IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE


WRIT PETITION NO. 2863 OF 2003

Petitioner: Shri Anand Patwardhan:
Vs
Respondents: 1. The Director General
Directorate General of Doordarshan, Mandi House
Copernicus Marg, New Delhi 400001

2. Prasar Bharati Broadcasting Corporation of India
Mandi House, New Delhi

3. The Officer in charge
Regional Office, Prasar Bharati, Mumbai

4. Union of India

Mr. P.A. Sebastian for petitioner
Mr. Rajiv Chavan with Mr. Suresh Kumar for Respondents

CORAM: A.P. SHAH & S.C.DHARMADHIKARI JJ.
Dated 3.3.2004

Per A.P. Shah J:

1. Rule. Respondents waive service. By consent rule is taken up for final hearing.

2. This petition seeks a writ of certiorari or any other appropriate writ, order or direction quashing the decision taken on July 11, 2003 by the Prasar Bharati Board refusing to telecast a documentary film entitled “Father, Son and Holy War” on Doordarshan. As a consequence the petitioner asks for a writ of mandamus or any other appropriate writ, order or direction directing the respondents to screen the said documentary film on Doordarshan at a prime time slot.

3. The petitioner is a well known film maker. The documentary films made by the petitioner in the past were acclaimed at national and international level. The petitioner produced in 1995 a documentary film in four reels (running time 2 hours) called “Father, Son and Holy War”. In this film the petitioner has tried to explore link between the indoctrinate mechanism of patriarchal order and communal aggression, and attempted to analyze relation between patriarchy, violence and suppression of women. The documentary, traversing the paths of atrocities through meandering lanes of trouble torn India, brings out connection of violence, fundamentalism and masculinity and forcefully makes a point that victims and losers of all wars and violence, whether it be in the name of religion or patriotism, are women. The documentary at the same time highlights the sparkle of hope in women’s march against oppression. The documentary is in two parts, Part I Agnipareeksha and Part II Hero-pharmacy. Part I has been given “U” certificate and Part II “A” Certificate by the Central Board of Film Certification.

4. The documentary “Father, Son and Holy War” has received two awards in two different categories viz. “Best investigative film: and “Best film on society issues” at 42nd National Film Festival, 1995 conducted by the Ministry of Information and Broadcasting, Government of India. The Jury of the 42nd National Film Festival, 1995 adjudging the said documentary as the best film on the social issues, applauded for is “conviction, courage and relentless observation, tempered by a sharp sense of irony”, for “probing beyond the objective” and for is “pursuit of insights”. The said film has won several international film awards viz. first prize in Jerusalem Film Festival, Israel, 1995m Special Jury Prize, Yamagatta, National Film Festival, Japan, 1995 and Special Jury Prize in Vancouver, International Film Festival, Canada, 1995.

5. The petitioner submitted his documentary film “Father, Son and Holy War” to the Director General of Doordarshan, New Delhi in 1995 for telecast on national net work of Doordarshan. The petitioner received reply dated August 30, 1995 from the Director General of Doordarshan asking for “U matic copy of the film. The petitioner had handed over a VHS copy of the said documentary which according to him was sufficient for preview to decide its suitability for telecast. On October 26, 1995 the petitioner handed over another VHS copy of the said documentary to Doordarshan. However, Doordarshan insisted on “U” matic copy of the said documentary. Ultimately the petitioner handed over a U-matic copy to Doordarshan on February 28, 1997. However, inspite of waiting for a long lime the petitioner did not received any reply from Doordarshan. On June 5, 1997 the petitioner through his advocate sent a letter in which he asked Doordarshan to take a decision in the matter of the said documentary and convey it to the petitioner. But neither his advocate nor the petitioner received any reply to the said letter. Left with no alternative the petitioner filed a writ petition being Writ Petition No. 1306 of 1998 which came to be disposed of by the Division Bench on September 22, 1998 whereby Doordarshan was directed to take a decision on the application of the Petitioner within a period of six weeks. By a communication dated August 2, 1998 Doordarshan informed the Petitioner that the said documentary film was not suitable for telecast purpose.

6. Aggrieved by the refusal of Doordarshan to telecast the film, the petitioner approached this court by filing a writ petition being Writ Petition No. 2275 of 1998. The Division Bench, to which one of us i.e. Shah J. was a party, heard the petition and delivered a judgment on February 23, 2001 whereby the respondents were directed to telecast the petitioner’s film “Father, Son and Holy War” within a period of six weeks. The Respondents approached the Supreme Court by way of Special Leave Petition (Civil) No. 7205 of 2001. In the course of hearing of the said Special Leave Petition the Supreme Court noted that the committee which considered the proposal of the Petitioner to broadcast the said documentary on Doordarshan was not the authority constituted as required under the guidelines issued by the Respondents and, therefore, the decision taken by the said committee was without jurisdiction. The Supreme Court therefore on December 12, 2001 directed that Respondents should constitute a committee as required under para 5(ii) of he guidelines and he committee so constituted should consider the proposal of the Petitioner within three months from the date of such constitution of the committee. In that view of the mater the judgment of this court dated February 23, 2001 and the order impugned in Writ Petition No. 2275 of 1998 were set aside. Inspite of the order passed by the Supreme Court the Respondents did not constitute the committee for several months and did not take decision despite letters/reminders from the petitioner calling upon the respondents to act in accordance with the order of the Supreme Court. The respondents chose not to reply to those letters. The petitioner therefore filed Contempt Petition (Civil) No. 109 of 2003 in the Supreme Court. In reply to the contempt petition the Director General of Doordarshan filed an affidavit dated July 18, 2003 in which he disclosed that the proposal of the petitioner to broadcast the film on the national net work of Doordarshan was turned down by the Prasar Bharati Board. In the light of the said affidavit the Supreme Court disposed of the contempt petition with an observation that if the petitioner feels aggrieved against the order, it is open to him to challenge the same before an appropriate forum.

7. It appears that pursuant to the direction of the Supreme Court vide letter dated December 12, 2001 Doordarshan had constituted a committee comprised of three non-official members. After pre-viewing the said documentary the committee recommended that it be referred to a larger committee. Accordingly, a larger committee was constituted. This larger committee viewed the said documentary on June 5, 2003 and opined as under:

“It is a very good film and must be shown. It may alienate sections of Indian society to reactions by organized groups. In the unanimous view of the committee the protest is an important part of Indian democracy and was a part of its fight for independence, which is also a compelling reason for the film to be shown. Keeping these in mind the committee recommends ht the screening of he film be proceeded by a discussion in which alternative views are given by persons with different views”.

8. The respondents, however, decided not to accept the recommendation of the said larger committee and referred the mater to the Prasar Bharati Board. The Prasar Bharati Board pre-viewed the said documentary in its meeting held on July 11, 2003 and decided that the said documentary was not fit for telecast on Doordarshan and the said decision was communicated to the petitioner vide letter dt. July 18, 2003. The relevant portion of the decision of the Prasar Bharati Board is reproduced below:

“The Board of the unanimous opinion that it is not in public interest to show the film on Doordarshan, in view of the provocative scenes which may promote violence, unsatisfactory production quality and the fact that the film had nothing specific to convey in public interest. The Board was also of the unanimous opinion that telecast of the film would be violative of the policy of Doordarshan of not showing “A” certified movies”.

9. Before the hearing commenced the film was screened for the court. The lawyers of both sides and the petitioner also remained present. The film is structured in two parts – one-hour segments entitled “Agnipariksha” and “Hero pharmacy”. The film negotiates a wide range of locations and contexts, ranging from the developments following Roop Kanwar’s burning at her husband’s pyre at Deorla, Rajasthan in 1987, communal tension in Ahmedabad, Gujarat in 1987, the international Puthrakameshti Yagna (the ritual for the birth of sons) in Cochin, Kerala, 1992, the aftermath of Babri Masjid crisis leading to riots in Mumbai in 1993 and the devastating bomb blasts that rocked Mumbai. The film attempts to deal with some of the key issues of our age such as masculinity as a source of conflict and power, absurdities of political power and its link with communal violence. The film portrays connection of violence, fundamentalism, masculinity and exploitation of masculinity and its reflection in communal aggression. All these are ranged against a small group of fire fighters – a working class Rajasthani woman who against the odds refuse to glorify or condone sati, a Hindu reformist who organizes an anti sati march, a Muslim woman who fights for the rights of muslim women against discriminatory personal laws and a band of Hindus and muslims who march for communal harmony through riot torn streets of Mumbai. Part II “Hero Pharmacy” describes the construction of ‘manhood’ in the context of religious strife. The film highlights that victims and losers of all wars and violence, whether it be in the name of religion or patriotism are not the political leaders but women and the innocent ordinary citizens.

10. Mr. Sebastian, learned counsel appearing on behalf of the petitioner submitted that the refusal by Prasar Bharati to telecast the petitioner’s film, “Father, Son and Holy War” is a clear violation of the petitioner’s fundamental right under Article 19(1)(a) of the Constitution. He urged that the film carries a strong message for unity and secular India and there is no justification to prevent its telecast on Doordarshan. He submit-tted that the Doordarshan has a policy of telecasting award winning films and documentaries and the action of the respondents in refusing the film contrary to the said policy is totally unfair, unjust and arbitrary. The learned counsel further submitted that the Censor Board has approved the film and the guidelines of Doordarshan in telecasting the film cannot be substantially different from the guidelines laid down under the Cinematograph Act, 195. In any event, according to the learned counsel unless the said guidelines are read down they would be liable to be struck down as grossly violating the fundamental rights guaranteed by Article 19(1)(a) of the Constitution.

11. On the other hand, Mr. Chavan, learned counsel appearing for the respondents submitted that the decision not to telecast the film of the petitioner in based on valid and germane considerations and no film maker can claim that he has a vested right that a film made by him must be telecast on Doordarshan. He submitted that as a matter of policy respondents do not telecast films which are certified as “A” to “UA”. Admittedly Part I of the film in question has been certified as “U” and Part II as “A”. The policy of the respondents of not telecasting A or UA films has not been challenged by the petitioner. Mr. Chavan also submitted that the telecast of the petitioner’s film is likely to give rise to communal violence and riots. He submitted that Doordarshan has reached the remotest corners of he country. It has a wide audience which mainly consists of illiterate and average persons who will be largely affected due to screening of the film.

12. In view of the rival submissions, two questions, arise for our determination, (1) whether the film maker had fundamental right to have his film telecast on Doordarshan and (2) if yes, whether the respondents have successfully shown they they were entitled to refuse to telecast the documentary as the guidelines were breached?

13. Speech is the basic vehicle for communicating idea, hopes and belief. The right to speak freely is necessary to the very flow of ideas considered so crucial to the essence of a democratic government. John Stuart Mill in his famous treatise “Utilitarianism, Liberty and Representative Government” explained he importance of free speech and expression in these words, “But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit of he creative perception and livelier impression of truth, produced by its collusion with error.”

14. Art 19 (1) (a) of the Constitution provides that “all citizens shall have the right to freedom of speech and expression.” Art 19 (2) permits operation of laws existing and recognize the powers of the State to make any law in order to impose reasonable restrictions on the freedom of speech and expression in the interest of the security of the State, friendly relations with foreign States, public order, decency and morality or in relation to contempt of court, defamation or incitement of an offence the Supreme Court has interpreted the right to free speech and expression to include the freedom to circulate one’s views by words of mouth or in writing or through audio-visual instrumentalities. In the case of Sakal Papers (P) Ltd. vs Union of India, AIR 1962 SC 305 the Constitution Bench held that the freedom of speech and expression guaranteed under Art 19 (1) (a) includes the right to propagate one’s views through the print media or through any other communication channel as also freedom of press. Every citizen of this country has thus he right to air his or her views through the printing or electronic media subject to course to permissible restrictions imposed under Art 19(2) of the Constitution. In Indian Express Newspapers (Bombay) Pvt.Ltd. vs Union of India, AIR 1986 Sc 515 the Court observed that communication needs in a democratic society should be met by the extension of specific right e.g. the right to be informed, the right to inform, the right to privacy, the right to participate in public communications, the right to communicate, etc. It was pointed out that the constitutional guarantee of the freedom of speech and expression is not so much for the benefit of the press as it is for the benefit of the public. The people have a right to be informed of the developments that take place in a democratic process and the press plays a vital role in disseminating this information. Neither the Government nor any instrumentality of the Government or any public sector undertaking run with the help of public funds can shy away from articles which expose weakness in its functioning and which in given cases pose a threat to their power by attempting to create obstacles in the information percolating to the members of the community.

15. On Odyssey Communications Pvt.Ltd. vs Lokvidayan Sanghatana, AIR 1988 SC 1642 a public interest litigation was commenced under Art 226 of the Constitution to restrain the authorities from telecasting the serial “Honi Anhony” on the plea that it was likely to spread false and blind beliefs and superstitions amongst the members of the public. The High Court by an interim injunction restrained the authorities from telecasting the serial which led the producer thereof to approach the Supreme Court under Art 136 of the Constitution. The Supreme Court while allowing the appeal held that the right of a citizen to exhibit films on Doordarshan subject to the conditions imposed by Doordarshan being a part of the fundamental right of freedom of expression could be curtailed only under the circumstances as set out in Art 19(2) and in or other manner. The right to exhibit film was held to be similar to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisements, hoardings, etc. This view as reiterated in S. Rangarjan vs. P. Jagjivan Ram (1989) 2 SCC 574 where the court was required to consider whether the Madras High Court was justified in revoking the “U” certificate issued to a Tamil Film “Ore Oru Gramathile” for public exhibition. The theme of the movie was that the reservation policy should not be based on castes, but could be on economic backwardness. The Censor Board granted “U” certificate. On a writ petition the Madras High Court revoked the certificate. Reversing he decision of the High Court the court held that the movie enjoys he guarantee of Art 19(1)(a) and the restraint cannot be placed merely on the ground that the movie is critical of the government policy. The court observed:

“Movie is the legitimate and the most important medium in which issues of general concern can be treated. The producer may project his own message which the others may not approve of. But has a right to “think out” and put the counter appeals to reason. It is a part of a democratic give-and-take to which no one could complain. The State cannot prevent open discussion and open expression, however, hateful to its policies. A Professor Freund put it: “The State may not punish open talk, however, hateful, not for the hypocritical reason that Hyde Parks are a safety valve, but because a bit of sense may be salvaged from the odious by minds striving to be rational, and this precious bit will enter into the amalgam which we forge.”

16. The court emphasized that the freedom of expression means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and the right to propagate or publish opinion. Concluding the discussion the court observed as under:

“We end here as we begin on this topic. Freedom of expression which is legitimate and constitutionally protected cannot be held to ransom by an intolerant group of people. The fundamental freedom under Art. 19(10(1a) and be reasonably restricted only for the purposes mentioned in Art. 19(2), and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operation is not a ground for restricting expression. We must practice tolerance to the views of others, Intolerance is as much dangerous to democracy as to the person himself”.

17. It is thus evident that the Supreme Court has always placed a broad interpretation on the value and content of Art 19(1)(a) making it subject only to the restrictions permissible under Art 19(2). The said right was considered not so much for the benefit of the person claiming the right but for the benefit of the public and the public have a right to be informed of the developments that take place in democratic process. In the context of the present case the most relevant decision of the Supreme Court is in the case of Life Insurance Corporation of India vs. Prof. Manubhai D Shah, AIR 1993 Sc 171. In that case the court was concerned with the documentary film on Bhopal Gas Disaster titled “Beyond Genocide”. This film was awarded “Golden Lotus” being the best non feature film of 1987. The film as submitted for telecast to Doordarshan but Doordarshan refused to telecast the same on the ground that “the contents being outdated do not have relevance now for the telecast. In the counter it was stated that the film lacks moderation and restrain in judging things and expressing opinions, and it was found not suitable for telecast. It was also stated that while most of the claims for compensation for the victims of Bhopal Disaster were subjudice and political parties were raising certain issues, it was inexpedient and unwise to telecast the film would further vitiate the atmosphere and will serve no social purpose. The High Court directed Doordarshan to telecast the documentary on Doordarshan on a day and time convenient to it keeping in view the public interest and on such terms and conditions as it would like to impose in accordance with law. The Supreme Court while confirming the decision of the High Court observed as under:-

“The words “freedom of speech and expression” must, therefore, be broadly construed to include the freedom to circulate one’s views by words of mouth or in writing or through audio-visual instrumentalities. It, therefore, includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Art 19(2) of the Constitution. The print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy. Freedom to air one’s views is the lifetime of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship. It cannot be gainsaid that modern communication medium advances public interests by informing the public of the event and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set up more so in a democratic set up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief or Art 19(2) of the Constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation has view in periodicals, magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vial issues of national importance. Once it is conceded, and it cannot indeed be disputed that freedom of speech and expression includes freedom of circulation and propagation of ideas,

there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism leveled against the view propagated by him. Every free citizen has an undoubted right to lay what sentiments he pleases before the public, to forbid this, except to the extent permitted by Art 19(2) would be an inroad on his freedom. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardize public interest. It is manifest fro Art 19(2) that the right conferred by Art 19(1) (1) to subject to imposition of reasonable restrictions in the interest of amongst others, public order, decency or morality or in relation to defamation or incitement to an offence. It is, therefore, obvious that subject to reasonable restrictions placed under Art 19(2) a citizen has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Art 19(1) (a).

18. With these prefatory observations, let us now turn to the reasons which weighed with the Prasar Bharati Board for rejection of the petitioner’s documentary film on Doordarshan. At the outset it may be noted that it was conceded by the learned counsel for the respondents that there is a policy of Doordarshan to telecast award winning films/ documentaries on Doordarshan. It may also be noted that refusal to telecast the film was not based on the ground that the list of award winning films was long and on the basis of inter se priority amongst such films and the time allocated for telecasting such films, it was not possible to telecast such films, it was not possible to telecast the film. The grounds for refusal that can be culled out from the order of Prasar Bharati Bard were (i) that film contains provocative scenes which may promote violence; (ii) unsatisfactory production quality and the film had nothing specific to convey in public interest and (iii) telecast of the film would be violative of the policy of Doordarshan of not showing “A” certificate films.

19. Section 5-B of the Cinematograph Act which echoes Article 19(2), states that a film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency and morality, or involves defamation or contempt of court, or is likely to incite the commission of any offence. Under the provisions of sub section (2) of section 5B the Central Government is empowered to issue directions setting out the principles which shall guide the authority competent to grant certificates in sanctioning films for public exhibition. Under section 9 of the said Act all Doordarshan programmes are made exempt from the provisions relating to certification of the film in Part II of the Act and the rules made thereunder by Notification dated October 16, 1984 subject to condition that while clearing programmes for telecast the Doordarshan shall keep in view the film certification guidelines issued by the Central Government to the Board of Film Certification under sub-section (2) of section 5B of the Act. The guidelines earlier issued were revised in 1991 and clause I thereof reads as under:

“1. The objectives of film certification will be to ensure that-
(a) the medium of film remains responsible and sensitive to the values and standards of society;
b) artistic expression and creative freedom are not unduly curbed;
c) certification is responsive to social change;
d) the medium of film provides clean and healthy entertainment; and
e) as far as possible, the film is of aesthetic value and cinematically of a good standard.
Clause (2) states that the Board of Film Censors shall ensure that-
“ 2. (vii) human sensibilities are not offended by vulgarity, obscenity or depravity;
(ix) scenes degrading or denigrating women in any manner are not presented;
(x) scenes involving sexual violence against form of molestation or scenes of a similar nature are avoided and if any such incident is germane to the them, they shall be reduced to the minimum and no details are shown”.

Clause (3) reads thus;
“3. The Board of Film Certification shall also ensure that the film-

i) is judged in its entirety from the points of view of the overall impact, and
ii) is examined in the light of the period depicted in the film and the contemporary standards of the country and the people to which the film relates, provided that the film does not deprave the morality of the audience”.

20. In the instant case the documentary of the petitioner has been cleared by the Central Board for Film Certification. The Film Certification Board which is a body of experts was obviously not of the view that the film promotes communal, violence, otherwise the film would not have been certified by the Board for public exhibition. In view of this background we are unable to appreciate the view taken by the Prasar Bharati Board. In this context what Hidayatullah C.J. said in K.A. Abbas vs. Union of India, 1970 2 SCC 780 with regard to the power of censorship needs to be reproduced:

“Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censor’s scissors. Thus audience in India can be expected to view with equanimity the story of Oedipus son of Laius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by handing herself and Oedipus put out his own eyes. No one after viewing these episodes would think that parricide or incest with one’s own mother is permissible or suicide in such circumstances or tearing out one’s own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as them in a story or in a documentary are not necessarily outside the protection. If that were so Verrier Elqyn’s Phulmat of the Hills or the same episode in Henryson’s Testament of Cressaid (from where Verrier Elwyn borrowed the idea) would never see the light of day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the Sack of Delhi by Nadirshah my be permissible, if handed delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadirshah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical them without true history? Rape in all its nakedness may be objectionable but Voltaire’s Candide would be meaningless without Cunegonde’s episode with the soldier and the story or Lucrece could never be depicted on the screen.”
21. The learned Chief Justice observed that our standards must be so framed that we are not reduced to a level where the protection of the least capable and most depraved amongst us determines what the morally healthy cannot view or read. The standards we set for censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and forever from human thought and must give scope for talent to put them before society. In our scheme of things, the Chief Justice noted that ideas having redeeming social or artistic value must also have importance and protection for their growth.

22. In Ramesh vs. Union of India, 1988 I SCC 668 which is popularly known “Tamas” case laid down the standard of judging the effect of the words or expression used in the movie. Sabyasachi Mukharji, J., as he then was, quoted with approval the following observations of Vivian Bose, J., as he then was, in the Nagpur Bench in the case of Bhagwati Charan Shukle vs. Provincial Government AIR 1947 Nagpur 1:

“… That the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor or those who scent danger in every hostile point of view. This in our opinion is the correct approach in judging the effect of exhibition of a film or of reading a book. It is the standard of ordinary reasonable man or as they say in English law, “the man on the top of Clampham ombibus”.

Indeed the Film Certification Guidelines require that the film has to be judged in its entirely from the point of view of its overall impact and it has to be so viewed from an average, healthy and common sense point of view

23. The film of the petitioner no doubt deals with the communal violence. Act the same time we also listen to stirring speech made by a women activist on a street who exhorts people to “remember their neighbors” during communal riots. The film contains a narrative of a muslim woman, a social worker who has been raped by the communal murderers of her husband and that of a Hindu mill worker whose child got killed in the bomb blast which occurred in the aftermath of the communal riots. The attempt of the film maker is to portray the miseries of the innocent victims of the communal riots. These sequences convey an obvious message of communal harmony as an ordinary muslim slum dweller is seen in the closing sequences of the film re-building the destroyed home of his Hindu neighbour. The message of the film maker cannot be gathered by viewing only certain portions of the film in isolation bu one has to view it as a whole. There are scenes of violence, social injustices but the film by no stretch of imagination can be said to subscribe to the same. They are meant to convey that such social evils are evil. There cannot be any apprehension that it is likely to affect public order or it is likely to incite commission of an offence. We are amused yet troubled at the observation 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. The documentary was given two awards in 42nd National Film Festival of 1995 conducted by the Ministry of Information and Broadcasting, Government of India as Best investigative film and Best film on social issues. It is therefore highly irrational and absurd to say that the documentary which was selected as best investigative film and best film on social issues promote violence and its production quality was unsatisfactory and that the film has no specific message to convey. The documentary has won several awards in the International film festivals. However, the Prasar Bharati Board strangely comments that the film had nothing specific to convey in public interest. This view of the Prasar Bharati is in contrast with the opinion expressed by the two committees constituted by the respondents. The first committee held that the film had a secular message relevant to our times and our society and it was a critique of the current concept of masculinity and the violence it legitimizes. The second committee said that it was a very good film and must be shown. Ordinarily the decision of the selection committee in all cases shall be final as per para 5 (viii) of the guidelines laid down by the Ministry of Information and Broadcasting for telecasting films. However, it appears that the respondents were bent upon rejecting the film and the decision of the committee was overruled by the Prasar Bharati Board under the pretext that the guidelines prohibit Doordarshan from exhibiting any film which is granted ‘A’ certificate and sine part II i.e. Hero pharmacy has been granted ‘A’ certificate telecast of the said film is not permitted under the guidelines framed by the Ministry of Information and Broadcasting.

24. Mr. Sebastian submitted and, in our opinion not without sufficient force, that the guidelines framed by the Ministry of Information and Broadcasting are merely guidelines for internal purpose and cannot be taken or read as one would read a statute. Mr. Sebastian submitted that guidelines state that no Doordarshan channel shall telecast “A’ certified adult/UA feature film in any language. He pointed out that the Cinematograph (Certification) Rules 1983 defines ‘feature film’ as fictionalized story film exceeding 2000 metres in length in 35 mm or corresponding length in other gauges or on video. According to the learned counsel “Father, Son and Holy War” is a documentary and not a feature film and therefore the guidelines do not apply to the petitioner’s film. On the other hand, Mr. Chavan submitted that the word “film” is used in broader sense s as to include all cinematograph films including a documentary. We will so assume for the purpose of this petition. However, once it is recognized that a film maker has a fundamental right under Art 19(1)(a) to exhibit his film, any attempt to restrict this right must be justified on the touchstone of Art 19(2) and the onus lies on that party to show that the refusal satisfies the parameters of Art 19(2). In our opinion, there cannot be blanket ban on telecast of a documentary solely because it is given A certificate or UA certificate. To construe the policy in such a fashion would render it violative of Article 19(1)(a) of the Constitution. There are for instance scientific films which deal with biology, physiology, and psychology of human beings which my not go well with the mental and physical development of children. Such films may be certified as A film or there may be medical films which deal with the function of reproduction to which it may not be appropriate to expose children and they may be certified as A films. However, such films have great scientific and human value. Take for example, a film of AIDS. If one strictly adhere to the guidelines such a film cannot be screened on Doordarshan. This would adversely affect the welfare, health and survival of the Indian citizens. Therefore the guidelines cannot be read to mean that a documentary which is given A certificate or UA certificate should be banned, irrespective of merit of the said documentary.

25. In Bobby Art International vs Om Pal Singh Hoon (1996) 4 SCC 1, while construing the guidelines laid down under the Cinematograph Act, Bharucha J., as he then was, observe as under:
“ The guidelines are broad standards, they cannot be read as one would read a statute. Within the breadth of their parameters the certification authorities have discretion. The specific sub-clause 2 of the guidelines cannot overweigh the sweep of clauses 1 and 3 and, indeed of sub-clause (ix) of clause (2). Where the theme is of social relevance, it must be allowed to prevail. Such a theme does not offend human sensibilities nor extol the degradation or denigration of women. It is to this end that sub-clause (ix) of clause 2 permits scenes of sexual violence against women, reduced to a minimum and without details, if relevant to the theme. What that minimum and lack of details should be is left to the good sense of the certification authorities to be determined in the light of the relevance or the social theme of the film”.

26. In the instant case the guidelines relied upon by the Doordarshan are not even framed under the Cinematograph Act but they are merely internal guidelines for the guidance of the officials of the Doordarshan. Therefore, in our opinion, 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. We may hasten to add that we are not suggesting that any and every A certified documentary should be permitted to be telecast on Doordarshan. What is emphasized is that a documentary cannot be denied exhibition on Doordarshan simply on account of it’s A certification or UA certification. Mr. Chavan made a vain attempt to object to certain scenes in the documentary especially one scene where person is selling aphrodisiacs on the road, while doing so makes certain remarks on the sexuality of males. As indicated earlier a film must be judged from an average, healthy and common sense point of view. That is the yardstick. If the said film is judged in its entirety and keeping in view the manner in which the film make has handled the theme, it is impossible to agree that those scenes are offended by vulgarity, obscenity or depravity. It is interesting to note that these objections were not even raised by any of the committees constituted for the purpose of assessing the petitioners’ film.

27. The upshot of the above discussion is that the petitioner has a right to convey his perception of the oppression of women through the documentary film produced by him. This film has won awards viz. “Best investigative film” and “Best film” and several international film awards. Merely because it is critical of policies of Government, exhibition of such film cannot be denied on television or Doordarshan. Freedom of expression which is legitimate and constitutionally protected cannot be held to ransom by an intolerant group of people. The film has a serious message to convey and is relevant in the present pretext. Respondents wee not able to point out how it could be said that the film was not consistent with the accepted norms set out earlier. Doordarshan being a State controlled agency funded by public funds could not have denied access to screen the petitioner’s documentary except on valid grounds.

28. In the result we make the rule absolute in terms of prayer clauses (a) and (b). Doordarshan is directed to exhibit the documentary film of the petitioner “Father, Son and Holy War” on Channel I or II within 12 weeks from today on such convenient day and time as may be fixed by Doordarshan.

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