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High Court Of Delhi
AMITABH BACHHAN CORPORATION LIMITED - Appellant
Versus
OM PAL SINGH HOON - Respondent
Decided On : 03/26/1996
Held:
If the Tribunal applied the narrow test of obscenity instead of applying the broader test of decency relevant for Article 19(2) and Section 5-B of the Act, surety the finding on the cuts in regard to the three items referred to by thelearned Single Judge is vitiated and is liable to be set aside inasmuch as the Tribunal decided the wrong question or applied the wrong test.
We saw the picture along with counsel and we measured the length of the scene with a stop watch. This scene runs for full 2 minutes. The heroine is stripped totally naked in the gaze of about perhaps a hundred villagers standing in a circle at a distance around the well and she is paraded nude from face to the toes, all along the circle, with her front exposed including her private parts. She fetches the water from the well.
In our view, to say the least, the two sequences show the mans posterior vividly and are absolutely indecent. Such an open public exhibition of the posterior for 20 seconds showing his physical movements are-assuming they are not obscene-absolutely disgusting, causing revulsion and violate Section 5-B and Article 19(2).
Initially, the heroine is shown up to the waist on the front side when her clothings are forcibly removed. It is only later that the lower parts of the body are also exposed when she is paraded in a circle before a crowd. There are, thereforee, portions in the scene initially which are surely sexual and sensual and which, in our view, are obscene. It may be that certain other portions where she is shown totally nude with her private parts exposed, it is revolting or shocking, amounting to being indecent. But the portion referred to earlier, is in our view, capable of arousing sexual or sensual or lascivious feelings in the average man. As a matter of law, the finding of the Appellate Tribunal that it is not obscene is one which, in our view, no average reasonable person could have reached.
We would direct the Union of India to consider and implement the recommendations of the Parliamentary Committees Report after following the due procedure, so that the Censor Boards/Tribunals keep indecency in mind rather than obscenity or they may not consider only the overall test while dealing with indecency and not the particular scene test. As long as Section 5-B contains the words decency and morality drafted from Article 19(2) of the Constitution, Censor Boards must sec that films conform to Constitutional and statutory provisions and guidelines issued by the Central Government. The Censors should also have an idea of the law as declared by the Supreme Court or High Courts in this behalf. Today we are, unfortunately, faced with a situation where the wrong tests are being applied by the Censor Board as well as the Appellate Tribunal.
We may also add that the assumption on the part of producers/directors of films that rape scenes or sex and violence can pass through if the picture presents some social theme taken as whole is totally fallacious. According to the law as declared by the Supreme Court, the test is thematic and episodic. Taken out of the overall theme of the film, the individual scenes must also be decent. A simple theme of revenge by a woman raped cannot be allowed to be an excuse for any number of violent rape scenes, in a cinema. Such is not the law of the land.
The Parliamentary Committee in its 1994-95 report has rightly stated that box office success of a film is not the index of popular demand by itself nor of contemporary social values. Producers and directors cannot create a taste for sex and violence and contend that there is popular demand for the same. Constitutional values and statutory standards as interpreted by the Supreme Court have to guide us. It is not the shifting popular will but our fundamental assessments of human values and the purpose of society that should govern.
Words & Phrases - Obscenity — Indecency & obscenity are not the same thing — Obscenity can be indecent but not the vice versa — Words & Phrases — Indecency.
what is obscene is certainly indecent but what is indecent is not necessarily obscene. Indecency means not being in conformity with prevailing standards of propriety, modesty or quality of being decent or what is shocking, disgusting or revolting. We are not here confronted with a combination of words obscene or indecent so as to permit a plea that the words are intended to convey a single idea.
We hold that indecency is not the same thing as obscenity and it has a broader connotation
( 1 ) THESE appeals arise out of the Judgment of the learned Single Judge dated 7. 3. 1996 in C. W. P. No. 383 of 1996. LPA 39/96 is preferred by M/s Amitabh Bachan Corporation Ltd. LPA 43/96 is filed by M/s Bobby Art International, which is the sole distributor of the film "bandit Queen" for the Delhi and U. P. region. L. P. A. 51/96 is preferred by M/s Kaleidoscope (India) Pvt. Ltd and another. M/s Kaleidoscope is the, producer of the film. By this Judgment we propose to dispose of all the three appeals before us.
( 2 ) IN the writ petition the main question is whether the certificate granted by the Censor Board, as modified by the Appellate Tribunal, conforms to the basic principles of law. The film was initially examined by the Examining Committee which recommended about 10 cuts and a general cut of deletion of expletives throughout the film. On 19. 7. 1995 the Revising Committee examined the film and recommended grant of "a" certificate to the film subject to certain cuts. Aggrieved by the decision of the Revising Committee, the Director the film, carried the matter in appeal to the Appellate Tribunal. When the matter came up before the Appellate Tribunal, it accepted the cuts which were in conformity with the. compromise arrived at in Court between Phoolan Devi and the Producer and the Director. Vide its order dated 14. 8. 1995 the Appellate Tribunal retained some of the cuts imposed by the Revising Committee and set aside some of the other cuts imposed by the Revising Committee and partly allowed the appeal and directed that the film be given an "a" Certificate after the cuts/reductions mentioned by it were carried out by the appellant.
( 3 ) LEARNED Judge considered the question whether the Appellate Tribunal was right in setting aside the decision of the Revising Committee in respect of the three cuts. Learned Judge came to the conclusion that the Appelllate Tribunal was wrong in setting aside the decision of the Revising Committee in regard to the three cuts in -. eluding the one relating to the use of expletives in the film. Learned Judge quashed the certificate granted in respect of the film and directed that the Board will consider afresh the grant of "a" Certificate after the respondents have made the appropriate excisions/modifications in accordance with the Judgment.
( 4 ) THE arguments before us covered a very wide canvas. But,before we refer to the submissions, it is necessary to have an idea of the story as depicted in the film.
THE story of the film:
( 5 ) THE film portrays the pain and suffering of a humiliated woman on whom untold indignities were heaped. Still a child she was married off to a man who would have been fit to be her father. She was beaten and raped by him. After having been robbed of her childhood she was tormented by the village boys. ,. She was beaten by them when she foiled the advances of one of them. In the Panchayat, which followed after the incident, she was blamed for trying to entice the boy belonging to the higher caste. As a consequence of the decision of the Panchayat, she had to leave the village. As if that was not enough, she was arrested by the police. In the police station,she was subjected to fresh round of indignity and humiliation. She was released on bail at the intervention of some persons, who were not moved by compassion for her but for their carnal pleasure. Thereafter, she was kidnapped by dacoits and sexually brutalised by their leader, a character called babu Gujjar . While she was being sexually assaulted by him, another member of the gang Vikram Mallah, who had developed felling for her, shot him dead in a fit of rage. She was attracted towards Vikram and joined his gang. Along with Vikram she visited her husband, tied him up with a tree and took her revenge by brutally beatting him. Her days of happiness with Vikram were transitory. The Thakur leader of the gang Sri Ram, who was released from Jail, felt insulted by her as she spurned hi
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