Orissa High Court
Bibhuti Bhusan Jena vs Union Of India And Others ....... .. ... on 15 September, 2010
Equivalent citations: AIR 2011 ORISSA 31, (2010) 2 ORISSA LR 918 (2011) 111 CUT LT 169, (2011) 111 CUT LT 169
Author: V.Gopala Gowda
Bench: V.Gopala Gowda
THE HIGH COURT OF ORISSA: CUTTACK W.P.(C) No. 13623 of 2010 In the matter of an Application under Articles 226 and 227 of the Constitution of India. Bibhuti Bhusan Jena ....... .. . Petitioner. --Versus-- Union of India and others ....... .. Opp.Parties. For Peuuoner M /s. M.R.Mohanty, P.K.Roy, S.Panigrahi, B.C.Ghadai 85 B.K.Routray. For Opp. Parties 1 85 3 2 Mr. S.D.Das, Sr. Advocate (Asst. Solicitor General) For Opp. Party No.2 2 Govt. Advocate For Opp. Party No.4 : Mr. S.K.Padhi, Sr. Advocate M/s. G.N.Mishra, S.C.Saho, Md. Habibur Raheman 85 B.Priyadarshi. PRESENT: THE HON'BLE CHIEF JUSTICE MR. V.GOPALA GOWDA & V, THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY. Date of hearing: 18.08.2010 Date ofjudgment: 15. 09.2010 I.Mahanty, J.
This writ application has been filed by one Bibhuti Bhusan Jena asserting that he is a social activist engaging in the socio--economic development of the State of Orissa through social and political movements through democratic process and is the President of the Bharatiya J anata Yuva Morcha (BJYM), the youth wing of Bharatiya J anata Party.
2. In this writ application, the petitioner has sought for appropriate direction for re--examination of the movie by a high level committee and for imposition of ban on the screening and exhibition of the Oriya Movie by the title "Swayamsidhha" which was proposed to be released on 12.8.2010 on the ground that the said movie glorifies the Maoists /Naxalities' ideology and the youths of the State who are likely to be influenced by such movies and thereby attracted to the ideology of violence as spread by the Maoists/Naxalities and thereby, worsen the law and order situation in the State.
3. - Upon hearing the learned counsel for the parties, by way of an interim order dated 10.8.2010 (modified by order dated 1 1.8.2010), in View of the power conferred under Section 13 of the Cinematograph Act, 1952 (in short 'the Act, 1952'), the Commissioner of Police, Bhubaneswar--Cuttack as well as the Deputy Commissioner of Police, Cuttack were directed to witness the moviein its premier show which was scheduled to be screened on Thursday (12.8.2010) in presence of the learned counsel for the petitioner,' Sri S.K.Padhi, learned Senior Counsel appearing for the Producer of the movie (O.P. No.4), the learned Government Advocate and Mr. G.Mishra, learned Additional Standing Counsel.
Lu Further direction was issued to the Commissioner of Police, Bhubaneswar--Cuttack to submit his report in consonance with the provision of Section 5(b) of the Act, 1952 in a sealed cover on 16.8.2010 for perusal of the Court.
4. Pursuant to the aforesaid direction, a report has been submitted by the Commissioner of Police, Bhubaneswar--Cuttack in a sealed cover along with covering of its letter dated 15.8.2010. The same was opened and perused and also permitted to the petitioner's counsel to peruse the said report. and to make submissions thereto. The matter was then adjourned for two days on the request made by the learned counsel for the petitioner and was heard on 18.8.2010. Learned counsel representing the parties were heard and the petitioner filed an additional affidavit containing his further averments, the relevant paragraphs of which are quoted hereinbelow:
"That the film glorifies the Maoist ideology. The film also put several critical questions about the sanctityof the system, at large. In several occasion it has beeniuttered in the film that the prevailing system in the country has failed in all account, especially "60 years after Independence".
That in the end of the film the Maoist Commander, who is in a negative role believe in violence has addressed his troop and said that "Individual like SWAYAMSHIDDHA (name of the heroine) may come or left the organization but our ideology will remain for ever, when there will be injustice, exploitation or torture by the system, Maoism is there to react, LAL SALAM".
Unfortunately the above dialogue has picturised in such a manner, it seems to be the message of the entire film.
That the film tries to portrait the system as corrupt and every person working in the system as corrupt one. The song title "AME MATIRA
-,_ .~._,-.--.. .4 x MANISH " provoke the listener to declare war against the system.
That in the film, unnecessarily the flag, Banner, Slogan of Maoist has been extensively displayed. The Director can symbolically use above thing but he has not done so. In every Maoist affected area the common people' have a fear psychosis of the above article and through the film it appears as the flag & banners are advertised by the filmmaker.
That now--a-days youth of our country are very much fund' of cricket, film and politics and their role model are the Film Star, Cricketer and Politicians. If any weak minded youth watch this movie (which is full of violence and has declares war against the system) having dissatisfaction on the system may inspire to become a Maoist."
5. In course of argument, Sri K.P.Mishra, learned counsel appearing for the petitioner relied on the following judgments:
(i) Moorthy V. State of Tamil Nadu, AIR 1988 SC 1245
(ii) Ramesh s/o. Chotala Dalal v. Union of India and others, AIR 1988 SC 775
(iii) Amitabh Bachhan Corporation Ltd. v. Om Pal Singh Hoon, 1996 (37) DR] 352.
6. Learned counsel for the petitioner sought to highlight the fact that the film 'Swayamsidha' may attract the youth of the State and likely to be attracted the ideology of violence as spread by the Mioists/Nuxalities. Accordingly, in Paragraph--5 of the additional affidavit, it is asserted that if any weal: minded youth watch this movie (which is full of violence and has declared war against the system) having dissatisfaction on the system may be inspired to become a Maoist.
7. Sri S.K.Padhi, learned Senior Counsel appearing for the Producer (O.P. No.4) submitted that the film "Swayamshiddha" had been duly certified by the Central Board of Film Certification under Section 4 of the Cinematograph Act, 1952 and further since the film had been also issued with certificate under Section 5--A of the Act, 1952, he submitted that, the film in question has been duly examined and duly certified by the Board of Film Certification, there was no justification for entertaining the present Writ petition.
7.1. Apart from the above, he submitted that the petitioner has an alternative efficacious remedy by Way of an appeal under Section 5(C) of the Act, 1952, under which "any person", who may be aggrieved by any order of the Board either refusing to grant certificate or in the grant of certificate may, within thirty days of such certification or order, prefer an appeal to the Tribunal under the Cinematograph Act, 1952. The petitioner claiming to be a person aggrieved, not having resorted to the alternative efficacious mode of redressal of his grievance, ought not to be permitted to pursue the present writ petition.
7.2. Learned counsel further submitted that the object behind the Writ petition was purely to try and gain political mileage and the petitioner himself claims to be a political activists and the President of the BJY M, the youth Wing of Bharatiya Janata Party, therefore, such writ petition ought to be dismissed in limine.
7.3. He also places reliance on the report of the Commissioner of Police, Bhubaneswar--Cuttack pursuant to the interim directions of this Court which clearly supports the film 'Swayamshiddha' since it is noted therein that there has been no infraction of Section 5--B of the Act, 1952.
7.4. Mr. Padhi submitted that, the objections raised by the learned counsel for the petitioner in his additional affidavit are merely misinterpretation on the actual film and the message, the film has tried to portray. He asserted that the intent of the film was to bring back the persons who are attracted by the Maoists / Nuxalities' ideology into the main stream of the society. In this respect, reliance was placed by Mr. Padhi on the judgment of the Hon'ble Supreme Court in the case of State of Bihar v. Shailabala Devi Mahajan, reported in AIR 1952 SC. 329 in which Hon'ble Justice Mahajan had stated that:
"A writing had to be considered as a whole and in a fair and free and liberal spirit, not dwelling too much upon isolated passages or upon a strong word here and there, and an endeavour had to be made to gather the general effect which the whole composition would have on the mind of the public."
7.5. Hon'ble Justice Mukherjea, concurring with Hon'ble Justice Mahajan, observed that:
"The writing had to be looked at as a whole without laying stress on isolated passages or particular expressions used here and there and that the Court had to take into consideration what effect the writing was likely to produce on the minds of the readers for whom the publication was intended. Account had also to be taken of the place, circumstances and occasion of the publication, as a clear appreciation of the background in which the words were used was of very great assistance in enabling the Court to view them in_ their proper perspective. "
7.6. Relying on the aforesaid passage, Mr. Padhi, submitted that, the attempt made by the learned counsel for the petitioner to highlight isolated portions of the film and the court should take no cognizance on such assertion. The film deals with Maoism/ Naxalism which while being an extremely a complex issue has been dealt with by the Director with the intent of, trying to bring back the disillusioned persons from Maoism/Naxalisrn and attract them back into the main stream of society and to strengthen their believe in the democratic process.
8. Learned counsel also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Bobby Art International and others V. Om Pal Singh Hoon and others, (1996) 4 SCC 1. In the said judgment, the Hon'b1e Supreme Court While dealing with the film "Bandit Queen" which is the story of a village child exposed from an early age to the brutality and lust of man While she has been married off to a man old enough to be her father, she was beaten and raped and the village boys made advances against her which she repulsed but, the village panchayat found her guilty of enticement of a village boy because he belonged to a -high caste and she was directed to leave the village. She was arrested by the police and abused in the police station. Those who stood bail for her did so to satisfy their lust. She was kidnapped and raped. During an act of brutality the rapist was shot dead and she found an ally in her rescuer. With his assistance she gave beatings to her husband, violently. Her rescuer was shot dead by one whose advances she had spurned. She was gang raped by the rescuer's assailant and his accomplices and they humiliated her in the sight of the village; a hundred men standing in a circle around the village Well and Watching her being stripped naked and walked around the circle and made to draw water, but no one came to her rescue. To avenge herself upon her persecutors, she joined a dacoit's gang and killed twenty Thakurs of the village. Ultimately she surrendered and remained in jail for a number of years.
9. In the background of the aforesaid story in the film "Bandit Queen", the Hon'ble Supreme Court came to hold that, while the said film was not a pretty story, it was the serious and sad story of a village--born female child becoming a dreaded dacoit. An innocent who turns into a vicious criminal because of lust and brutality affected her psyche so. The film levels an accusing finger at members of society who had tormented the victim and driven her to become a dreaded dacoit filled with the desire to revenge. In this background, observation of the Hon'ble Supreme Court is as follows:
"the court should recognize the message of a serious film and apply this test to the individual scenes thereof: do they advance the message? If they do they should be left alone, with only the caution of an 'A' certificate. Adult Indian citizens as a whole may be relied upon to comprehend intelligently the message and react to it, not to the possible titillation of some particular scene."
10. Applying' the aforesaid principles of the present case, Mr. Padhi, learned counsel for O.P. No.4 (Producer) submitted that, the objections raised by the learned counsel for the petitioner to the specific isolated aspects of the film, ought not to be considered as objectionable since the same should be viewed in the background of the main message to the disillusioned youth who may have joined the Maoists/Naxalities, to came back into the mainstream of the society and to have faith in the democracy. It is asserted by Mr. Padhi that in the film in' the name of 'Swayamshiddha', is the name of the main female protagonist, who due to various unjustified troubles faced in her life, had joined the Maoists/Naxalities. The film is the story of how "Swayamshiddha" leaves the company of the Maoists/Naxalities and decides to return to civil society. In this background, it is asserted that the film is ineffect, a reassertion of democratic values, but in course of dealing with such a subject, necessarily, issues relating the Maoism and Naxalism and the causes of such political thought both in the economic and social context had to be addressed. Therefore, no objection whatsoever ought to be entertained by this Court on the ground of isolated disjointed examples cited by the petitioner through the additional affidavit filed in the Court.
11. In the light of the aforesaid facts/ submissions and contentions, it now becomes imperative to deal with the issues raised.
11.1. Section 5-B of the Act, 1952 states that the film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the security of the State, friendly relations with foreign States, public order, decency or morality. Under the provisions of Sub--Section (2) of Section 5--B of the Act, it is stated that 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 in sanctioning films for public exhibition.
11.2. In terms of the authority vested in the Central Government by Section 5--B of the Act, as noted hereinabove, the 10 Ministry of Information and Broadcasting No. S.O 9(E), dated the 731 January, 1978 stipulating the guidelines for certification of film for public exhibition. In the said guidelines, it is important to take note of Clause-3 which is quoted hereinbelow:
"{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 impacts; 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."
12. We had, by way of an interim order dated 10.8.2010, directed the Commissioner of Police, Bhubaneswar--Cuttack to Witness the movie on the date of its release and the report submitted by him is quoted hereunder:
"In pursuance of Order No.2 dated 10.8.10 and Order No.3 dated 11.08.10 of the Hon'ble High Court in W.P.(C) No.13623/10, the undersigned witnessed the Oriya Movie "Swayamsidhha" in its premiere show on 12.8.10 at Brindaban Talkies, Cuttack in presence of Sri A.N.Sinha, DCP/Cuttack, Sn K.P.Mishra, learned counsel for the petitioner, Sri S.K.Padhi, learned Senior Counsel for O.P. No.4, Sri R.K.Mohanty, learned Govt. Advocate and Sri Gautam Mishra, learned Addl. Standing Counsel.
The Hon'ble Court vide their order dated 10.8.10 had directed the undersigned to submit a report in a sealed cover about the Oriya Movie "Swayamsidhha", after considering the provisions of Section 5(b} of Cinematograph Act, 1952. Section 5(b) of Cinematograph Act, 1952 provides that "A film . shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign 11 States, public order, decency or morality or involves defamation or contempt of court or is likely to incite the commission of any offence".
The Hon'ble Court vide their order also referred to the powers conferred on the undersigned u/s 13 of the Cinematograph Act, 1952 which provides that public exhibition of a film can be suspended if it is likely to cause a breach of the peace.
In this connection, the undersigned most humbly submits that out of the principles enumerated in Section 5(b) and Section 13 of Cinematograph Act, 1952, determining certification and exhibition of a film, the following criteria are relevant for the purpose of considering the contents of Oriya Movie "Swayamsidhha".
Sovereignty and integrity of India Security of the State Public order and peace Decency or morality Incitement to commission of any ofience .U1.4\.C0!\3i** My opinion about the relevance of the aforesaid five criteria, as far as contents of Oriya Movie "Swayamsidhha" is concerned, are as follows:
1. The film does not depict any scene or convey any message which threatens the sovereignty and integrity of India.
2. Even though naxalism is a big internal security challenge, the film has not depicted anything which undermines the security of the State. In fact, the security forces have been shown to be launching frequent attacks and assaults on the naxalities, by using sophisticated weapons and even helicopters. l
3. The film does contain some scenes of violence which have a bearing on public order and peace.
Attack on a police station, killing of police men and 12 looting of weapons by the naxal cadre have been depicted in one scene. However, a solitary or a few scenes of attack cannot be said to have paralysed public order and peace, as equally powerful counter attacks by security forces, resulting in retreat and casualty of naxal cadre have also been depicted. The surrender of the lady naxal commander and her appeal to forsake violence, depicted at the end of the movie, convey shunning of bloodshed and triumph of love which would have a more lasting appeal on the minds of the viewers.
4. The movie does not exhibit any nudity, indecency, abuse, obscenity and immorality.
5. V As far as incitement to commission of offence is concerned, the guiding principles for determining such a criteria would inter alia include glorification or extenuation of crime, depicting the modus operandi of criminals, enlisting admiration or sympathy for criminals, undermining the sanctity of the criminal justice system etc. Even though in some scenes, the naxal commander has glorified and depicted killings and violence, the film, as a whole, does not incite commission of any offence.
Submitted for perusal please.
Sd/ --
(B.K. Sharma) Commissioner of Police, Bhubaneswar--Cuttack. "
13. We now deal with the judgment cited by the learned counsel for the petitioner in course of his argument.
13.1. Reliance was placed on the judgment of the Hon'b1e Supreme Court in the case of Moorthy V. State of Tamil Nadu (supra). This judgment rendered by Hon'b1e Supreme Court was in a Criminal Appeal, arising out of an order of conviction passed by the trial court for a double murder. The appellant therein was convicted of murder of a woman, namely, Jayasambal and her son Vijay Anand and was sentenced to death. The appellant was also convicted under Section 302 I.P.C. for attempting to kill Vijay Anand's sister Kavitha Priyadarsini. His appeal before the High Court having been dismissed, the sentence of death was confirmed. A petition was filed against the said judgment. The Hon'ble Supreme Court while confirming the order of conviction against the accused--appellant come to the conclusion that the sentence of death passed against the appellant under Section 302 I.P.C. should be converted to imprisonment for life. While coming to the aforesaid conclusion in relation to the sentence, the Hon'ble Supreme Court also took into account that the convict's mental agitation (as an accentuating factor) and found the appellant to have been fuelled by a movie, showing murder after murder and also commented upon the vicious effect of films picturizing violence in detail on impressionable minds which made a young man who was vulnerably disturbed get upset and therefore, thesociety could not be completely absolved from sharing the responsibility of the resulting tragedy.
13.2. We are afraid that this judgment is of no assistance to the petitioner in the present case. The aforementioned criminal appeal and the observation mode therein that the film can have vulnerably disturbed the Appellant, has been considered only for the purpose of converting the sentence form a sentence of death to life imprisonment. While such a fact may be an essential consideration, while considering the criminal appeal as an accentuating factor, the same standard cannot be applied to the l4 present case. We are of the View that the aforesaid judgment does not assist the petitioner in any manner.
14. Learned counsel for the petitioner also placed reliance on the judgment of Ramesh s/o. Chotala Dalal V. Union of India and others (supra). In this case, the Hon'ble Supreme Court While dealing with a challenge against an order of the Bombay High Court, came to hold that, the finding of the learned Judges of Bombay High Court is that, the picture viewed in its entirety, was capable of creating a lasting impression of the message of peace and coexistence and that people are not likely to be obsessed, overwhelmed or carried away by the scenes of violence or fanaticism shown in the film. The Hon'ble Supreme Court found no reason to differ from this conclusion of Bombay High Court and, therefore, dismissed the same. In View of the aforesaid reasons, this judgment is also of no assistance to the petitioner in the present case
15. l The next judgment that has been cited by the petitioner was rendered by the Delhi High Court in the case of Amitabh Bachhan Corporation Ltd. V. Om Pal Singh Hoon (supra). This very judgment of the Delhi High Court dated 15' May, 1996 came to be "reversed" by the Hon'ble Supreme Court of India in the case of Bobby Art International and others V. Om Pal Singh Hoon and others (supra) and, therefore, no reliance could be placed on the same.
16. It has been well settled law that while judging the likely effect of the exhibition of a film or of reading a book, Justice Vivian Bose in the case of B.C. Shukla Vs. Provincial Government (AIR 1947 Nagpur 1), that the standard must be of 15 reasonable, strong--minded,' firm and courageous men or as has been said in English Law, "the man on the top of a Clapham omnibus", and not those of weak and vacillating minds nor of those who scent danger in every hostile point of view.
17. At this juncture, it became imperative to refer to the judgment of the Hon'ble Supreme Court in the matters at issue delivered by the /Constitution of India in the case of K.A.Abba's V. Union of India, (1970) 2 SCC 780. In the said judgment, the Hon'ble Supreme Court laid down the following standards for evaluation of art and literature such impugned films. Hidayatullah, Hon'ble the then Chief Justice of India speaking for the Court in the aforesaid case at Paragraphs 49 and 50 thereof, is stated as follows:
"49. We may now illustrate our meaning how even the items mentioned in the directions may figure in films subject either to their artistic merit or their social value overweighing their offending character. The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and forever from human thought and must give scope for talent to put them before society. The requirements of \a\ 16 art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censor's scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Laius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one's own mother is permissible or suicide in such circumstances or tearing out one's own eyes is a natural consequence. And yetif one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in' a story or in a documentary are not necessarily outside the protection. If that were so Verrier Elwyn's Phulmat of the Hills or the same episode in Henryson's Testament of Cressaid (from where Verrier Elwyn borrowed the idea) would never see the light of day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the Sack of Delhi by Nadirshah may be V permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical theme without true history P Rape in all its l7 nakedness may be objectionable but Voltair's Candide would be meaningless ' without Cunegonde's episode with the soldier and the story of Lucrece could never be depicted on the screen.
50. Therefore, it is not the elements of rape, leprosy, sexual immorality which should attract the censor's scissors but how the theme is handled by the producer. It must, however, be remembered that the cinematograph is a powerful medium and its appeal is different. The horrors of war as depicted in
- the famous etchings of Goya do not horrify one so much as the same scenes rendered in colour and with sound and movement, would do. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra but a documentary from them as a practical sexual guide would be abhorrent."
18. In the present circumstances of the case, it has also became importance for us to take note of the "standards" laid down by the I-Ion'ble Supreme Court in the case of Bobby Art International (supra) and in particular, Paragraph--31 thereof is quoted hereinbelow:
"A film that illustrates the consequences of a social evil necessarily must show that social evil. The guidelines must be interpreted in that light. No film that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil. At the same time, the depiction must be just sufficient for the purpose of the film. The drawing of the line is best left to the sensibilities of the expert Tribunal. The Tribunal is a multi--member body. It is comprised of persons who gauge public reactions to films and, except in cases of stark breach of guidelines, should be permitted to go about its task."
19. Considering the facts as noted hereinabove and various case laws discussed hereinabove, We are of the considered View that the prayer made by the petitioner cannot be allowed. In 18 View of the principles laid down by the Hon'b1e Supreme Court in the aforesaid Case and the report filed by the Commissioner of Police, Bhubaneswar--Cuttack as noted hereinabove, the writ petition is dismissed but in the circumstances no costs.
I V. Gopala Gowda, C.J. . I agree.
ORISSA HIGH COURT, CUTTACK The September, 2010/ RKS.