent statutory authority, i.e. Board, producer or distributor of the film has every right to exhibit film in a hall unless, of course, said certificate is modified/nullified by a superior authority/Court.

Cases Referred (4)