Madras High Court
Rep. By Its Secretary vs The Government Of India on 17 April, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.04.2012 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.7224 of 2012 & M.P.Nos.1 & 2 of 2012 M/s.Hindu Dharma Sakthi (Registered Society, Reg.No.196/2010) Rep. by its Secretary, N.Devasenathypathy S/o.S.V.Natrajan, Age 43 years, 2/127, 6th Main Road, Shanmuga Nagar, Manniwalkam, Thambram, Chennai-600 048. ... Petitioner. - vs - 1. The Government of India, Ministry of Information & Broadcasting New Delhi 2. Central Board of Film Certification, Shastri Bhavan, Nungambakkam, Chennai-600 034. 3. Secretary to Government, Home Department, Fort St.George, Chennai-600 009. 4. Commissioner of Police, Greater Chennai, Egmore, Chennai-600 008. 5. Mr.Udayanithi Stalin 6. Mr.M.Rajesh 7. Tamil Film Producers Council, No.606, Anna Salai Thousand Lights, Chennai-600 006. ... Respondents. Prayer: Writ petition is filed under Article 226 of Constitution of India for issuance of a Writ in the nature of Mandamus, directing the first and second respondents herein not to certify any feature film for public exhibition, which has scenes depicting Hindu Religious Sanyasis, Spiritual Gurus or leaders in a bad taste or defaming, insulting or abusing them or making / creating them as an object of mockery / comedy and consequently direct the fifth and sixth respondents herein to remove the scenes involving Comedy Artist Saminathan wearing saffron dress and appearing in the name of 'Ulunthurpettai Ulangananda' and hurting the Hindu Religious sentiments in the Tamil feature film "OK OK Oru Kal Oru Kannadi" permanently. For Petitioner : Mr.G.Rajagopalan, S.C., For M/s.G.Bala & Daisy For R3 & R4 : Mr.V.Jaya Prakash Narayanan, Addl. Govt. Pleader For R1 & R2 : Mr.G.Ravikumar For R5 & R6 : Mr.R.Raman Laal For R7 : No Representation ***** O R D E R
M/s.Hindu Dharma Sakthi, a registered society, has filed this writ petition for issuance of a writ in the nature of Mandamus, for directing the first and second respondents herein not to certify the feature films for public exhibition, which have the scenes depicting Hindu Religious Sanyasis, Spiritual Gurus or leaders in a bad taste or defaming, insulting or abusing them or making / creating them as an object of mockery / comedy and consequently direct the fifth and sixth respondents herein to remove the scenes involving Comedy Artist Saminathan wearing saffron dress and appearing in the name of 'Ulunthurpettai Ulangananda' and hurting the Hindu Religious sentiments in the Tamil feature film "OK OK Oru Kal Oru Kannadi".
2. The petitioner Society has been formed with an object of promoting the Hindu Vedic traditions, meditation and yoga in the general public and to protect Hindu Dharma, values, customs, sanctity and culture.
3. It is submitted that the Tamil Feature film "OK OK Oru Kal Oru Kannadi" produced by the fifth respondent and directed by sixth respondent herein has several scenes hurting the religious sentiments of Hindus. The trailers of the film, which is being aired in the television channels and uploaded in various websites, is shown to be having contents, which have been mentioned in Tamil.
4. The writ petition, as framed therefore, is in violation of Article 348 of the Constitution of India, which reads as under:
"348. Language to be used in the Supreme Court and in the High Courts and for Act, Bills, etc. - (1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides-
(a) all proceedings in the Supreme Court and in every High Court,
(b) the authoritative texts-
(i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,
(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and
(iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, Shall be in the English language.
(2) Notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State:
Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.
(3) Notwithstanding anything in sub-clause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article."
5. The language of the High Court, as recognized by the Constitution, is only English, therefore, writ, as framed, is prima facie not competent.
6. In the interest of justice, this Court is taking note of pleadings, which are in English.
7. It is submitted that the members of the Society were shocked while watching trailers, wherein one of the characters, dressed as a Hindu Sannyasi / Guru wearging saffron dress, is shown in a very bad taste. The character played by an artist Saminathan, is depicted as a Samiyar Ulunthendarpettai Ulangananda. The character seems seems to have been created for sole purpose of making fun of the Hindu Swamys, which is unnecessary and unwarranted, specially when it has no relevance to the main theme of the movie.
8. The submission of petitioner is, that without the character called as Samy in saffron dress with ruthraksha strings, the main story will not be affected. It is alleged that fifth and sixth respondents with malafide intention and in order to hurt the Hindu religious feelings and faith of the Hindus have created the character and called him Swamy intentionally.
9. It is pleaded that Sanyasis and Sadhus are the basis of rich culture of India and Hinduism, as they were the only teachers in the society and were placed above Kings and Royals. They were the advisors to all the kings and were supported by Kings.
10. In the modern education system, Sanyasis and Sadhus are replaced by the school and college system, therefore, mockery of Sanyasis and Sadhus deserves to be denounced, as it is likely to create bad impression on the next generation.
11. It is also pleaded that, because of wrong projection of the rich heritage of India, the younger generation is moving towards westernisation, which has resulted in increase of suicides and AIDS in the country.
12. The petitioner submits that moral values should not be allowed to be sacrificed. The scenes involving the Hindu Gurus, Sadhus and Sanyasis, which conveys message of vulgarity, belittling the values, are nothing but belittling Indian culture. It does not convey any message to educate the public and create healthy entertainment.
13. It is also submission of petitioner, that the mass media is being deliberately misused by the film industry to bring down the majesty and dignity of the Hindu traditions, which has been in vogue for thousand of years. The case set up by petitioner is that since self censorship is not being followed by movie makers, it is, therefore, statutory duty of the Central Board of Film Certification (CBFC) not to allow such scenes on the silver screen. The second respondent, therefore, has failed to perform his duties under the Statute.
14. The petitioner further submits that on 17.03.2012, the petitioner has submitted a representation to the Secretary to Government, Home Department, and Commissioner of Police, for taking action under Section 295A of the Indian Penal Code for hurting the religious sentiments of the Hindus. The petitioner also filed representation with the Government of India and the Central Board of Film Certification to revoke the certificate issued to the above said movie, in case the above scenes are not removed and further proceed against respondents for having committed offence under IPC. The film was stated to be released on 30.03.2012.
15. The writ petition is opposed by respondent nos. 1 & 2, wherein all the averments made in the writ petition, are denied. The maintainability of the writ is also challenged.
16. It is stand of respondent nos.1 & 2, that the film was examined by the examining committee, as per the Cinematograph Act, 1952 ( hereinafter referred to as 'the Act'), and the Rules and Guidelines, framed thereunder, and has been issued censor certificate under the category "U", i.e. Unrestricted Public Exhibition vide C.C.No.DIL/1/11/12 dated 19.03.2012 with cuts. The writ petition, thus, has been rendered infructuous.
17. It is also stand of respondent nos.1 & 2, that the writ petition is frivolous, vexatious and devoid of merits, as allegations made in the writ petition, do not disclose any public interest. It is the positive stand of the respondent nos.1 & 2, that Central Board of Film Certification watches the film in its entirety as per the Act, Rules and Guidelines of the Government of India. The alleged contentious scene in the film "Oru Kal Oru Kannadi" are in no way denigrating, abusive or defaming the Hindu Religious Sanyasis or hurting the sentiments of any particular community, as submitted by the petitioner.
18. It is stated that the writ petition has been filed with ulterior motive. The dialogue, debate, satire and constructive criticism is an integral part of Hindu religion. The positive stand of the respondent nos.1 & 2 is that the examining committee has carefully examined the film "Oru Kal Oru Kannadi" in its entirety, and thereafter issued the certificate as per the Act, Rules and Guidelines. The Board has not passed any scene, which hurts the religious sentiments of Hindus. It is not necessary for the petitioner to pass any comments on the film without seeing the entire movie, as the film is yet to be exhibited .
19. It is also the positive stand of respondent nos.1 & 2, that even while certifying the trailer, the provisions of the Act, was kept in mind. It is not correct, that the character is unconnected with the main movie. The character of the actor Santhanam in the film "Oru Kal Oru Kannadi" has been conceived and crafted in the film for public exhibition without hurting any public sentiments.
20. That the CBFC has certified the film as per the Act, Rules and Guidelines, issued thereunder. The submission is that the particular scene from the film or any work of art, cannot be judged in isolated manner, with preconceived notion. The alleged objectionable scenes are enacted with respect to a situation, which arose in the film, and if seen in context, which these are shown, these do not hurt sentiments of any religion much less Hindu religion.
21. That CBFC has not received any representation from the petitioner to revoke certificate. The film has been certified by taking into consideration the guidelines under Section 5B of the Act. The CBFC is not competent to issue instructions, as to how a film is to be made. The creator of film has every right to portray the ill-effects towards the society by the pseudo personalities. The stand is also that many films, like "Hare Rama Hare krishna", "Satyam Sivam Sundaram", and "Kazhugu", have elaborately shown people with saffron dresses.
22. The maintainability of writ is challenged on the ground, that Section 7F of the Act bars any suit or other legal proceedings against the Central Government, Tribunal, Board, Advisory Panal or any Officer or members of the Central Government, in respect of anything, done in good faith under the Act. The stand is that respondent no.2 has exercised its statutory jurisdiction, which does not call for any interference by this Court.
23. The writ is opposed by respondent nos.5 & 6, by raising preliminary objection, that the writ petition has been rendered infructuous, in view of film certification by the Film Censor Board under Section 5A of the Act on 19.03.2012, even prior to filing of the writ petition.
24. The stand of respondent nos.5 & 6 is that the affidavit filed in support of the writ, does not disclose how the religious sentiments are hurt and furthermore, the writ petition is filed on the apprehension without knowing the real context, in which the scene complained off, arises in the story line of the film.
25. It is also stated that the petitioner is guilty of suppression of material facts in not disclosing that the film has already been certified under 'U' certificate. The other allegations in the writ petition are denied. It is specifically denied that the scenes in the film hurt the religious sentiments of Hindus. The stand is that the film or trailer does not criticize or hurt the sentiment of any particular religion or Sadhus / swamys as a class.
26. The stand of respondent nos.5 & 6 is that the writ petition is not bonafide, as 5th respondent is the son of the Treasurer of the DMK party and was also the former Deputy Chief Minister. The allegations, that the objectionable character is created for the sole purpose of making fun of Hindu Swamys, is denied.
27. The stand taken is that the object is the scene is to protect the general public by warning the public from falling prey to persons, who pretend to be great and religious. The idea is taken from an incident, involving certain persons. The film is claimed to be an work of art and the respondents have used the technique for fair criticism of a current happening, which is portrayed in a comical way, which does not hurt any religious sentiments of any class or religion. The character is said to be essential to the story and forms part and parcel of story line, which cannot be segregated.
28. The film was cleared on 19.03.2012 before filing of writ petition. That the writ petition is not a Public Interest Litigation, therefore, is not maintainable at all, as the petitioner has failed to give name of the members of the Society. The allegations made in the writ petition are claimed to be defamatory. The film as well as trailer stands approved by the Film Censor Board, therefore, protection is claimed under Section 19(1)(g) of the Constitution of India.
29. The allegations in writ are denied being general in nature, and not connected with the movie. The allegations are also said to have no direct nexus with the film. The respondent nos.5 & 6 also submit that they are entitled to freedom of expression under the Constitution.
30. It is denied that any act of the respondents attracts the provisions of Section 295A IPC.
31. In sum and substance, besides complete denial of allegations, the stand of the respondent nos. 5 & 6 is, that the petitioner wants to blackmail and threaten respondents on the allegations of police complaint. The writ is said to be motivated, to cause financial loss, as it has been filed after its release. It has been also submitted that the movie does not hurt the sentiments of Hindus.
32. Learned Senior Counsel appearing on behalf of petitioner vehemently contended that the trailer of the film, as projected, shows Swamy wearing saffron dress a bad look, which hurts the religious feelings of Hindus, therefore, was not open to respondent no.1 to grant certification for the exhibition to the film.
33. Learned Senior Counsel also contended that under Section 5A of the Act, it is the statutory duty of the Board to examine the film subjectively and thereafter grant certification for its exhibition, but the respondents have failed to perform their statutory duty honestly and bonafidely.
34. Section 5A of the Act reads as under:
"5A. Certification of films (1) If, after examining a film or having it examined in the prescribed manner, the Board considers that-
(a) the film is suitable for unrestricted public exhibition, or as the case may be, for unrestricted public exhibition with an endorsement of the nature mentioned in the proviso to clause (i) of sub-section (1) of section 4, it shall grant to the person applying for a certificate in respect of the film a "U" certificate or, as the case may be, a "UA" certificate; or
(b) the film is not suitable for unrestricted public exhibition but is suitable for public exhibition restricted to adults or, as the case may be, is suitable for public exhibition restricted to members of any profession or any class of persons, it shall grant to the person applying for a certificate in respect of the film an "A" certificate or as the case may be a "S" certificate; and cause the film to be so marked in the prescribed manner;
Provided that the applicant for the certificate, any distributor or exhibitor or any other person to whom the rights in the film have passed shall not be liable for punishment under any law relating to obscenity in respect of any matter contained in the film for which certificate has been granted under clause (a) or clause (b).
(2) A certificate granted or an order refusing to grant a certificate in respect of any film shall be published in the Gazette of India.
(3) Subject to the other provisions contained in this Act, a certificate granted by the Board under this section shall be valid throughout India for a period of ten years."
35. The contention of learned Senior Counsel was that reading of Section 5A r/w 5B puts statutory restriction on the Board not to grant certification, when it is not disputed that the Swamys and Sadhus have high respect in the Hindu society. The respondents, thus, deserve to be prohibited from issuing certification.
36. The contention of learned Senior Counsel, on the face of it is, misconceived. Section 5B of the Act stipulates that the certification cannot be granted, if 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. The petitioner in the affidavit has not alleged any such allegations. The allegations of religious sentiments, being hurt, are also vague and not specific. The writ petition has been filed by the Society, registered under the Societies Registration Act, and not individuals, giving details as to how and in what respect their religious feelings were hurt. The vague allegations cannot be a ground to restrain an authority to perform its statutory functions.
37. In case any offence under Section 295A of IPC is committed, by hurting sentiments of any religious bodies, the remedy with the person aggrieved is to invoke criminal jurisdiction, by making out a fool proof case and showing motive.
38. It was contended by learned Senior Counsel for the petitioner that scenes in the film violated the rights conferred under Article 25 of the Constitution of India, as all persons are equally entitled to freedom of conscience, free profession, practice and propagation of any religion.
39. It is not understood how a comic consequence in the film interferes with the freedom of conscience, free profession, practice and propagation of religion to attract Article 25 of the Constitution of India.
40. This Court, in Sony Pictures Releasing of India Ltd., vs. The State of Tamil Nadu, 2006 (4) CTC 193, has been pleased to lay down as under:
"48. As regards the harmonious interpretation of Articles 25 and 19, it is clear from a reading of these provisions that the rights under Article 25 are subject to the other provisions of Part III, which means they are subject to Article 19(1). And it is not clear how the exhibition of the film will interfere with anyone's freedom of conscience or the right to profess, practise and propagate a particular religion. In Ramji Lal Modi's case (supra), it was contended before the Supreme Court that a law interfering with the freedom of speech and expression and imposing a punishment for its breach, the attack being to Section 295 A of the Indian Penal Code, is ultravires since it interferes with the Article 19(1)(a) of the Consitution. The Supreme Court held that it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interest of public order. The Supreme Court held that having regard to the ingredients of the offence created by the impugned section, there cannot, in our opinion, be any possibility of this law being applied for purposes not sanctioned by the Constitution. We do not see how this will hold in sustaining the impugned order". The test is whether the space occupied by the 'speech' or 'expression' is that of individual freedom or one of criminal behaviour. The Supreme Court said that when it is a criminal act, the rights' boundaries are crossed, and the safeguard of Article 1 9(1) is not there. But in this case, the petitioners' right to protection is there, as is clear from the response of the Catholic Bishops' Conference of India and the Certificate granted for exhibition of the film. The suspension of exhibition of the film is an assertion of Power exercised by self-appointed arbiters of what can be exhibited and what cannot be exhibited, who may be Officers of the State or members of the public representing a particular group. The Censor Board which granted the certificate was well aware of the restriction subject to which a certificate under Section 5 is granted and yet, granted the certificate and therefore, we must reject the submission that by protecting the freedom of expression of the writ petitioners', the right under Article 25 is violated."
This contention of the learned Senior Counsel for the petitioner deserves to be rejected.
41. The Hon'ble Supreme Court in Prakash Jha Productions and another vs. Union of India and others, (2011) 8 SCC 372, has been pleased to lay down as under:
"26. In the present case, the Examining Committee of the Board had seen the film along with the experts and only after all the members of the Committee as also the two experts gave positive views on the screening of the film, thereafter only the certificate was granted. Therefore, since the expert body has already found that the aforesaid film could be screened all over the country, we find the opinion of the High Level committee for deletion of some of the scenes/words from the film amounted to exercising power of pre- censorship, which power is not available either to any high-level expert committee of the State or to the State Government. It appears that the State Government through the High Level Committee sought to sit over and override the decision of the Board by proposing deletion of some portion of the film, which power is not vested at all with the State.
27. It is for the State to maintain law and order situation in the State and, therefore, the State shall maintain it effectively and potentially. Once the Board has cleared the film for public viewing, screening of the same cannot be prohibited in the manner as sought to be done by the State in the present case. As held in K.M Sankarapaa (Supra) it is the responsibility of the State Government to maintain law and order."
42. The contention of the petitioner, that order of certification has not been furnished to petitioner, also deserves to be noticed to be rejected, as the Act requires that certification is to be published in the Government Gazette, which is a notice to all, therefore, it cannot be said that the petitioner was not in know of certification by the Censor Board to the film for exhibition.
43. Learned Senior Counsel for the petitioner placed reliance on the judgment of this Court in International Sri Vaishnava Dharma Samrakshanaa Society vs. The Censor Board and others, [W.P.Nos.11983 and 12929 of 2008] decided on 29.05.2008, where while rejecting the plea of petitioner that title "Dasavatharam" affects sentiments of Hindus, observed as under:
"29. Before parting with the case, we are constrained to make the following observations:-
The movie is a powerful means of communication which attracts larger attention and mass audience. It cannot allow itself to propagate hatred among the people of all walks of life including the religion oriented people. Certain amount of restraint by them is the need of the hour. Though the producers of the films have got freedom of expression, they should see to it that such freedom does not affect the sentiments of the people of any religion of that matter. The unity of the people shall be the most paramount consideration of everybody, more particularly, the persons who produce the films. The responsibility of the producers of the films and T.V. serials is more so since as stated already it attracts larger people. We hope that the film shall not carry anything which wounds any sector of Hindus. We also hope that after seeing the film, the petitioners should feel that their apprehension is without any substance."
44. These observations cannot advance the case of petitioner, as it cannot be said to be a precedent, but only an advice. Otherwise also nothing has been shown that this advice has been violated by the respondents.
45. Learned Senior Counsel thereafter placed reliance on the judgment of the Hon'ble Supreme Court in S.Rangarajan vs. P.Jagjivan Ram and others, (1989) 2 SCC 574, wherein the Hon'ble Supreme Court was pleased to lay down, that the right of communication of ideas through any medium, newspaper, magazine or movie is subject to reasonable restrictions in the larger interests of the community and country as set out under Article 19(2). The Hon'ble Supreme Court was pleased to observe, that there should be a compromise between the interest of freedom of expression and social interests. The freedom of expressions cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. It should be inseparably locked up with the action contemplated like the equivalent of "spark in a power keg".
46. This judgment again does not help the petitioner, as the question raised is to be decided on the facts of the particular case. In this case, admittedly, the film has already been certified for universal exhibition. The petitioner, therefore, had the remedy of appeal under the Act. The writ petition, therefore, was not competent, for want of alternative remedy. Otherwise also for the reasons stated, there is no merit in this writ.
47. Learned counsel for the respondents were right in contending that the writ petition, as framed, is not competent, as the film has been certified for exhibition, by respondent no.2 with necessary cuts etc. Learned counsel for the respondents was also right in contending that there is no material showing how the sentiments of a particular community were hurt on the imaginary allegations of petitioner.
48. As already observed above, the writ petition, as framed, is also not in the Court language, as stipulated under Article 348 of the Constitution of India. Allegations are further vague and also in view of law laid down by the Hon'ble Supreme Court in Prakash Jha Productions and another vs. Union of India and others, (supra), no order as prayed for can be issued in favour of petitioner, after the film is certified for exhibition by the Censor Board.
49. Consequently, finding no merits in this writ petition, it is ordered to be dismissed.
50. No costs. Connected miscellaneous petitions are closed.
17.04.2012 Index: Yes Internet: Yes ar VINOD K. SHARMA,J.
ar To,
1. The Government of India, Ministry of Information & Broadcasting New Delhi
2. Central Board of Film Certification, Shastri Bhavan, Nungambakkam, Chennai-600 034.
3. Secretary to Government, Home Department, Fort St.George, Chennai-600 009.
4. Commissioner of Police, Greater Chennai, Egmore, Chennai-600 008.
Pre-Delivery Order in W.P.No.7224 of 2012 17.04.2012