Bombay High Court
Ramanlal Lalbhai Desai vs Central Board Of Film Certification, ... on 20 January, 1988
Equivalent citations: AIR1988BOM278, 1988(3)BOMCR438, AIR 1988 BOMBAY 278
ORDER
1. This petition under Article 226 of the Constitution is to impugn a decision of respondent No. 1 hereinafter also referred to as the "Board" -- refusing a certificate for exhibiting the feature film titled "Bed-room Story" produced by the petitioner.
2. Petitioner is the producer of the feature film titled "Bed-room Story" which is in the Hindi language. It is in colour and 35 mm. guage. Petitioner after completing the production of the film applied to the Board for a certificate to exhibit the product. The Board declined to issue the certificate and that decision was upheld by the Film Certificate Appellate Tribunal hereinafter referred to as the "Tribunal" under its verdict delivered on 23rd May, 1986.
3. The "Bed-room Story" revolves around four characters viz. (1) the hero of the film Ravi, who is a professional Photographer with an artistic bent of mind, (2) the heroine of the film Roma, who is a model by profession, (3) Prince Ajitsingh the villain of the film, who is a sex pervert and a sadist and (4) Ajitsingh's mother, the Rajmata. The film begins with Ajitsingh's return from the West after having taken further education there. The mansion of the family has a bedroom which is decorated with pictures of landscapes. The debauch Ajitsingh is not satisfied with this decoration and wants his bedroom to be covered with pin-up females in provocative poses. A direction is given to hire a photographer to take pictures of the required kind. Ravi is engaged and in the course of the search, he comes across Roma who has the necessary qualifications. She is filmed in different poses and in the course of contact with Ravi, the two fall in love with each other. The pictures taken by Ravi are seen by Ajitsingh and he becomes infatuated with Roma. Advances made by him to the girl are spurned by the latter. Knowing that Roma is not going to succumb to him by open and peaceful means, Ajitsingh conceives of a design to lure Roma and rapeher. Inviting Ravi and Roma to stage their betrothal in his place, he leads Roma into a secluded corner of the mansion and is on the verge of raping her, when steps into the place, the Rajmata, The Rajmata is anything but tolerant of her son's lecherous ways. She kills the evil son with a gun and thereafter takes upon herself the obligation to make amends to Ravi and Roma. The two of them get married, but find themselves haunted by the ghost of Ajitsingh. The ghost keeps visiting the couple, and, in particular Roma, at odd times. This has the effect of delaying the consummation of the marriage. The couple tries to find ways to rid themselves of the ghost. They are compelled to take recourse to people steeped in religion and piety. A fakir actually traps the evil spirit into a receptacle, which unfortunately cracks. The escaped evil spirit is eventually destroyed by some bhasma provided by Sati Ma. Thus the couple are enabled to resume a normal married and happy life.
4. The Board declined to issue a certificate, which is a condition precedent for the eligibility of the film to be exhibited at places of entertainment under the Cinematograph Act, 1952 -- hereinafter referred to as the "Act". Petitioner thereafter submitted a revised version of the feature film, which was also refused a certificate by the Board. Their reason (see petition page 32) for so doing were :-
"The theme and treatment of the film are based on sex and superstition. It is an unpalatable mixture of reality and fanstasy. Women are treated as sex objects in the film. The emphasis seems to be on exploitation of female anatomy in different postures and their harassment and humiliation. The film's object plainly seems to be titilation and promotion of beliefs in wild and socially undesirable superstitions. The film is not responsible and sensitive to the values and standards of the present day society. Besides hurting the human sensibilities by vulgarity, obscenity and depravity, the film also depicts women in undignified manner by showing them as sex objects. Judging in its entirety from the point of view of its overall impact, the film is not suitable for public exhibition. Hence the Board decided to refuse a certificate to the film under guidelines l(a), 2(iv), 2(iv-a) and 3(i) issued by the Central Government under. Section 5B(2) of the Cinematograph Act, 1952."
Aggrieved, the petitioner went in appeal to the Tribunal which consisted of a Chairman -- retired Chief Justice Vyas Dev Misra and two Members Mr. N. J. Kamath and Mrs. Manmohini Sahgal. According to the Tribunal guidelines specified in paras l(a), 1(c), 2(iv), 2(iv-a) and 3(1) framed by the Central Government under Section 5B(2) of the Act were violated by the film. The reasoning can ban be best brought out by quoting excerpts from the judgment of the Tribunal and it runs thus:--
"There is unduly long exposure of female body (Roma) outside a swimming lank, inside a bathroom in a bath-tub, in three prolonged rape and attempted rape sequences in the film as well as a number of intimate scenes where the hero and the heroine are shown making passionate love in the bedroom when the dissatisfied spirit of the dead villain tortures them...... From beginning to end, a edroom is shown again and again with titilating scenes catering to the lascivious taste of the prurient. There are also scenes in the film showing the evil spirit sending thunderbolts and attacking the young couple, making objects fly-off, closed doors opening, chairs and stones being hurled on the hero, the mountains moving etc. In one scene the heroine is being molested by the evil spirit which is invisible. So far, we have been seeing films where a woman is raped by a human being. In this film, we see a woman being sexually assaulted by an invisible spirit when she is taking a bath in a tub..... Therefore, it is argued that the basic theme of the film of dissatisfied soul, evil spirits, the irrational and the supernatural behaviour etc. should not be a ground for rejecting this film especially when there is no specific guilde line prohibiting it... But we must broadly express ourselves. While doing so we are neither laying down nor attempting to lay down any guideline. The guidelines have been laid down under the law and it is our duty to decide the cases within these parameters. There are films on fairy tales, fantasy and religious myths. Those viewing such films are conscious of the fact that these are either for entertainment only and not depicting the truth or they are mythological stories or ideas which are steeped into religion and are essential fundamental part of it..... Now a certain amount of supernatural and some superstition is usually present in the minds of most of the people. To that extent, stories based on these phenomena may not be contravening the guidelines laid down by the Central Government. Certifying a film having some elements of superstition and supernatural would not justify certifying films which have excess of these. A line is necessarily to be drawn beyond which these phenomena will contravene the guidelines. Again, no hard and fast rule can possibly be laid down and it is left to the intelligence of the members of the Board and its advisory panels and the Tribunal to decide the same keeping in view the overall impact a film is likely to have over the prevailing standards and the sensivities of the society with a view to make the society move forward and prevent it from sliding into the old backwardness..... In our opinion, the Central Government has very advisedly not laid down any specific guideline about superstition, supernatural etc. as the guidelines which now exist in fact do take into their ambit all these factors. In the present film we find that the film is primarily based on superstition, i.e. dissatisfied or evil spirits can make the objects and mountains move or can throw thunderbolts on human beings. Such spirits, if they do exist, are not known to be capable of being seen; and the question of any fakir putting them in the bottle simply does not arise. According to the present day scientific advancement in medicine, the treatment given to persons seemingly possessed of evil spirits by saints or fakirs is nothing more than the psychiatrist giving treatment to persons of unbalanced minds. Even the use of holy water and bhasma is said to be a part of the psychiatrists treatment in order to satisfy the superstitious beliefs which some persons have. In the present film, if scenes relating to superstition are taken out, the whole basis of the story is knocked off. The overall impact of the film is likely to be that persons will start paying serious attention to unreasonable beliefs. The falling of objects or sudden opening of windows and doors etc. which may be due to gust of winds and tremers may be wrongly attributed to such fantastic ideas of evil spirits. We have therefore no hesitation in upholding the decision of the Board on this aspect also. We have given our anxious thought to the possibility of the film being cured of its vices by deleting some scenes, but we came to the conclusion that no amount of cuts would salvage the film."
It is now necessary to detail the guidelines allegedly contravened by the film. These are : --
"l(a) The medium of film remains responsible and sensitive to the values and standards of society.
l(c) Censorship is responsive to social change.
2(iv) Human sensibilities are not offended by vulgarity, obscenity and depravity.
2(iv-a) Visuals or words depicting women in ignoble servility to man or glorifying such servility as a praiseworthy quality in women are not presented.
3(i) The Board of Film Certification shall also ensure that the film is judged in us entirety from the point of view of its overall impact."
5. Petitioner contends that the film should have been granted a certificate for enabling him to exploit the same for public exhibition. The Regional Officer of the Board has tendered an affidavit to support the refusal to give a certificate. The refusal has to be scrutinised in the light of the reasons given by the Board as also the Tribunal. Guidelines have been issued by the Central Government under Sub-section (2) of the Section 5B of the Act. The preface to the guidelines lays down that in sanctioning films for public exhibition, the Board shall be guided by the principles enumerated. Part 1 lays down the objectives of the film certification. The Board is enjoined to ensure that the three objectives are adhered to. If anything, the objectives are to remind the Board of the need to be liberal in the matter of film certification. This is made clear by guideline 1 (b) which lays down that there should not be undue curbs an artistic expression and creative freedom. Clause (a) and (c) are general in expression, but cannot be read as prescribing any unthought of restriction upon film certification. Clause 2 is an enumeration in particulars of what the Board has to ensure. Clause (iv) decries of fending human sensibilities by scenes of vulgarity, obscenity and depravity. Clause (iv-a) ordains prevention of scenes depicting women in ignoble servility to men or glorifying such servility as a praiseworthy quality in women. Clause 3(1) speaks the obvious, when it says that the Board should judge a film in its entirety from the point of view of its overall impact and not pay excessive attention to isolated scenes. That obscenity is not within constitutionally protected expression, goes without saying. Article 19(1)(a) of the Constitution confers on citizens the right to freedom of speech and expression. The Constitution though recognising the right of the citizens to freedom of speech and expression, makes it clear in Sub-clause (2) that this right would not affect the operation of any 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 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. These very words have been reproduced in Sub-section (1) of Section 5B of the Act. This Sub-section prohibits the certification of a film for public exhibition which falls within the mischief of Sub-clause (2) of Article 19. A film is an expression, and, any expression which goes contrary to decency or morality would not be protected. At the same time, concepts of 'morality' and 'decency' have to be understood in the proper sense. The 'morality' and 'decency' contemplated by Article 19(2) is the morality and decency acceptable to the community at large. Obscenity or alleged obscenity has been the subject of several decisions, the most celebrated of them being Samuel Roth v. United States of America, reported in (1957) 354 US 476. Certain expositions from that decision will be of assistance in deciding the question before me. It was made clear in Roth that sex and obscenity were not synonymous, Obscene material is material which deals with sex in a manner appealing to prurient interest. Obscenity could not be judged by the effect of isolated passages upon the most susceptible persons; but the proper test was whether an average person, applying contemporary community standards, the dominant theme of the material in question when taken as a whole felt that it appealed to prurient interest. Material which had a substantial tendency to corrupt by arousing merely lustful desires, did not have the protection of freedom of expression. It is in this background that we have to appraise the refusal to certify the film. Before I go to the merits, I may as well make it clear that parties have repeatedly requested me to view the film so as to judge the correctness or otherwise of the decision impugned in this petition. It was suggested that without viewing the film myself, it would not be possible to rule upon the observations made by the Board as also the Tribunal. I have not acceded to this request, and, for the very legitimate reason that the Tribunal has passed a valid and clear order. The story has been set out graphically in the petition itself. What reasons led to the refusal to certify are set out with clarity in the order of the Tribunal. In the fate of this unambiguous material at my disposal, it would be a waste of time -- Not to speak of the expense -- to view the film. A word about the story. That the film could have been titled, goes without saying. But titles are a matter for the producers to choose. The words "Bed-room Story" by themselves are not vulgar or obscene in the sense understood by the guidelines as also Sub-section (1) of Section 5-B of the Act. The story is the usual inanity to be found in the majority of films produced by Indian producers for the duping of the majority which makes up an audience. It is a tale of fantasy in every sense of the word. Firstly, the characters depicted in it are either over-virtuous or excessively vicious. Next, is the recourse had to sound and sonic effects to convey various overtones of the film. If was argued that the film is replete with sex. I shall take it that Para 12 of the Tribunal's judgment rightly depicts portions of the film when it says that there is an unduly long exposure of Roma's body outside a swimming tank, inside a bathroom in a bath-tub, in three prolonged rape and attempted rape sequences and "also a number of intimate scenes where the hero and heroine are shown making passionate love in the bedroom when they are troubled by the dissatisfied spirit of the dead villain Now, unnecessary exposure of the female anotomy is not in any way really connected with the film or story. To that extent the scenes showing long exposure of Roma's body whether in isolation or with the dissatisfied soul and/or Ravi, will have to be deleted. There is then reference to the bedroom decorations with titillating scenes catering to the lascivious taste of the prurient. If these be mere pictures and sculptures which are not otherwise banned, I do not see how the display of the same in the bedroom can make this film obscene. The Tribunal refers to the unusual spectacle of Roma being sexually assaulted by an invisible spirit while bathing in a tub. I assume that what is depicted is bodily movements suggesting the girl being touched at various erotic points of her body. This would be an open display of obscenity without any redeeming feature. Unless obscenity has some redeeming social value, it cannot be permitted. The movements of Roma while bathing in a tub to the extent it has a display of sheer eroticism violate the prohibition contained in guideline 2(iv) which forbid scenes of vulgarity, obscenity and depravity offending human sensibilities. The Tribunal has referred to guideline 2(iv-a). This clause deals with visuals or words depicting women in ignoble servility to men or glorifying such servility as a praiseworthy quality in women. I have not been able to understand where any such scene occurs in this film. If anything, Roma is shown as a spirited woman who refuses to be lured by the villain Ajitsingh. Neither can his ghost overpower her for she is shown as resisting the said ghost. Ajitsingh's mother, far from pandering to his weaknesses, is so virtuous that she takes out a gun and shoots him when he is trying to violate the chastity of a virtuous but humble model. It does not appear that there are any dialogues in the film propagating servility on the part of women hood of the male species. If anything, in the film can be seen as an encouragement to the docile amongst women to resist wicked men and persist in so doing though the evildoer, be their own kith and kin. To the extent the Board and the Tribunal rely upon guideline 2(iv-a), they display a non-application of mind.
6. The compelling reason -- at least so far as the Tribunal is concerned -- for non-certification of the film is that the film was primarily based on superstition. An attempt has been made to show that the guidelines ban superstition. I have not been able to understand this. Clause 1 of the guidelines speaks of the objectives which film certification have to ensure. In other words, those vested with the power of censoring films have to see that the objectives enumerated in Clause 1 are attained. As said earlier far from reading in these objectives a curb, the language is consistent with a direction to the Board to be liberal in their outlook. They are exhorted to be free from the influence of prudishness. They are to view the film as a medium to depict changing social values. There is nothing in the film which can be said to constitute propagation of retrogade social themes or values. Servility in women is not canvassed. As said earlier, resistance to vicious men, even though rich and powerful is the virtue incarnated in Roma. The film does not propagate the cult of the gun by showing the Rajmata killing her son. The son is killed so as to prevent him from committing a rape. I was taken through Part IV-A of the Constitution which prescribes Fundamental Duties. Now these fundamental duties in the abstract are not enforceable in law. Their inclusion in the basic document is to remind us the citizens, that apart from the fundamental freedoms we enjoy, there are certain obligations which are expected to be fulfilled by us. Part IV-A does not prescribe a duty enjoining the State to bear them in mind so as to compel citizens to perform the said duties. This is in marked contrast to Article 37 which finds a place in Part IV dealing with Directive Principles of State Policy. Article 37 though making it clear that provisions contained in that Part shall not be enforceable by any Court, lays it down that the principles therein laid down are nevertheless fundamental in the governance of the country, and therefore, it is the duty of the State to apply these principles in making laws. Of course, Part IV-A is not a mere decoration. But that does not mean that anything in them is to be so read as to compel citizens to perform the said duties. Guidelines l(a), l(c) and 3(1) are much too general in texture. The difficulty arises when an attempt is made to apply them to the censoring of any film. According to the Tribunal, there are permissible and impermissible superstitions. The permissible superstitions flow from accepted religions or folklore. This is a distinction which cannot be justified by the Act or by the guidelines. The guidelines nowhere say that the Board should so perform their task as to inculcate a spirit of rationalism amongst the film-viewers. With all respect to the Members of the Tribunal and specially to its Chairman, I have not been able to find anything in the Act or the guidelines to justify the distinction carved out in the arena of superstitions. According to the Tribunal's judgment, films based on fantasy and religious myths can pass muster. The reason given is that the viewers are said to be conscious of the fact that the films are for mere entertainment and not depicting the truth. This does not take into consideration viewers of different ages and degrees of intelligence. The child and the gullible require sometime to grasp the fictional nature of a film based upon folklore "or mythology. Once superstition itself is permitted, and this because of its supposedly being within the permissible ambit, it will become a difficult question to decide where the boundary is crossed. Counsel for the respondents says that the depiction of evil spirits being in a position to trouble the hero-heroine couple and the great place given to the supernatural elements in the film is a glorification of superstition. It goes against guideline l(a) which requires that the medium of film remains responsible and sensitive to the values and standards of society. If all depiction of the supernatural were td be eliminated, hardly any mythological or religious film would survive the censor's scissor. Great effort has been made to link up the driving out of the evil spirit with the help of a Satimaa, as if the film were advocating the practice of Sati. That is not the case, for according to the story, the Satimaa figured is either a deity or a sage approached by the troubled couple after the evil spirit breaks the confines of the mantra given by the fakir. That Satis are glorified is one thing and quite different a thing is it to say that wives should immolate themselves on the funeral pyre of their husbands. To sum up, the entire discussion in relation to the refusal to give a certificate for public exhibition because of its being based on and depicting superstitious practices, cannot be sustained. It is in violation of the guidelines as also Sub-section (1) of Section 5-B of the Act. To the extent the refusal to give a certificate of public exhibition be based on this ground, the refusal is liable to be quashed.
7. To recapitulate, the refusal of the Board and justified by the Tribunal to certify the film for public exhibition, on the ground of Us being based on superstition and depicting superstitious practices, is contrary to the statute inclusive of the guidelines. In so far as the certification is declined on the ground of unduly long exposure of the female body outside a swimming tank, inside a bathroom in a bath-tub, three prolonged rape and attempted rape sequences and the passionate love scenes between Roma and Ravi are concerned, the refusal is upheld. Also upheld is the refusal in so far as it depicts erotic movements of Roma's body while being sexually assaulted by an invisible spirit. These scenes will be deleted or suitably altered and the film will be represented for certification to the Board. The Board shall rule upon the request within four weeks of the presentation of the altered film. Rule in the above terms is made absolute, with parties being left to bear their own costs.