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High Court Of Madhya Pradesh
DIPAK MISRA, A. K. SRIVASTAVA
SHYAM NARAYAN CHOUKSEY - Appellant
Versus
UNION OF INDIA AND OTHERS - Respondents
W. P. 1815 Of 2002
Decided On : 07/24/2003
KABHI KHUSHI KABHI GUM - NATIONAL ANTHEM - CINEMATOGRAPH ACT, 1952 - PREVENTION OF INSULTS TO NATIONAL HONOUR ACT, 1971 - CONSTITUTION OF INDIA, ART. 51A - FILM CERTIFICATION - GUIDELINES - NATIONAL ANTHEM - PICTURIZATION - CERTIFICATION - STANDING UP OF AUDIENCE - SUMMARY
Fact of the Case:
The petitioner, a retired officer of the State Government, filed a PIL to challenge the use of the National Anthem in the depiction of a narrative in the film "Kabhi Khushi Kabhie Ghum". The petitioner contended that the manner in which the National Anthem was depicted in the film was disrespectful and violated the provisions of the Cinematograph Act, 1952, the Prevention of Insults to National Honour Act, 1971, and Article 51A of the Constitution of India. The respondents, including the producer and director of the film, the Central Board of Film Certification (CBFC), and the Union of India, defended the use of the National Anthem, arguing that it was done in a respectful manner and that the CBFC had granted a certificate for the film's public exhibition.
Finding of the Court:
The Court held that the depiction of the National Anthem in the film was disrespectful and violated the provisions of the Cinematograph Act, 1952, the Prevention of Insults to National Honour Act, 1971, and Article 51A of the Constitution of India. The Court found that the CBFC had failed in its duty to ensure that the film did not violate any of these provisions. The Court also held that the audience in the film should have stood up when the National Anthem was sung.
Issues: 1. Whether the depiction of the National Anthem in the film was disrespectful and violated the provisions of the Cinematograph Act, 1952, the Prevention of Insults to National Honour Act, 1971, and Article 51A of the Constitution of India? 2. Whether the CBFC had failed in its duty to ensure that the film did not violate any of these provisions? 3. Whether the audience in the film should have stood up when the National Anthem was sung?
Ratio Decidendi: 1. The Court held that the depiction of the National Anthem in the film was disrespectful and violated the provisions of the Cinematograph Act, 1952, the Prevention of Insults to National Honour Act, 1971, and Article 51A of the Constitution of India. The Court found that the National Anthem was used in a variety show of a school, it was presented as a surprise item, and the audience in the film did not stand up immediately when the National Anthem was sung. The Court also found that the boy who sang the National Anthem forgot the words and said 'sorry', and that the mother of the boy completed the National Anthem. 2. The Court held that the CBFC had failed in its duty to ensure that the film did not violate any of the provisions of the Cinematograph Act, 1952, the Prevention of Insults to National Honour Act, 1971, and Article 51A of the Constitution of India. The Court found that the CBFC had granted a certificate for the film's public exhibition without considering the manner in which the National Anthem was depicted in the film. 3. The Court held that the audience in the film should have stood up when the National Anthem was sung. The Court found that the audience in the film did not stand up immediately when the National Anthem was sung, and that this was disrespectful to the National Anthem.
Final Decision: The Court directed that the film "Kabhi Khushi Kabhie Ghum" should not be shown in any theatre unless the scene which depicts the National Anthem is deleted. The Court also directed that the respondents should pay a sum of Rs. 15,000/- (fifteen thousand only) to the petitioner towards the costs of the litigation.
( 1 ) IN the days of yore it was vocally pronounced with immense emphasis that a drum beat may travel to a maximum limit of four miles but the utterances made by one man, through men, is capable of reaching people who are thousand miles away. The medium of man's expression has no limitation. In the modern world the media has irrefragably earned the status of inevitable and indispensable fourth pillar. Freedom of speech and expression has gained immense significance and its utility, by no stretch of imagination, can ever be marginalised and its importance be reduced but, an unavoidable and significant one, there are certain limitations which are imposed by law within the permissible, reasonable or rational, acceptable and non-arbitrary limits. Cinema as a medium of expression and as a mode of entertainment has reached an enviable status in the scientific world. The Indian cinema has a different conception from its inception inasmuch as myths, historical events, poignant novels, moving stories, autobiographical novels, biographical sketches along with melodious songs have dominated the silver screen. Some recall with fondness the historical beginning when Dada Saheb Phalke introduced the Indian audience to the modern medium in an innovative method and that is when the silent era of the moviedom came into being in India. Needless to state, at that point of time, the pioneer of Indian cinema could never have harboured the thought in the farthest quarters of his mind that a day would come when cinema, a versatile audio-visual medium would lead to a controversy when many a question would arise to be adjudicated in a public interest litigation being preferred by a retired officer of the State Government as pro bono publico to agitate the grievance relating to the use of the National Anthem in the depiction of the narrative - a motion picture. At this juncture, we may state that in the case at hand it has become imperative and incumbent on our part to deeply penetrate and to appreciate applying the roving logicality of the quintessential facet of perceptual shift pertaining to commercial use and dramatisation of the National Anthem of our country Bharat, 'bharti Yatra Santatih' in the film namely, "kabhi KHUSHI KABHI GUM".
( 2 ) CINEMA has been described in Chamber's Encyclopedia as an abbreviation of cinematograph or kinematograph. It has also been mentioned therein that broadcasting excepted it is the youngest of the arts, having developed from rudimentary beginnings to a high level of aesthetic and technical achievement within the first half of the 20th century and becoming one of the most popular and cheap forms of entertainment. The cinema is regarded as an art and initially it was trick photography. With the passage of time certain story films were contrived and there was no sound. In the third decade 'talkies' arrived. In the year 1926 introduction of sound transformation and both, technical and economical form of film production took place and slowly colour photography was introduced and factors in size and quality of the image changed.
( 3 ) WE have devoted some space to the concept of cinema as the whole controversy, in the case at hand relates to picturisation and projection of an important scene in the celluloid. The portrayal in its entirety is neither surrealistic nor in the silhouette background. The whole thing is direct, like an arrow, piercingly moving, having the requisite impact. We have to deal with such a situation in the bedrock and anvil of existing law.
( 4 ) ONCE we penetrate into the sphere of any medium of mass communication, the concept of democracy, sovereignty, patriotism, nationalism and collective good emerge, some rise like phoenix, some are immediately vibrant. One remembers the saying by Adli Stevenson that partriotism is not short and frenzied outbrust of emotion but the tranquil and steady dedication of life time. One is also reminded that freedom is not caprice. And further, democ
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