IN THE HIGH COURT OF BOMBAY



Writ Petition No. 229 of 2003
Decided On: 24.04.2003
Appellants: Shri Anand Patwardhan

Vs.

Respondent: The Central Board of Film Certification and Anr.
Hon’ble Judges:

H.L. Gokhale and Ranjana Desai, JJ.
Subject: Constitution


Catch Words:

Accused, Allowance, American Constitution, Armed Forces, Attorney General,
Backward Class, Constitution of India, Contempt, Contempt of Court, Decency,
Detention, Dissenting Judgment, Documentary Film, Existing Law, Federal
Court, Freedom of Expression, Freedom of Speech, Fundamental Freedom,
Grounds of Religion, Guarantee, Incitement to an Offence, Interim Order,
Judicial Scrutiny, National Award, Preventive Detention, Protection of
Certain Right, Quasi Judicial Order, Reasonable Restriction, Religious
Belief, Representation, Right Conferred, Right to Freedom, Rights Regarding
Freedom of Speech, Rule of Law, Scheduled Tribe, Sovereignty, Speaker,
Subject to the Provision

 

Acts/Rules/Orders:

Constitution of India – Articles 14, 19(1), 19(2), 21 and 226; Cinematograph
Act, 1952 – Section 5A(1), 5B(1), 5B(2), 5C, 5D and 5D(3); Cinematograph
Certification Rules, 1983 – Rule 21; Civil Procedure Code (CPC), 1973 -
Section 95(1); Indian Penal Code – Sections 124A, 153A, 153B, 292, 293 and
295A; Preventive Detention Act

 

Cases Referred:

K.A. Abbas v. Union of India, (1970) 2 SCC 780; Ramesh v. Union of India,
(1988) 1 SCC 668; Bhagwati Charan Shukla v. Provincial Government, AIR 1947
Nagpur 1; S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574; Bobby Art
International v. Om Pal Singh Hoon, (1996) 4 SCC 1; Anand C. Dighe v. State
of Maharashtra, 2002 (1) BCR 57; Niharendu Dutt Majumdar v. Emperor, AIR
1942 FC 22; S. Krishnan v. State of Madras, AIR 1951 SC 301; Rex v Home
Secretary, (1923) 92 L.J.K.B. 797

 

JUDGMENT

 

Gokhale, J.

 

1. This writ petition under Article 226 of the Constitution of India seeks
to involve Article 14, 19(1)(a) and 21 of the Constitution to challenge the
order dated 9/12th December 2002 passed by the Film Certification Appellate
tribunal (“FCAT” for short) under Section 5-D of the Cinematograph Act, 1952
(“the Act” for short). The impugned order directs two cuts and one addition
in the documentary film made by the Petitioner. The petition is opposed
through an affidavit in reply of the Assistant Regional Officer affirmed on
27th February, 2003.

 

2. The facts leading to this petition are as follows:-

 

The Petitioner is a well known figure in the field of documentaries in India
and has been making socially relevant documentaries for last nearly three
decades. In the past, he has made films which have won national and
international awards, wherein he has dealt with various subjects like those
regarding street dwellers (Bombay Our City, 1985), religious fundamentalism
(“Ram Ke Nam”–i.e. in the name of God, 1992), the connection between
machismo and sectarian violence (Father, Son and Holy War, 1995) and the
plight of those displaced in the name of development (A Narmada Diary,
1995).

3. The subject of the present petition is a documentary called “War and
Peace” (Jang Aur Aman). It deals with the journey of peace activism in the
face of global militarism and war, and has been filmed over a period of 3
years in different countries such as India, Pakistan, Japan and U.S.A. It is
stated in the petition that the film was screened at the 7th Mumbai
International Film Festival in February, 2002 and was awarded the best
Film/Video Award as well as the International Jury Award. It is material to
note that the festival was organised by the Films Division of India which
comes under the Ministry of Information and Broadcasting. It is also stated
that the film won the Grand Prize at the Earth Vision International Film
Festival in Tokyo in 2002 and also won the International Critics Award at
the Sydney International Film Festival in 2002. It is also claimed that it
won the Gold Award of the Indian Documentary Producers’ Association in 2003.

 

4. The Petitioner submitted this film as required by the law to the Central
Board of Film Certification (hereinafter referred to as “the Board”) for
obtaining the necessary certificate for its public exhibition. This Board is
joined as Respondent No. 1 and Union of India is Respondent No. 2 to this
petition. After the film was so submitted under Rule 21 of the Cinematograph
Certification Rules, 1983 (“the Rules” for short), it was initially viewed
by an Examining Committee. The Committee recommended 6 cuts for issuing the
” U” Certificate. The Petitioner made a representation against this decision
and the Board appointed a Revising Committee. As per the affidavit in reply,
the Revising Committee recommended refusal of the certificate by four versus
three and in view of this thin majority, the film was referred to a second
Revising Committee. This Committee was also divided in its opinion and the
Chairman of the Board accepted the majority opinion which recommended 15
more cuts. Being aggrieved by this decision, the Petitioner preferred an
appeal to the FCAT under Section 5-C of the Act. The FCAT viewed the film
and ultimately by the impugned order directed issuance of “U” Certificate,
subject to the Petitioner carrying out two cuts and one addition as per the
impugned order.

 

5. This Tribunal (FCAT) is supposed to consist of a Chairman and not more
than 4 members appointed by the Central Government under Section 5-D(3) of
the Act. In the instant case, it consisted of Chairman and 3 other members.
The aforesaid decision was of the Chairman and two members whereas one
member recommended one additional cut in her separate order. Since the
majority members directed two cuts and one addition, the Petitioner has
taken their order as the order of the Board. That this majority order is the
final order is accepted by the Respondents also by stating so at the end of
para 4 of the affidavit on behalf of the Respondents. Being aggrieved by
this judgment and order, the present petition has been filed.

 

6. As stated above, FCAT directed two deletions and one addition. The first
deletion is with respect to a demonstration which is being held at Hutatma
Chowk, Mumbai. The demonstrators are giving slogans “Hindu Bomb Hi Hi (Hindu
Bomb Shame Shame) and Muslim Bomb Hi Hi (Muslim Bomb Shame Shame). The FCAT
has directed that the slogans be deleted. The second deletion is from a
speech of a Dalit Leader Bhai Sangare. This Shri Sangare is seen giving a
speech after explosion of the atomic device by India. The speech records
anguish of the speaker on the device being exploded on the day of Buddha
Jayanti. The speaker says that Buddha gave message of love and that being
so, why the bomb exploded on his birthday. And then the speaker says “Why
did’nt you do your blasts on Rama’s birthday? It’s your culture. All your
gods are fully armed. Rama has an arrow, Shankar has a trident, Vishnu has a
chopper. All have weapons. So when it’s the birthday of armed ones, do your
bomb blast. Our Buddha is unarmed.” This second deletion directs the
deletion of the sentence “It is your culture.” Then FCAT has directed an
addition where there is a reference to the Tehelka Tapes. The FCAT order
states “And lastly the so called Tehelka Tapes. Let Mr. Patwardhan show the
tapes but let him mention in the commentary and display at an appropriate
place that the tapes are under scrutiny of a Judicial Commission.”

 

7. Since we were concerned with the above referred two deletions and one
addition, it was thought desirable that the documentary be seen.
Accordingly, a special screening thereof was arranged on 7th March 2003 for
the benefit of this Bench. The documentary begins with the camera on the
death procession of Mahatma Gandhi. The voice of the maker of the film is
then heard who says as follows:

 

“Gandhiji was assassinated two years before I was born. The grief of this
moment never really went away, unconsciously transmitted through the love of
parents and family. The child in me never stopped asking: “who could have
done this?

 

That our family, like Nathuram Godse and his co-assassins, were “upper
caste” Hindus, cured me forever of any narrow understanding of nation – and
any vestige of pride, in the accident of birth…..’

 

8. Thereafter the maker of the film speaks about his uncles Rausaheb
Patwardhan and Achutrao Patwardhan. Then he mentions the military debacle
against China in 1962, and thereafter the film goes over to various scenes
of victims of the nuclear bomb blasts in the hospitals and then to various
aspects connected with war, nuclear weapons and sufferings therefrom. The
film maker mentions that this family participated in the non-violent
Gandhian Movement and as to how subsequently there has been a rise of
militarism in Indian sub-continent leading to appropriate resistance by
peace movement in India and world over. The film deals with the question of
costs extracted from the citizens in the name of national security, the
plight of the people living near the nuclear test sites, the effect of
uranium mining on the indigenous population, as to how enemies are invented
and how economies are inextricably tied to the production and sale of
weapons. While dealing with various resistance movement, the aforesaid
demonstration at Hutatma Chowk, Mumbai has been shown. Similarly while
giving the reactions of various people, the speech of Bhai Sangare has been
shown and, while pointing out as to how the race for the weapons leads to
corruption, the extracts from the Tehelka Tapes shown by a news channel are
reproduced in this film.

 

9. Then there is a reference to the peaceful opposition from the people of
Pokhran where the nuclear device was tested. There are voices of suffering
of the people staying nearby the sites of uranium mining. Then there is a
visit of the protagonist to Pakistan and the reactions of the people in
Pakistan to Pakistan’s bomb, positive as well as negative. There are various
shots of Pakistani children and their reactions and also those of Pakistani
artists supporting the cause of peace. Thereafter there is a coverage of the
family of a member of Indian Armed Forces who died during the Kargil War and
yet as to how his parents are espousing the cause of peace. There are
interviews of American scientists and historians, Indian activities,
reactions of various Indian political and social loaders and then there is a
visit to Japan and coverage of the peace movement in Japan. There are
various shots as to now Japanese float lanterns int eh memory of the people
lost and dead during the bombing. Finally, the film has an epilogue
containing amongst others the attack on World Trade Centre in U.S.A. and
sufferings of the Afghanistan children. The film ends with a photograph of
Gandhiji kissing a child and with a message as follows:-

 

“One thing is certain. If the mad race for armaments continues it is bound
to result in a slaughter such as has never occurred in history. If there is
a victor left, the very victory will be a living death for the nation that
emerges victorious. There is no escape from the impending doom save through
a bold and unconditional acceptance of the non-violent method with all its
glorious implications.”

10. Thus the film makes a powerful plea for peace and shows the damaging
effects of war and nuclear weapons. Aside from various visuals and
interviews, it makes an artistic use of songs, dances and music which have
their own impact. The maker of the film made available to the court the
complete script with sub-titles and its text also. This has helped us to
reproduce some of the salient features of the film as mentioned above.

 

11. Now coming to the two deletions and one addition, Mr. Sebastian, learned
counsel appearing for the Petitioner, submitted that both the two deletions
and one addition were totally uncalled for and affect the freedom of speech
and expression of the Petitioner in an unjustified manner and are
impermissible under the Indian Constitution. As far as the first deletion is
concerned, what is shows is a demonstration by some peace activists at
Hutatma Chowk, Mumbai where they decry the Indian bomb as well as the one
made by Pakistan. The demonstrators are not praising either of the two
bombs, but they are saying shame to the Hindu bomb and shame to the Muslim
bomb. Mr. Sebastian submitted that this is an expression of the
demonstrators and not of the Petitioner. The maker of the film is not
calling the bomb of India as a Hindu bomb or the one of Pakistan as Muslim
bomb. It is the demonstrators who are calling the bombs as such. He
submitted that the idea is to show to how these bombs are perceived by the
people at large including some of the activities for peace. While
recommending this deletion, the FCAT has commented in its order as follows:-

 

“Why give it or allow it to be given a religious colouring? Why communalise
it? India is a secular country and why the Indian bomb is to be called a
Hindu bomb and similarly why the Pakistan bomb is to be called a Muslim
bomb. It is not a bomb of the Muslims. It is a bomb of the Pakistani. By
calling it a Muslim bomb, it is being projected as if it belongs to all the
Muslim countries in the word.”

Mr. Sebastian submitted that this was not what was sought to be conveyed and
the entire reasoning was erroneous. In his submission, no reasonable viewer
will draw any such interference. In any case, what the documentary was
showing was a demonstration by some others who were deploring both the bombs
and the role of the film maker was only to show as to what was the state of
affairs.

 

12. Similarly with respect to the speech of Bhai Sangare, the only sentence
objected is “It is your culture.” The FCAT has commented on this sentence by
saying that it hurts not the Hindus alone but all those who are proud of,
adhere to and believe in the culture represented by Rama, Shankar and
Vishnu. On this aspect also, the reaction of Mr. Sebastian is that it is the
speech of a Dalit leader who is unhappy of the device being exploded on
Buddha Jayanti. Mr. Sebastian submitted that the Hindu Gods have weapons in
their hands to avoid injustice and Bhai Sangare’s speech was not to belittle
them. But, in any case, what Bhai Sangare wanted to convey was clear that
whereas Hindu Gods have weapons in their hands, Gautam Buddha did not have
any, and therefore the bomb should not have been exploded on his birthday.
The comment of Mr. Sebastian is that this is a reaction of a Dalit leader
who was a follower of Gautam Buddha and he is entitled to this comment. This
is not with a view to belittle any religion as such. As far as both these
cuts are concerned, Mr. Salvi, learned counsel appearing for the
Respondents, on the other hand, tried to justify them on the ground of the
same being in the interest of maintenance of public order. He submitted that
the description of the bomb as Hindu bomb or Muslim bomb or the comment on
the Hindu Gods will disrupt public order. In his submission, this is not
something which is permissable even under Sub-section (1) of Section 5-B of
the Act which lays down the principles for guidance in certifying the films.

 

13. As far as the addition is concerned, Mr. Sebastian submitted that this
was an attempt to place the government’s view point into the documentary,
and the Petitioner was not ready for that. The Petitioner has stated in the
petition in this behalf that Justice Venkataswami Commission, which was then
looking into the controversy arising out of these tapes, had passed an
interim order upholding the authenticity of these tapes. It is subsequently
pleaded in para 9 of the petition that “Any forced addition violates the
artistic freedom of the film maker to film and edit his material and to
decide what goes well with the film as a whole and what conveys the message
most truthfully and effectively”. Mr. Salvi, on the other hand, submitted
that the addition was necessary and desirable from the point of view of
decency as stated in Section 5-A(1) of the Act and further that no prejudice
would be caused to the Petitioner if any such addition is introduced.

 

14. In order to decide the question raised in the petition, it is necessary
to refer to some of the provisions of the Constitution and the Cinematograph
Act, 1952. Article 19(1)(a) of the Constitution grants all citizens of India
the right to freedom of speech and expression. This right is however subject
to the provision made in Sub-article 19(2). Article 19(2) reads as follows:-

 

“19. Protection of certain rights regarding freedom of speech, etc.

 

(1) …..

 

(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of
any existing 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 by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence.”

 

Cinematograph Act, 1952 has a similar provision in Section 5-B(1). This
Section 5-B(1) reads as follows:-

 

“5-B. Principles for guidance in certifying films. – (1) 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 interest of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or
morality, or involves defamation or contempt of court or is likely to incite
the commission of any offence.”

It is also material to note that Sub-section (2) of Section 5-B gives a
power to the Central Government to issue such direction as it may think fit
and set out the principles to guide the authority competent to grant
certificates under the said Act while sanctioning the films for public
exhibition. These guidelines are however subject to the provisions contained
in Sub-section (1) as Sub-section (2) itself directs.

 

15. This right of the film makers has come up for consideration in various
judgments from time to time. One of the earliest judgments in this behalf is
that of a Constitution Bench of the Apex Court (Per Hidayatullah, CJ.) in
K.A. Abbas v. Union of India, (1970) 2 SCC 780. That was a matter wherein
the Petitioner therein had made a documentary entitled “A Tale of Four
Cities”. that documentary amongst others had a scene on the redlight
district in city of Bombay and the Board of Film Censors had directed a cut
regarding some of those scenes. This decision was challenged in the petition
filed to the Apex Court. It is material to note that during the course of
the hearing before the Apex Court, the Attorney General stated that the
government had decided to grant “U” Certificate to the film without the cuts
previously ordered. Yet the Apex Court examined the question and made
certain observations on the question involved. It is also material to note
that the film purported to contrast the luxurious life of the rich in the
four cities with the squalor and poverty of the poor. As far as the matter
in hand is concerned, it is interesting to note what the Apex Court has
recorded in para 3 of that judgment.

 

“In one scene a fat and prosperous customer is shown riding a rickshaw which
a decrepit man pulls, sweating and panting hard. In a contrasting scene the
same rickshaw puller is shown sitting in the rickshaw, pulled by his former
customer. This scene is the epitomisation of the theme of the film and on
view are the statues of the leaders of Indian Freedom Movement looking
impotently from their high pedestals in front of palatial buildings, on the
poverty of the masses.”

It is relevant to note that though the aforesaid scene in the documentary
had a subtle comment while showing the statues of the leaders of Indian
Freedom Movement, the Films Censor Board had not thought it necessary to
direct any deletions.

 

16. For our purpose, what the court has observed in para 49 and 50 of the
aforesaid judgment is relevant and those observations are:-

 

“49. …..The standards that we set for our 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 for
ever from human thought and must give scope for talent to put them before
society…..”

 

“50. …..Therefore it is not the element of rape, leprosy, sexual
immorality which should attract the censor’s scissors but how the theme is
handled by the producer……” (Underlining supplied)

 

17. the next judgment relied upon by the Petitioner is in the case of Ramesh
v. Union of India reported in (1988) 1 SCC 668. That was a decision
concerning a TV Serial by name “Tamas”, which was on the backdrop of the
communal tension before the partition of India. The question before the
court was with respect to “U” Certificate granted by the Central Board of
Film Censors. A dispute was raised with respect to certain scenes in the
film and the effect thereof on common men. In para 13 of the judgment, the
Apex Court referred to the judgment of Vivian Bose J. (as he then was in the
Nagpur High Court) in the case of Bhagwati Charan Shukla v. Provincial
Government reported in AIR 1947 Nagpur 1. The court quoted with approval the
observation of the learned Judge 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 of those who scent
danger in every hostile point of view.” The observation of the Apex Court in
para 21 of the judgment to the following effect is quite apt about our
matter also.

 

“….. If some scenes of violence, some nuances of expression or some events
in the film can stir up certain feelings in the spectator, an equally
strong, lasting and beneficial impression can be conveyed by scenes
revealing the machinations of selfish interests, scenes depicting mutual
respect and tolerance, scenes showing comradeship, help and kindness which
transcend the barriers of religion. Unfortunately, modern developments both
in the field of cinema as well as in the field of national and international
politics have rendered it inevitable for people to face the realities of
internecine conflicts, inter alia, in the name of religion. Even
contemporary news bulletins very often carry scenes of pitched battle or
violence. What is necessary sometimes is to penetrate behind the scenes and
analyse the causes of such conflicts…..”

18. The next judgment to be noted is in the case of S. Rangarajan v. P.
Jagjivan Ram reported in (1989) 2 SCC 574. It was a case wherein the
producer of a Tamil film by name “Ore Oru Gramathile” (In One Village) had
filed an appeal against the judgment of Madras High Court, which had revoked
the “U” Certificate granted to the film. The film was regarding the caste
conflict. It depicts as to how a girl of a higher caste in certain
circumstances takes the advantage of the reservation meant for a backward
class, yet works for the benefit of the society and the situation arising
thereform. The Apex Court allowed the appeal and directed “U” Certiifcate to
be issued. In para 35 of the judgment, the Apex Court observed that “the
reasoning of the High Court runs afoul of the democratic principles to which
we have pledged ourselves in the Constitution. In democracy it is not
necessary that everyone should sing the same song.” The court observed in
para 53 as follows:-

 

“Freedom of expression which is legitimate and constitutionally protected,
cannot be held to ransom by an intolerant group of people. The fundamental
freedom under Article 19(1)(a) can be reasonably restricted only for the
purposes mentioned in Article 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 operations 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.”
(All underlinings supplied)

19. Then we have the judgment in the case of Bobby Art International v. Om
Pal Singh Hoon reported in (1996) 4 SCC 1, wherein the question was with
respect to objection on the basis of decency or morality to certain scenes
in the film by name “Bandit Queen”. The film was on the life of an erstwhile
dacoit one Phoolan Devi and the objection was to some of the scenes
involving rape and abusive language. The court allowed the appeal of the
producer. In para 17, it quoted with approval the earlier quoted
observations from para 49 from the case of K.A. Abbas (supra). In para 22
the court observed that “The film must be judged in its entirety from the
point of view of its overall impact.” (Underlining supplied)

 

20. The Petitioner has lastly relied upon a recent judgment of a Full Bench
of this Court in Anand C. Dighe v. State of Maharashtra reported in 2002 (1)
BCR 57. That was a matter concerning a play in Marathi by name “Mee Nathuram
Godse Boltoy” (I am Nathuram Godese Speaking) which sought to explain the
actions of Nathuram Godse who murdered Mahatma Gandhi. The Government of
Maharashtra in exercise of its powers under Section 95(1) of Code of Civil
Procedure, 1973 had declared that every copy of that play and its
translation in Gujarati or any other language shall stand forfeited to the
Government. Section 95(1) of the Code deals with the powers to the State
Government declaring certain publications forfeited and to issue search
warrants if the circumstances therein are satisfied. The section provides
that where any newspaper or a book or any document wherever printed appears
to the State Government to contain any matter, the publication of which is
punishable under Section 124-A or Section 153-A or Section 153-B or Section
292 or Section 293 or Section 295-A of the Indian Penal Code, the State
Government may issue the necessary notification of forfeiture. Section 153-A
deals with promotion of enmity between different groups on the grounds of
religion, race, place of birth, residence, language, etc. and doing acts
prejudicial to maintenance of harmony. Section 295-A deals with deliberate
and malicious acts intended to outrage religious feelings of any class by
insulting its religious beliefs. The Full Bench accepted the challenge to
the forfeiture. In para 19, the Full Bench observed as follows:-

 

“The Government in the present case seems to have acted in the wake of the
criticism voiced against the play and of the sense of outrage of those who
believe that the play unfairly criticizes the Father of the Nation. The
Father of the Nation holds a position which is sui generis in the nation.
The nation owes its freedom to his relentless struggle for independence from
a foreign power. His message of peace and non-violence should provide a
beacon to these troubled times. But, it is important to realise that there
are eternal values on which the Constitution of a democracy is founded.
Tolerance of a diversity of view points and the acceptance of the freedom to
express of those whose thinking may not accord with the mainstream are
cardinal values which lie at the very foundation of a democratic form of
Government. A society wedded to the Rule of law, cannot trample upon the
rights of those who assert views which may be regarded as unpopular or
contrary to the views shared by a majority. The law does not have to accept
the views which have been expressed by the petitioner in the play in order
to respect, the rights of the petitioner as a playwright to express those
views. Respect for and the tolerance of a diversity of viewpoints is what
ultimately sustains a democratic society and Government. The right of the
playwright, of the artist, writer and of the poet will be reduced to husk if
the freedom to portray a message whether it be in canvas, prose or verse is
to depend upon the popular perception of the acceptability of that message.
Popular perceptions, however strong cannot override values which the
constitution embodies as guarantees of freedom in what was always intended
to be a free society.”

21. From what is stated above, it is clear that the freedom of speech and
expression guaranteed under Article 19(1)(a) has come to be scrupulously
protected by the courts rom time to time. As held in para 34 in the case of
K.A. Abbas (supra), freedom of speech and expression admits of extremely
narrow restraints. The judgment says in para 49, “the standards that we set
for our censors must make a substantial allowance in favour of freedom thus
leaving a vast area for creative art to interpret life and society.” What is
to be seen is as to how the entire theme is handled by the producer. Showing
of certain scenes from the red light area shown in the concerned documentary
was not held to be affecting decency or morality. Statutes of leaders of
Indian Freedom Movement looking impotently from their high pedestals in
front of palatial buildings, on the poverty of the masses was not even
objected by the censors. On this background, we come to the portons objected
in the present documentary. Here the Petitioner is trying to canvass the
cause of peace, and in that context points out as to how a war unnecessarily
leads to an unjustified production of arms and weapons and at times this is
utilised by the politicians towards corrupt purposes. This is sought to be
pointed out by referring to the Tehelka Tapes, wherein a leaders of Samata
Party (to which the Defence Minister belongs) is seen meeting a fake arms
dealer and a leader of ruling Bhartiya Janata Party is seen receiving
certain amount similarly from a fake arms dealer. This is followed by
Newspaper Clippings of Bofors Scam and a commentary that the earlier ruling
Congress Party was voted out of power following a scandal involving the
Swedish Bofors Gun. The counsel for the Respondents sought to criticise this
depiction on the ground of decency and a note was sought to be added that
the tapes are under a judicial scrutiny. In our view, it is for the
Petitioner to decide what he must depict in the context of the subject. On
the other hand, it is submitted by the Petitioner that in its interim
rulings the Venkataswami Commission has upheld the validity of tapes. Mr.
Sebastian has rightly commented that this is a partial updating and the
documentary is complete without any such addition. The FCAT has no objection
to the tapes being shown. It however wants an addition that the tapes are
under judicial scrutiny. As observed by Vivian Bose J. in the earlier quoted
judgment, it is for the persons watching to draw their inference. In our
view, the addition was therefore not called for at all.

 

22. Then we turn to the two deletions, namely one on Hindu bomb and Muslim
bomb and the other on speech of a Dalit leader where the states that using
weapons is “culture” of Hindus” and indicates that it is not so with the
Buddhist. In Ramesh v. Union of India (supra), there were large number of
scenes depicting the communal tension and riots before the partition of
India. That was not held as prompting any communal disharmony leaving it to
the strong minded persons to draw their inferences. Besides, the entire
message of that serial “Tamas” was taken into consideration. In the instant
case, even the persons giving slogans as seen from the documentary are
decrying the bombs made by India and Pakistan. It is their perception, which
is shown in the documentary, when they describe the bombs as Hindu bomb and
Muslim bomb. The Petitioner is not calling tem as Hindu bomb or Muslim bomb.
There is therefore no necessity to delete the particular scene on the ground
tat it would affect the public order. If the scenes of riots in the
television series (which are such at the residences of various people),
could not affect the public order, there is no reason for anybody to imagine
that any such slogans would affect the public order. It is material to note
that in para 21 of its judgment on “Tamas” serial, the Apex Court has noted
that even contemporary news bulletin very often carry scenes of pitched
battle or violence. The court has also noted that modern developments, both
in the field of cinema as well as in the field of national and international
politics, have rendered it inevitable for people to face the realities of
internecine conflicts, inter alia, in the name of religion. Any such
expression or event in the documentary cannot be truncated and looked at
separately as affecting the public order.

 

23. In para 48 of S. Rangarajan’s case (supra), the Apex Court referred to a
judgment of the Federal Court in Niharendu Dutt Majumdar v. Emperor, AIR
1942 FC 22. The question involved was with respect to the vulgar and abusive
outburst against the government by the accused. While acquitting the person
from the charges under the Defence of India Rules, the Federal Court
observed as follows:-

 

“The speech now before us is full of them… But we cannot regard the
speech, taken as a whole as inciting those who heard it, even though they
cried “shame shame” at intervals, to attempt by violence or by public
disorder to subvert the government for the time being established by law in
Bengal or elsewhere in India.

Thus slogans “shame, shame” by themselves cannot be said to create a
situation affecting public order though the FCAT has tried to contend that
Indian bomb is not a Hindu bomb nor the Pakistani bomb that of Muslims world
over. Thee is no need to have any quarrel with this proposition. However,
that is one view point. In fact, to buttress the same, one must know as to
whether there is another perception and if so what is it. If the scene is
deleted, people will not know as to what is the perception of the bombs in
one section of the society. Mr. Sebastian in fact submitted that even the
demonstrators in the scene are disapproving such perception. In any case, we
are concerned with the question as to whether such an expression by itself
will affect public order. As indicated in the above authority, the whole
speech or the scene is to be considered. In our view, it is erroneous to say
that this depiction, when it is seen in its entirety, will lead to communal
tension or public disorder and we reject this submission.

 

24. Similarly, in respect of the second out, namely one from speech of Bhai
Sangare, only one sentence, namely “This is your culture”, is recommended
for deletion. We have seen the scene and read full speech of Bhai Sangare.
He is unhappy at the bombs being exploded on Buddha Jayanti and he states
that Buddha stood for peace and he did not use any weapon. As against that,
Hindu Gods have weapons in their hands. It is in this context that he has
commented that “This is your culture.” Bhai Sangare is entitled to his
expression. Again, the question is whether one sentence can be read
separately and can be criticised as affecting public order? What is to be
noted is that the entire speech is made to oppose the manufacture of the
bomb. It is also critical of the device being exploded on Buddha Jayanti. It
is with a view to point out the contrast between Buddha and Hindu Gods that
the speaker has referred to the fact that they have weapons in their hands.
That by itself cannot amount to creating any conflict or an occasion to
affect the public order.

 

25. In S. Rangarajan’s case (supra), the entire film was devoted to the
caste conflict and as to how a girl from a higher caste takes the advantage
of the benefits meant for the reserved category. In para 50 of that
judgment, the court has referred to the plea put forward by the Tamil Nadu
Government. The State Government alleged that some organisations of Schedule
Castes / Scheduled Tribes has been agitating that the film should be banned
as it hurts the sentiments of the people belonging to Scheduled Castes/
Scheduled Tribes. In para 51 of the judgment, the court noted that the film
had won National Award and then the court put the anguished question to
itself “What good is the protecton of freedom of expression if the State
does not take care to protect it?” In the film, thee is a scene wherein the
heroin states that “Bharat Mata” was in the hands of those who were
instigating masses on the basis of caste and language, as noted in para 32
of the judgment of the Apex Court. The High Court had found that portion to
be objectionable. The Supreme Court commented that it failed to understand
as to how this expression in the film wit criticism of reservation policy
will affect the security of the State.

 

26. Judges by the standards, which the FCAT has sought to apply in the
present case, ‘Mee Nathuram Godse Boltoy” was a fit case to uphold the order
forfeiting the book inasmuch as it sought to explain the murder of Mahatma
Gandhi. Yet the Full Bench of the High Court has in clear terms held that
even though the sense of outrage at the unfair criticism of the Father of
the Nation could be justified, the tolerance of a diversity of view points
and the acceptance of the freedom to express are cardinal values which lie
at the foundation of a democratic form of Government. As observed in
Ranjaranjan’s case (supra), in democracy it is not necessary that everyone
should sing the same song and again as observed in para 53 of that judgment,
open criticism of government policies and operations is not a ground for
restricting expression. In fact, this democratic spirit is best explained in
the dissenting judgment of Vivian Bose J. in S. Krishnan v. State of Madras
reported in AIR 1951 SC 301. The Petitioner was detained under the
Preventive Detention Act and had sought to challenge it. Bose J. in para 64
commented as follows:-

 

“It is perhaps ironical that I should struggle to uphold these freedoms in
favour of a class of persons, who if rumour is to be accredited & if the
list of their activities furnished to us is a true guide, would be the first
to destroy them if they but had the power. But I cannot allow personal
predilections to sway my judgment of the Constitution. As Lord Justice
Scrutton rEmarked in Rex v Home Secretary, (1923) 92 L.J.K.B. 797:

 

“It is, indeed, one test of belief in principles if you apply them to cases
with which you have no sympathy at all.”

& as Homes J. of the United States Supreme Court said, speaking of the
American Constitution,

 

“If there is any principle of the Constitution that more imperatively calls
for attachment than any other ‘it is the principles of free thought – not
free thought for those who agree wit us but freedom for the thought that we
hate.”

27. In the present case, the Petitioner is trying to espouse the cause of
peace and against spread of weapons, communal hatred and war. It is in the
context of making of this documentary that the above referred three scenes
are incorporated therein. It is a matter of his legitimate right to decide
as to what should be included therein and we have no hesitation in saying
that neither of the two cuts recommended are in any way justified. The
Petitioner has only recorded a demonstration in one scene and then the
speech of a Dalit leader in another. It was his choice to include both these
scenes and even what is stated by the demonstrators or in the speech of the
Dalit leader, is not conflicting with the theme of the documentary.
Similarly as far as the addition recommended is concerned, the Petitioner
submits, and in our view rightly, that the same was totally uncalled for. It
is for the Petitioner to decide and it is in the context of the subject that
the particular scenes of the political leaders appear. In this context, it
is material to note that this is not the first time that the documentaries
made by the Petitioner are obstructed. Earlier, a documentary which was made
by him on “Shaheed Bhagat Singh” was not being telecast on Doordarshan and
the Petitioner had to file a writ petition to seek an order in that behalf,
which a learned Single Judge had granted in his judgment reported in 1997
(1) BCR 9. Similarly later on when the Petitioner made another documentary
film “Ram Ke Nam”, that was also refused screening by Doordarshan inspite of
the fact that it won various Awards. The Petitioner had to approach this
court once again and a learned Single Judge of this court by his judgment
directed telecasting of the said film, as reported in (1997) 3 BCR 438.

 

28. Mr. Sebastian submits that the Petitioner stands for peace and for the
Gandhian ideology which is not being approved by the political rulers of the
day and it is therefore that the present documentary is also being put to
variety of difficulties. Various cuts were suggested from time to time and
finally now it has come to three cuts. It is material to note that strangely
enough, a petition was filed concerning the present documentary being Writ
Petition (Lodging) No. 646 of 2003 by Film Censor Board for quashing the
order of the FCAT restricting the cuts only to two in number and one
addition, and submitting that there should be 21 cuts as originally
recommended. Wisely enough, the authorities of the Respondents realised it
in time that such a petition could not be filed by a deciding authority and
the same was therefore withdrawn as recorded in the order passed by this
Bench on 5th April 2003. This however goes to support the submission of Mr.
Sebastian that the impugned order is passed to harass the Petitioner and to
see to it that he is put into difficulties and the documentary made by him
is put to difficulties some way or the other.

 

29. It is also material to note that when this petition was being argued, a
further affidavit was filed on behalf of the Respondents affirmed on 23rd
March 2003 to contend that the entire epilogue in the documentary shown to
us was not there is the original documentary shown to the Board. This is
denied by the Petitioner and rightly so by filing a reply on 26th March
2003. We have seen the documentary carefully and until the end of the film
(including the epilogue) the word “censored” was clearly visible when the
film was shown to us. The stand taken by the Respondents is false and most
unfortunate to say the least.

 

30. For the reasons stated above, we hold that the two cuts and one
addition, as recommended under the impugned order, affect the freedom of
speech and expression of the Petitioner under Article 19(1)(a) of the
Constitution. They go beyond the parameters prescribed under Sub-section (1)
of Section 5-B of the Cinematograph Act, 1952. Accordingly, we allow this
petition and set aside the impugned order passed by the FCAT and direct the
Respondents to issue “U” Certificate for public exhibition of the
documentary with no deletion and/or addition therein. The certificate shall
be issued within one week from receipt of an authenticated copy of this
order. Rule is made absolute accordingly.

 

31. Mr. Sebastian presses for the costs of the petition. In the facts of the
present case and on the background as narrated above, we would have been
justified in awarding appropriate costs. However, only because the impugned
order is a quasi judicial order passed by a Tribunal, we are refraining from
awarding the costs.

 

32. Before we conclude, we would like to record the oft stated proposition
that an issue may be one but there are many facets of looking at it. It is
quite possible that the persons is authority today may feel that what they
see is the only correct facet of it though it may not be so. It is only in
democratic form of government that the citizens have the right to express
themselves fully and fearlessly as to what is their view point towards the
various events which are taking place around. By suppressing certain view
point, it is not only the propagator of the view point who suffers but it is
the society at large and equally the people in authority who suffer. This is
because they fail to receive the counter-view and it may eventually lead to
an immense damage to the society due to an erroneous decision at the hands
of the persons in authority in the absence of the counter-view. That apart,
the freedom of speech and expression is important not merely for the
consequences that ensue in the absence thereof but since the very negation
of it runs as an anti-thesis to basic human values, instincts and
creativity. It is high time that the persons in authority realise the
significance of freedom of speech and expression rather than make and allow
such attempts to stifle it.

 

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