Madras High Court
S.Dinesh Jacob Durairaj vs South Indian Artistes Associations on 8 November, 2019
Author: M. Sathyanarayanan
Bench: M. Sathyanarayanan
WP.No.31465 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 08.11.2019
CORAM
THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE N.SESHASAYEE
WP.No.31465 of 2019
S.Dinesh Jacob Durairaj ...Petitioner
Vs
1.South Indian Artistes Associations
No.16, Habibullah Road, T.Nagar
Chennai 600 017.
2.Tamil Nadu Film Directors Association
No.168, Anthony Salai,
Devi Karamari Amman Nagar,
Valasaravakkam,
Chennai 600 087.
3.Tamil Nadu Films Division,
Taramani, Chennai 600 113.
4.Director of Information and
Public Relations,
Ex- Officio Deputy
Secretary to Government,
Secretariart, Fort St.George, Chennai 600 009.
1/4
http://www.judis.nic.in
WP.No.31465 of 2019
5.The Commissioner of Police
Vepery Chennai 600 007. .... Respondents
PRAYER:- Writ petition filed under Article 226 of the Constitution of
India prays to issue a Writ of Mandamus directing the 5th respondent who
in turn to direct respondents 1 to 4 to implement and hero of the movie
should pronounce the statutory warning with words Knifes and sickles used
in this movie are made by paper and the colour water is used as blood
during violent scenes in the movies.
For Petitioner : Mr.S.Dinesh Jacob Durairaj
Party-in-Person
ORDER
[Order of the Court was made by M.SATHYANARAYANAN,J.,] The writ petition, styled as a Public Interest Litigation, is filed by a practicing lawyer (Enrolment No.1031/2015), stating among other things that he is also a President of “Makkal Thozhmai Sangam” and it is registered under the Tamil Nadu Societies Registration Act, 1975 and he claims to have running the said Society for the past 18 years helping poor people and fulfilling their needs. The petitioner expressed a grievance that the movies nowadays depicting violence, street fight and rather glorifying 2/4 http://www.judis.nic.in WP.No.31465 of 2019 violence and as a consequence, young minds are getting polluted and corrupted. The petitioner / party-in-person has invited the attention of this Court to an advertisement appeared in a Tamil Daily pertains to Tamil film ''Bigil'' as well as would submit that as per the said poster, the hero of the film was armed with a big knife and having come across the said news item, he has also sent a notice to the respondents pointing out among other things that the film actor should have social responsibility and on account of glorification of the violence in films, the fans of the particular actors also got intimidated and in real life something is happening which would harm the human life also and therefore, also suggested to put a disclaimer stated that knifes, sickles are made in paper board only and colour water is being used as blood signs and the petitioner is constrained to approach this Court on account of no response from the concerned respondents.
2. Heard the submission of the petitioner/party-in-person who also claims to be a practicing Advocate. A perusal of the affidavit filed in support of this Writ Petition would disclose that the petitioner, who claims to be a Lawyer, have not done his home work relating to the relevant 3/4 http://www.judis.nic.in WP.No.31465 of 2019 statutory provisions in 2010 (3) SCC 402 [State Of Uttaranchal vs Balwant Singh Chaufal & Ors], wherein the Honble Supreme Court of India has dealt with the Public Interest Litigation filed by a Lawyer and it was observed that the petitioner, being a local practicing lawyer, ought to have bestowed some care before filing writ petition in public interest under Article 226 of the Constitution. As rightly pointed out, unfortunately the petitioner has failed to look into the relevant statutory provisions before filing this Writ Petition.
3. The Cinematograph Act, 1952, Central Act 37 of 1952 was legislated to make provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematograph. The scheme of the said Act was considered by a Division Bench of this Court in the judgment reported in 2015 Writ Law Reporter 719 (Bharathi Kannamma vs. Government of India and Ors.) "6. We may refer to the scheme of the said Act more specifically Part-II which deals with Certification of Films for Public Exhibition. Under Section 3, a Board of Film 4/4 http://www.judis.nic.in WP.No.31465 of 2019 Certification is constituted which shall consist of Chairman and not less than twelve and not more than twenty-five other members appointed by the Central Government. Any film for exhibition requires an application to be made to the Board under Section 4 of the said Act. The advisory panel for enabling the Board to efficiently discharge its functions is constituted under Section 5 with regional centres. The different kinds of certificates are granted under Section 5(A) and Section 5(B) prescribes principles for guidance in certifying films. Any person applying for certificate in respect of film who is aggrieved by any order of the Board can prefer an appeal by Section 5(C) of that Act before an appellate Tribunal which is constituted under Section 5(D) of the Act."
4. The Government in exercise of it's power under Section Section 5B(2) of the Cinematograph Act and in supersession of the notification of the Government of India in the Ministry of Information and Broadcasting No.O 9 (E) dated 07.01.1978 had framed guidelines and it is relevant to extract the same:
1.The objectives of film certification will be ensure that -
a) the medium of film remains responsible and sensitive to the values and standards of society;5/4
http://www.judis.nic.in WP.No.31465 of 2019
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.
2.In pursuance of the above objectives, the Board of Film Certification shall ensure that-
i.anti-social activities such as violence are not glorified or justified;
ii. the modus operandi of criminals, other visuals or words likely to incite the commission of any offence are not depicted; iii. Scenes -
a. showing involvement of children in violence as victims or as perpetrators or as forced witness to violence, or showing children as being subjected to any form of child abuse; b. Showing abuse or ridicule of physically and mentally handicapped persons; and c. showing cruelty to, or abuse of, animals, are not presented needlessly;
(iv)pointless or avoidable scenes of violence, cruelty and horror, scenes of violence primarily intended to provide entertainment 6/4 http://www.judis.nic.in WP.No.31465 of 2019 and such scenes as may have the effect of desensitising or dehumanising people are not shown;
(v)scenes which have the effect of justifying or glorifying drinking are not shown;
(vi)Scenes tending to encourage, justify or glamorise drug addiction are not shown;
(via) Scenes tending to encourage, justify or glamorise consumption of tobacco or smoking are not shown;
(vii)human sensibilities are not offended by vulgarity, obscenity or depravity;
(viii)such dual meaning words as obviously cater to baser instincts are not allowed;
(ix)scenes degrading or denigrating women in any manner are not presented;
(x)scenes involving sexual violence against women like attempt to rape, rape or any form of molestation, or scenes of similar nature are avoided, and if any such incident is germane to the theme, they shall be reduced to the minimum and no details are shown;
(xi)scenes showing sexual perversions shall be avoided and if such matters are germane to the theme, they shall be reduced to the minimum and no details are shown;
(xii)visuals or words contemptuous of racial, religious or other groups are not presented;
7/4http://www.judis.nic.in WP.No.31465 of 2019
(xiii)visuals or words which promote communal, obscurantism, anti-scientific and anti-national attitudes are not presented;
(xiv)friendly relations with foreign States are not strained; (xvii)public order is not endangered;
(xviii)visuals or words involving defamation of an individual or a body of individuals, or contempt of court are not presented; EXPLANATION : Scenes that tend to create scorn, disgrace or disregard of rules or undermine the dignity of court will come under the term “contempt of Court” and
(xiv)National symbols and emblems are not shown except in accordance with the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).
3.The Board of Film Certification shall also ensure that the film -
(i)is judged in its entirety from the point of view of its 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.
4.Films that meet the above-mentioned criteria but are considered unsuitable for exhibition to non-adults shall be certified for exhibition to adult audience only. 5(1)While certifying films for unrestricted public exhibition, the Board shall ensure that the film is suitable for family viewing, 8/4 http://www.judis.nic.in WP.No.31465 of 2019 that is to say, the film should be such that all the members of the family including children can view it together. (2).If the Board, having regard to the nature, content and theme of the film, is of the opinion that it is necessary to caution the parents/guardian to consider as to whether any child below the age of twelve years may be allowed to see such a film, the film shall be certified for unrestricted public exhibition with an endorsement to that effect.
(3).If the Board, having regard to the nature, content and theme of the film, is of the opinion that the exhibition of the film should be restricted to members of any profession or any class of persons, the film shall be certified for public exhibition restricted to the specialised audiences to be specified by the Board in this behalf.
6.The Board shall scrutinise the titles of the films carefully and ensure that they are not provocative, vulgar, offensive or violative of any of the above-mentioned guidelines.
5. In AIR (2015) Delhi 92 (Ajay Gautam Vs. Union of India and others), a public interest litigation was filed before the Delhi High Court seeks a restraint on the exhibition of the Hindi feature film/movie titled ''HK" which had hurting the religious sentiments of all the communities and 9/4 http://www.judis.nic.in WP.No.31465 of 2019 mainly of Hindus and thereby violating the rights of Hindus guaranteed under Section 19(2) and 25 of the Constitution of India and it is relevant to extract paragraph nos.12, 13 and 19:
''12. A feature film is a work of fiction and is exhibited for commercial purposes. Most films contain a warning/disclaimer that “none of the characters therein is based on any living or dead person and the resemblance if any is unintentional”. It is not the case of the petitioners that it is not so in the subject film. Moreover, the film presents a view of our world, on certain aspects, from the eyes of an alien who is not familiar with our ways, culture and ethos and his reactions/responses thereto. The film, in its entirety, does not let its audience forget this. The film is thus clearly a work of fantasy.
13. The Constitution protects the right of the artist to portray social reality in all its forms. Some of that portrayal may take the form of questioning values and mores that are prevalent in society. The Supreme Court in S. Rangarajan supra has held that films are the legitimate and important medium for the treatment of issues of general concern and it is open to a producer to project his own message even if it is not approved of by others and that the State cannot prevent open discussion and open expression, even if hateful to its policies.10/4
http://www.judis.nic.in WP.No.31465 of 2019
19. There is another aspect. The petitioner or for that matter none else can be a captive audience to the exhibition of the film. Seeing a film is of the own volition and conscious choice of the spectator and those offended by the content or the theme of the film are free to avoid watching the film.''
6. In the decision reported in 2018 1 Scale 382 (Viacom 18 Media Private Limited and Others Vs. Union of India and others) which pertains to the Hindu Movie ''Padmavat'' wherein the State of Gujarat and Rajasthan had issued notification prohibiting the exhibitio of the said film and it was put to challenge by invoking Article 32 of the Constitution of India by filing a Writ petition. The Hon'ble Supreme Court of India while deciding the said decision had taken into consideration its earlier decision and observed as follows:
''15. For the present, we are considering the prayer for grant of interim relief i.e. whether the notifications/orders prohibiting the exhibition of the film should be stayed or not. The creative content is an insegregable aspect of Article 19(1) of the Constitution. Needless to emphasise, this right is not absolute. There can be regulatory measures. Regulatory measures are 11/4 http://www.judis.nic.in WP.No.31465 of 2019 reflectible from the language employed under Section 5-B of the Act and the Guidelines issued by the Central Government. Once the parliamentary legislation confers the responsibility and the power on a statutory Board and the Board grants certification, non-exhibition of the film by the States would be contrary to the statutory provisions and infringe the fundamental right of the petitioners. That apart, as we understand at present from para 27 of the judgment in Prakash Jha Productions [Prakash Jha Productions v. Union of India, (2011) 8 SCC 372] , it is the duty and obligation of the State to maintain law and order in the State. We may also note here with profit that the Guidelines are to be kept in mind by CBFC. For the sake of completeness, we reproduce the relevant part of the Guidelines:
“2. In pursuance of the above objectives, the Central Board of Film Certification shall ensure that—....
(viii) human sensibilities are not offended by vulgarity, obscenity or depravity;
...
(ix) scenes degrading or denigrating women in any manner are not presented;
***
(xii) visuals or words contemptuous of racial, religious or other groups are not presented;12/4
http://www.judis.nic.in WP.No.31465 of 2019
(xiii) visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitude are not presented;
*** (xvii) public order is not endangered;” It has to be borne in mind, expression of an idea by any one through the medium of cinema which is a public medium has its own status under the Constitution and the Statute. There is a Censor Board under the Act which allows grant of certificate for screening of the movies. As we scan the language of the Act and the guidelines framed thereunder it prohibits use and presentation of visuals or words contemptuous of racial, religious or other groups. Be that as ti may. As advised at present once the Certificate has been issued, there is prima facie a presumption that the concerned authority has taken into account all the guidelines including public order.''
7. The fact remains that the film namely ''Bigil'', before release, was subjected to scrutinization by the Censor Board, which is a statutory body and though fit to accord certification. The petitioner, under the garb of this Public Interest Litigation, prays for appropriate direction directing the Court to assume the role of Censor Board and in the considered opinion of this 13/4 http://www.judis.nic.in WP.No.31465 of 2019 Court, the same is impermissible. The High Court, on it's decision reported in AIR 2015 page 92 (DB) (cited above) also observed in paragraph no.19 that Seeing a film is of the own volition and conscious choice of the spectator and those offended by the content or the theme of the film are free to avoid watching the film.''
8. The Hon'ble Supreme Court of India, in the above cited decision reported in 2018 1 scale 382 (cited above), also observed in paragraph no.15 that the creative content is an insegregable aspect of Article 19(1) of the Constitution. Needless to emphasise, this right is not absolute. There can be regulatory measures. Regulatory measures are reflectible from the language employed under Section 5B of the Act and the guidelines issued by the Central Government and further observed that once the parliamnetary legislation confers the responsibility and the power on a statutory Board and the Board grants certification, non exhibition of the film by the States would be contrary to the statutory provisions and infinge the fundamental right of the petitioner. The petitioner in real and technical sense wants this Court to assume the role of the Censor Board for editing / cutting the scenes which 14/4 http://www.judis.nic.in WP.No.31465 of 2019 according to the petitioner depict and encourage violence and in the considered opinion of this Court, in exercise of it's jurisdiction under Article 226 of the Constitution of India, it cannot do so.
9. In the considered opinion of this Court, the writ petition deserves dismissal and accordingly it is dismissed. No costs.
[M.S.N.,J] [N.S.S., J]
08.11.2019
Index :Yes/ No
Internet :Yes /No
sk
To
1.Tamil Nadu Film Directors Association
No.168, Anthony Salai,
Devi Karamari Amman Nagar,
Valasaravakkam,
Chennai 600 087.
2.Tamil Nadu Films Division,
Taramani, Chennai 600 113.
3.Director of Information and
Public Relations, Ex- Officio Deputy
Secretary to Government, Secretariart, Fort St.George, Chennai 600 009.
15/4http://www.judis.nic.in WP.No.31465 of 2019 M.SATHYANARAYANAN.,J, and N.SESHASAYEE.,J, sk
4.The Commissioner of Police Vepery Chennai 600 007.
WP.No.31465 of 201908.11.2019 16/4 http://www.judis.nic.in