Kerala High Court
Union Of India Represented By The ... vs Jayan Cherian on 2 December, 2016
Author: Devan Ramachandran
Bench: Thottathil B.Radhakrishnan, Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938
WA.No. 2293 of 2016 IN WP(C).27418/2016
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JUDGMENT IN WP(C) 27418/2016
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APPELLANTS/RESPONDENTS:
1. UNION OF INDIA REPRESENTED BY THE SECRETARY,
MINISTRY OF INFORMATION AND BROADCASTING,
"A" WING, SHASTRI BHAVAN, NEW DELHI-110 011.
2. THE REGIONAL OFFICER,
CENTRAL BOARD OF FILM CERTIFICATION,
CHITRANJALI STUDIO COMPLEX, THIRUVALLAM,
THIRUVANANTHAPURAM-695 027.
3. THE REGIONAL OFFICER, CENTRAL BOARD OF FILM
CERTIFICATION, 35-HADDOW ROAD,
SHASTRI BHAVAN, CHENNAI-600 006.
BY ADV. SRI.K.R.RAJKUMAR, C.G.C.
RESPONDENT/PETITIONER:
JAYAN CHERIAN, KALAPURACKAL HOSUE, RANDAR P.O.,
MUVATTUPUZHA, ERNAKULAM (DISTRICT), KERALA-686 673,
REPRESENTED BY HIS PWOER OF ATTORNEY HOLDER:
jIJO KURIAKOSE, AGED 32 YEARS, S/O KURIAKOSE,
KAALAYIL HOUSE, MAALAM PO, KOTTAYAM-686 031.
R1 BY ADV. SRI.SANTHOSH MATHEW
R1 BY ADV. SRI.ARUN THOMAS
R1 BY ADV. SRI.JENNIS STEPHEN
R1 BY ADV. SRI.ALPHIN ANTONY
R1 BY ADV. SRI.VIJAY V. PAUL
R1 BY ADV. SMT.MARIA ROY
R1 BY ADV. SMT.VEENA RAVEENDRAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-12-2016,
THE COURT ON 02-12-2016 DELIVERED THE FOLLOWING:
Thottathil B. Radhakrishnan
&
Devan Ramachandran, JJ.
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W.A.No.2293 of 2016
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Dated this the 2nd day of December, 2016
JUDGMENT
Devan Ramachandran, J.
Certain cinematograph films are born to controversies and some of them become controversy's favourite child. One such film is the one with the title 'KA Bodyscapes', a malayalam film produced and directed by the respondent. This is for good reason, even going by the description of the movie by the first respondent himself in the writ petition. We extract the description of the film offered by the first respondent in the writ petition as under:
"The petitioner is the producer, director, and scrip writer of the feature film, "KA Bodyscapes"
(hereinafter referred to as the "Film"). The film portrays through its protagonists the attitude of society in Kerala towards homosexuality and feminism. The Film revolves around the experiences of the three protagonist in the Film, Haris, a gay free WA2293/16 2 spirited painter, his lover interest, Vishnu, a Hanuman bakth from a conservative Hindu right-wing family and Sia a feminist from a conservative Muslim family.
The film touches upon the aggression shown by right wing activists towards artists and writers. The films portrays how the first solo exhibition of the struggling artist Haris, is brunt down by right-wing activists on account of nude paintings of men and how Vishnu is taken to a doctor to be cured of his homosexuality. The film also highlights, the struggles of their friend Sia, who rebels against dehumanising surveillance at her workplace and misogynist punishments meted out to menstruating women.
2. The first respondent applied for certification of the cinematograph film by the Board of Certification ('the Board' for brevity) for the purpose of public exhibition. It appears that pursuant to his application, the Examining committee examined the film and recommended that the film be considered by the Revising Committee to be approved by the Chairman of the Board. The pleadings and averments on record would show that the Revising Committee was constituted on 15.07.2016 as per the provisions of the Cinematography (Certification) Rules, 1983 ('the Rules' for brevity), which was presided over by WA2293/16 3 a Board member and comprised of eight Advisory panel members of the Board. It is also now beyond contest that the Revising Committee unanimously felt that the film should be refused certificate since it was not fit for public exhibition. The petitioner, thereafter, was issued with Exhibit P2 communication dated 25.07.2016 by the Regional Officer of the Board at Thiruvananthapuram, which notified him that the Board has come to the conclusion that certificate cannot be issued for exhibition of the film for certain reasons that were annexed to it, which is produced as Exhibit P2(2) in the writ petition. The reasons that were accorded for refusal of the certificate, as is discernible from the annexure, is extracted as under:
"The Revising Committee felt that the entire content of the Malayalam feature film 'KA BODY SCAPES' is ridiculing, insulting and humiliating Hindu Religion, in particular portraying Hindu Gods in poor light. Derogatory words are used against women. The Hindu God 'Hanuman' is shown as coming in the Books titled 'I am a Gay' and other Homo-sexual books. The film has also references to lady WA2293/16 4 masturbating, highlighting 'Gay' by many 'Gay' posters. The film offends human sensibilities by vulgarity, obscenity or depravity. As the film violates guidelines 1(a), 1(d), 2(vii), 2(ix), 2(xii), 2 (xiii), 3(i) & 3(ii), therefore, the Certificate is 'Refused'."
3. The first respondent challenged the communication and the annexure, namely, Exhibits P2 and P(2) in the writ petition on various grounds. He sought to quash the said orders as having been issued without proper application of mind and without adherence to the imperative provisions of the Act and the Rules. The matter was heard in detail by the learned Single Judge and by judgment impugned in this appeal, the learned Judge was pleased to direct the Revising Committee of the Board to give notice to the petitioner indicating the reason for banning the film with specific reference to the theme of the film and relevant guidelines. The petitioner, thereafter, was directed to be heard by them with respect to his consent and volition to delete objectionable scenes or to modify the theme of the WA2293/16 5 movie as are or is necessary to make it in conformity with the guidelines. The learned Single Judge also directed that if the Revising Committee still maintains that the film is not suitable for public exhibition, then orders be issued stating the objections as to the theme with reference to the specific scenes as is required by the guidelines. These directions have been impugned by the appellants in this writ appeal.
4. We have heard Sri.Rajkumar, the learned Central Government Standing counsel appearing on behalf of the appellants and Sri.Santhosh Mathew, the learned counsel appearing on behalf of the respondent.
5. At the outset, we make it clear that we are not entering into or dwelling into the contours and vicissitudes of the concepts of vulgarity, obscenity, depravity or such other or to make an assessment as to whether the film should be granted a certificate or otherwise based on its content. We are aware that these WA2293/16 6 are all matters completely within the domain of the competent authorities under the Act and Rules and we are quick to concede that we do not have the expertise to consider the issue as to whether the film in question deserves to be certified or otherwise under the provisions of the Act. We, however, recognise that the cinematograph film is a work of art created by its makers and producers, most of the time with great passion, investing large quantity of money with the fond hope of it reaching the largest audience. The freedom of expression, the right to be treated equally and the guarantee of fair hearing before the heavy investments in films are deracinated belong to every citizen under the constitution. However, such freedom cannot be a menace and therefore, is subject to socially necessary restraints sanctioned by the Constitution. As was held by the Hon'ble Supreme Court in K.A.Abbas v. Union of India ((1970) 2 SCC 780), the appeal of a motion picture, its WA2293/16 7 versatility, realism and its co-ordination of the visual and aural senses has greater capacity of stirring up emotions and making powerful mental impact so much so the treatment of this form of art is on a different footing with pre-censorship may well be regarded as a valid classification.
6. This impact both visual and mental, was obviously recognised by the Parliament, which led to the legislation of Cinematography Act, 1952 ('the Act' for brevity). This Act was intended to make provisions for the certification of the cinematograph films for exhibition and for regulating exhibition by means of cinematographs. Obviously, this is a special enactment to ensure that the medium of film remains responsible and sensitive to the values and standards of the society while ensuring that artistic expression and creative freedom are not unduly curbed. The Guidelines for Certification of Films for Public Exhibition was published in the Gazette of India on WA2293/16 8 06.12.1991. These guidelines have been issued under the powers conferred by Section 5B(2) of the Act, which reads as follows:
"Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition."
7. The domain of the Act is therefore to ensure that the medium of film provides a clear and healthy entertainment and satisfactory aesthetic value with its themes being responsible to social change. It is for this purpose that every person who desires to exhibit any film shall apply to the Board for a certificate under Section 4 of the Act. The Board, after examining or having the film examined shall, may sanction the film for public exhibition either in an unrestricted manner or in a restricted manner-restricting its view to adults or to a particular section or class of persons having regard to the nature, content and theme of the film and for such WA2293/16 9 purpose, it can also direct the applicant to carry out such excisions or modifications in the films as are necessary before sanctioning of the film. However, the Board also has the power to refuse the film for public exhibition.
8. As far as the present case is concerned, the orders of the Board impugned by the respondent are in the nature of refusal to sanction the film for public exhibition under Section 4(iv) of the Act. This order is very crucial to the respondent because once the Board refuses to sanction the film for public exhibition, then obviously no question of certification applies and no certificate would then be obtained to the petitioner with respect to his film enabling him to exhibit it. It is, therefore, necessary that it is ensured that the Board has acted completely and in conformity with the Act and Rules and within the guidelines as are applicable.
9. The gravamen of the allegations of the petitioner is that Exhibits P2 and P2(2) do not in any WA2293/16 10 manner explain as to why his film has been refused a certificate. He, of course, tries to justify his film by contending that even though it contains scenes exhibiting homosexuality, nudity and even though some of the dialogues are replete with expletives and invitives, that does not render the whole film vulgar or obscene, since they have to be seen in the larger layout and context of the theme. The assertion of the petitioner essentially is, therefore, that individual scenes culled out of the context may given the colour of obscenity or vulgarity but the scenes when viewed within the variegated layout of the entire theme of the film would not render it so but would assimilate into a large cinematic experience of social relevance and contemporary standards and model. The learned Single Judge had considered these contentions and was guided by the judgments of the Hon'ble Supreme Court in Ranjit D.Udeshi v. The State of Maharashtra (AIR 1965 SC 881) and K.A. Abbas (supra) and held that WA2293/16 11 looking at one or two scenes or expressions in the film it cannot be said that the film offends religious sentiments or that it is vulgar and obscene and it is on such conclusion that certain directions have been issued in the judgment.
10. The appellants, being Union of India and the Regional Officers of the Board at Thiruvananthapuram and Chennai, have impugned the judgment of the learned Single Judge focally on the ground that the Revising Committee has come to a conclusion that the entire film, taken as a whole and not merely some scenes, is unsuitable for public exhibition since it offends various guidelines as is mentioned in Exhibit P2(2). According to them, therefore, an order directing them to reconsider the issue would be of no consequence since the Committee has already taken a view unanimously to refuse certification to the film.
WA2293/16 12
11. We have already indicated that we are not, at least at this time, concerned about the issue of vulgarity, obscenity or depravity and we are also aware that these are notions not capable of exact import and definition. What is lachearous to one may be elevating to another and norms and conditions of such notions can vary from the obsolete and primordial to the contemporary based on the subjective experiences and levels of tolerance of persons who are exposed to such. We do not deem it necessary to enter into such enquiry regarding this film since we are firmly of the view that it is best left to the experts under the Statute to decide these issues. We are, however, concerned mainly of securing and ensuring processual justice to the respondent and to ensure that his work of art, obviously involving large expenditure and investment, do not get waylaid and lost on account of the procedural irregularity or deficiency. Our attempt at this time is no more than to do this.
WA2293/16 13
12. We notice that as per Rule 22 of the Rules the Examining Committee will have to examine the film and after examination, each member of the committee will have to record his opinion in writing in a prescribed form and state whether he/she considers that film is suitable for public exhibition, unrestricted or restricted or if the film should be refused a certificate. After such a report is obtained from the committee, the film can be certified if the report is in favour of such certification or if it is to the contrary, the applicant may request the Chairman of the Board to refer it to the Revising Committee. This is under the provisions of Rule 24 of the Rules. In the case at hand, the film was referred to the Revising Committee by the Examining Committee itself perhaps because of the perceived scandalous nature of the contents of the film. The Revising Committee, thereafter, saw the film and after examination, each of the members of the committee would have, as per the Rules, recorded their WA2293/16 14 recommendations in a prescribed form spelling out clearly as to whether the film can be granted a certificate or whether it ought to be refused. It is obvious from Exhibits P2 and P2(2) that the revising Committee held that the film cannot be granted a certificate for the reasons that have been stated in Exhibit P2(2) extracted supra.
13. The respondent had impugned these reasons on the ground that they are not speaking, are laconic and issued without assigning properly considered reasons, except by referring to the clauses in the Guidelines but without stating as to how scenes in the film or it as a whole offends such Guidelines. This contention has been approved by the learned Single Judge. It is, therefore, that the directions have been issued to the Revising Committee to reconsider the case in the impugned judgment.
WA2293/16 15
14. We are not in any way in disagreement with the judgment impugned in this appeal. In fact, we are of the view that the learned single Judge has considered the issue with great circumspection. However, in the peculiar circumstances that the film is placed in, we are of the view that no purpose would be served in directing the same Revising Committee to reconsider the case and for the respondent, the maker of the film, in making suggestions to the said committee either for removal of the scenes or for change of theme as has been directed by the learned Single Judge. The Revising Committee has unequivocally asserted in the counter affidavit placed in the writ petition on their behalf that the committee has unanimously found the film to be incapable of modification and that virtually every scene in the movie is objectionable and requires to be excinded.
15. We, therefore, ventured into a search within the provisions of the Act and Rules to ascertain if another WA2293/16 16 method can be adopted in order to ensure that the film of the respondent was not denied certificate without procedural safeguards while at the same time, complying with the spirit and the essence of the judgment of the learned Single Judge. Our search thus brought us to the proviso to Rule 24 of the Rules, which reads as under:
"Provided that where the Chairman disagrees with the decision of the majority of the Committee, the Board shall itself examine the film or cause the film to be examined again by another Revising Committee and that the decision of the Board or the second Revising Committee, as the case may be, shall be final."
16. We are completely aware that the Board itself can examine the film only when the decision of the majority of the Revising committee does not find approval of the chairman. We are also, of course, aware that in this case the Chairman finds no such disagreement with the decision of the committee. At least, no such disagreement has been brought to our notice. In normal circumstances, therefore, it would not be possible for the Board to WA2293/16 17 examine the film in the absence of orders of this Court. We are proposing to make certain directions here since we are of the view that the nature of the film, its theme and content would require a more tolerant examination by the highest Authority under the act and Rules. We do not see a higher authority than the Board for this purpose.
17. We are, therefore, making the following directions to the Board because we are in affirmation that the true import of censorship and examination of films under the Act and Rules is to render the film, as far as possible, viewable by attuning it to be in conformity with the statutory Guidelines and not to condemn it without a fair process. The fundamental desideratum of all exercise under the Act will be to make a film copacetic and suitable for viewing applying the statutory guidelines rather than condemning it into the confines of the no- access. We are certain that we are not proposing any WA2293/16 18 latitude or leniency to the respondent with respect to the application of the statutory Guidelines in examination of his film but we are only indicating that the true nature of censorship should not be to ban and render it still-born but to allow it parturition by extirpatory process of removal of the objectionable content, if possible.
18. We, therefore, are of the view that, in the very peculiar facts and circumstances of this case and taking into account the specific tenor and content of the film, the Board itself shall examine it and a decision shall be entered into by it after recording the reasons and recommendations as to if sanction can be given to the film for public exhibition and if it can be certified for such. We make it clear that these directions are being given only in the peculiar circumstances of this case and is not intended to operate as a precedent in future even in cases where similar facts are alleged. Since the petitioner has invested considerable time, energy and money into WA2293/16 19 his project and since films of this nature will lose contemporary relevance and its impact would be completely effaced unless screened at the period of time contemporaneous to its production. We, therefore, deem it necessary that the Board shall complete the exercise of examination of the film and inform the respondent as to the modifications or excisions to be made to the scenes of the film, including its dialogues so as to bring it inconformity with the statutory Guidelines and provide him an opportunity to carry out such modifications.
19. We have noticed that the Rules provide for strict time lines within which all exercise of the examination and certification of films are to be done. The relevant time frame is encompassed in Rules 41(5)(a) and 41(7)(b) of the Rules. It would, therefore, be appropriate that we also fix the time frame within which, the exercise that we are directing the Board to make, will be required to be completed.
WA2293/16 20
20. In the above circumstances, we direct the Board to immediately take up the film of the respondent for examination by it and to inform him after such examination if the film can be sanctioned for public exhibition with such modifications or deletions, as are required, of particular scenes or the theme of the film and if, on the contrary, the Board enters into a conclusion that the film cannot be so sanctioned for public exhibition, it will have to inform the petitioner as to the reasons for such conclusion and provide him with the details of the objections regarding the film so as to enable him to take such appropriate action, as he may be advised, under the provisions of the Act and Rules. Since Section 4(2) of the Act mandates that no action can be taken by the Board except after giving an opportunity to the applicant for representing his views in the matter. The Board shall, thereafter, notify the respondent and afford him an opportunity of being heard as per this mandate. Final WA2293/16 21 orders can, thereafter, be passed by the Board as per the provisions of the Act and Rules, thus enabling the respondent to take further recourse under the Statute. We direct the Board to compete this exercise within a period of three months from the date of receipt of a copy of this judgment.
Appeal is ordered accordingly. There will be no order as to costs.
Thottathil B. Radhakrishnan, Judge Devan Ramachandran, Judge tkv