TMI Blog1970 (9) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... a documentary film entitled 'A Tale of Four Cities' produced by him for unrestricted public exhibition. The petitioner is a journalist, playwright and writer of short stories. He is also a producer and director of cinematograph films. He was a member of the Enquiry Committee on Film Censorship (1968) and is a member of the Children's Film Committee. He has produced and/or directed many films some of which have been well-received here and abroad and even won awards and prizes. The petitioner produced in 1968 a documentary film in 2 reels (running time 16 minutes) called a Tale of Four Cities. In this film he purported to contrast the luxurious life of the rich in the four cities of calcutta Bombay, Madras and Delhi, with the squalor and poverty of the poor, particularly those whose hands and labour help to build beautiful cities, factories and other industrial complexes. The film is in black and white and is silent except for a song which the labourers sing while doing work and some background music and sounds for stage effect. The film, in motion sequences or still shots, shows contrasting scenes of palatial buildings, hotels and factories--evidence of the prospe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt path. The film then passes on to its previous theme, of contrasts mentioned above, often repeating the earlier shots in juxtaposition as stills. There is nothing else in the film to be noticed either by us or by the public for which it is intended. The petitioner applied to the Board of Film Censors for a 'U' certificate for unrestricted exhibition of the film. He received A. letter (December 30, 1969) by which the Regional Officer informed him that the Examining Committee and the Board had provisionally come to the conclusion that the film was not suitable for unrestricted public exhibition but was suitable for exhibition restricted to adults. He was given a chance to make representations against the tentative decision within 14 days. Later he was informed that the Revising Committee had reached the same conclusion. He represented by letter (February 18, 1969) explaining the purpose of the films as exposing the exploitation of man (or woman) by man' and the contrast between the very rich few and the very poor masses. He claimed that there was no obscenity in the film. He was informed by a letter (February 26, 1969) that the Board did not see any reason to alter its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t violative of the fundamental right. When the matter came up for hearing the petitioner raised four points : (a) that pre-censorship itself cannot be tolerated under the freedom of speech and expression, (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action, (c) that there, must be a reasonable time-limit fixed for the decision of the autho- rities censoring the film, and (d) that the appeal should lie to a court or to an independent tribunal and not the Central Government. The Solicitor-General conceded (c) and (d) and stated that Government would set on foot legislation to effectuate them at earliest possible opportunity. Since the petitioner felt, satisfied with, this assurance we did not go into the matter. But we must place on record that the respondents exhibited charts showing the time taken in the censorship of films during the last one year or so and. 45 2 we were satisfied that except in very rare cases the time taken could not be said to be unreasonable. We express our satisfaction that the Central Government will cease to perform curial functions through one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment with such other forms. He claims that there is no justification for a differential treatment. He contends next that even the standards laid down are unconstitutional for many reasons which we shall state in proper place. This is the first case, in which the censorship of films in general and precensorship in particular have been challenged in this Court' and before we say anything about the arguments, it is necessary to set down a few facts relating to censorship of films and how it works in India. The Government of India appointed a Committee on March 28, 1968 to enquire into the working of the existing procedures for certification of cinematograph films for public exhibition in India and allied matters, under the Chairmanship of Mr. G. D. Khosla, former Chief Justice of the Punjab High Court. The report of the Committee has since been published and contains a valuable summary of the law of censorship not only in India but also in foreign countries. It is hardly helpful to the determination of this case to go into this history but it may be mentioned here that it is the opinion of experts on the subject that Indian :film censorship since our independence has become on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Act was passed and it is Act 37 of 1952 (amended in 1959 by Act 3 of 1959) and that is the present statutory provision on the subject. It established a Board of Film Censors and provided for Advisory Panels at Regional Centres. Every person desiring to exhibit any film has to apply for a certificate and the Board after examining the film or having the film examined deals with it by: (a)sanctioning the film for unrestricted public exhibition; (b)sanctioning the film for public exhibition restricted to adults; (c)directing such excisions and modifications as it thinks fit, before sanctioning the film for unrestricted public exhibition or for public exhibition restricted to adults, as the case may be; or (d) refusing to sanction the film for public exhibition. The film producer is allowed to represent his views before action under (b) (c) and (d) is taken. The sanction under (a) is by granting a 'U' certificate and under (b) by an 'A' certificate and the certificates are valid for ten years. The Act then lays down the principles for guidance and for appeals i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General Principles three in number, followed by directions for their application in what are called 'ruled'. The part dealing with the application of the principles is divided into four sections and each section contains matters which may not be the subject of portrayal in films. We may quote the General Principles here 1. No picture shall be certified for public exhibition which will lower the moral standards of those who see it. 45 6 Hence, the sympathy of the audience shall not be thrown on the side of crime, wrong-doing, evil or sin. 2.Standards of life, having regard to the standards of the country and the people to which the story relates, shall not be so portrayed as to deprave the morality of the audience. 3. The prevailing laws shall not be so ridiculed as to create sympathy for violation of such laws. The application of the General Principles is indicated in the four sections of the rules that follow so that a uniform standard may be applied by the different regional panels and Boards. The first section deals with films which are considered unsuitable for public exhibition. This section is divided into clauses A to F. 'Clause A deals with the del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e B similar directions are given with regard to vice and immoral acts and vicious and immoral persons. In Clause C the unsuitability arises from lowering the sacredness of the institution of marriage and depicting rape, seduction and criminal assaults on women, immoral traffic in women, soliciting prostitution or procuration, illicit sexual relations, excessively passionate love scenes, indelicate sexual situations and scenes suggestive of immorality. In Clause D the exhibition of human form in nakedness or indecorously or suggestively dressed and indecorous and sensuous postures are condemned. In Section 11 are mentioned confinements, details of surgical operations, venereal diseases and loathsome diseases like leprosy and sores, suicide or genocide, female under clothing, indecorous dancing, importunation of women, cruelty to children, torture of adults, brutal fighting, gruesome murders or scenes of strangulation, executions, mutilations and bleeding, cruelty to animals, drunkenness or drinking not essential to the theme of- the story, traffic and use of drugs, class hatred, horrors of war, horror as a predominant element, scenes likely to afford information to the enemy in time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uries of political and cultural domination, is still suffering from a confusion and debasement of cultural values. Freedom of expression cannot, and should not, be interpreted as a licence for the cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar taste' Further it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its coordination of the visual and aural senses. The art of the cameraman, with trick photography, vistavision and three dimensional representation thrown in, _ has made the cinema picture more true to life than even the theatre or indeed any other form of representative art. The motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than 45 9 mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the State has power to prevent. This is not to say that it is enough if there is 'fear', there must be reasonable grounds to fear that serious evil would result from the exercise of speech and expression. (b)There must be a 'present' or 'imminent' danger and for this there must be reasonable grounds to hold this opinion and that no reasonable opportunity was available to avert the consequences; and (c)The substantive evil to be prevented must be serious' before there can be a prohibition on freedom of speech and expression for the police power of the State could not be exercised to take away the guarantee to avert a relatively trivial harm to society. In 1931 in Near v. Minnesota immunity of press from pre- censorship was denied but pre-censorship (as it is termed previous restraint) was not to be unlimited. A major purpose of the First Amendment was to prevent prior restraint. The protection was not unlimited but put on the state the burden of showing that the limitation challenged in the case was exceptional. In 1941 the Court handed down in Chaplinsky v. New Ham- pshire the opinion that free speech was not absolute at all times and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the best interests of people'-, 'tending to corrupt morals', 'harmful' were considered vague criteria. In Kingsley International Pictures Corpn. v. Regents(1) where the film Lady Chatterley's Lover was in question, certain opinions were expressed. These opinions formed the basis of the arguments on behalf of the petitioner. Justice Black considered that the court was the worst of Board Censors because they possessed no special expertise. Justice Frankfurter was of the opinion, that 'legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what was permissible expression as well as what society might permissibly prohibit, always remembering that the widest scope for freedom was to be given to the adventurous and imaginative exercise, of human spirit. . . . . Justice Douglas considered prior restraint as unconstiutional. According to him if a movie violated a valid law, the exhibitor could be prosecuted. The only test that seemed to prevail was that of obscenity as propunded inRoth v. United States. In that three tests were-laid down: (a)that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the other hand, speaking for the majority, said : . . . . It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. 46 3 It is not for this Court to limit the State in its selection of the remedy it deems most effective. to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances. The argument that exhibition of moving pictures ought in the first instance to be free and only a criminal prosecution should be the mode of restraint when found offensive was rejected. The precensorship involved was held to be no ground for striking down a law of censorship. The minority was of the opinion that a person producing a film must know what he was to do or not to do. For, if he were not sure he might avoid even the permissible. In Interstate Circuit Inc. v. Dallas certain expression were considered vague including 'crime delinquency' 'sexual promiscuity' 'not suitable, for young persons. According to the court the statute must state narrowly drawn, reasonably definite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this should allow full liberty to the growth of art and literature. Age classification is permissible and suitability for special audiences is not to depend on whether the average man would have considered the film suitable. Procedural safeguards as laid down in the Freedman case(3) must also be observed. The film can only be censored if it offends in the manner set out in Roth's case. The petitioner put before us' all these dicta for our acceptance and added to them the rejection of censorship, particularly prior censorship by Chief Justice Warren and Justices Black and Douglas. He pointed out that in England too the censorship of the theatre has been abolished by the Theatres Act 1968 (1968 C. 54) and submitted that this is the trend in advanced countries. He also brought to our notice the provisions of the Obscene Publications Act, 1959 (7 8 Eliz. 2 C. 66), where the test of obscenity is stated thus : 1. Test of obscenity. (1)For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has now been amended by the Cinematograph Act of 1952. Restrictions were placed on the exhibition of films to children (s.4) and on the admission of children to certain types of film. Today censorship of films is through the British Board of Film Censors which is an independent body not subject to control by the State. An elaborate inquiry is already on foot to consider whether state control is needed or not. Censorship of films is run on the lines 4 6 6 set by T.P. O'Connor in 1918. These directions, as we said earlier, have had a great influence upon our laws and our directions issued by the Central Government, follow closely the 43 points of T.P. O'Connor. It is wrong to imagine that there is no censorship in England. The Khosla Committee (p. 32) has given examples of the cuts ordered and also a list of films which were found unsuitable. The Board has never worked to a Code although the directions are followed. By 1950 three general, principles were evolved. They are 1.Was the story, incident or dialogue likely to impair the moral standards of the public by extenuating vice or crime or depreciating moral standards ? 2.Was it likely to give offence to reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout having to adopt a too liberal construction of s. 5-B. It, therefore, follows that the American and the British precedents cannot be decisive and certainly not the minority view expressed by some of the Judges of the Supreme Court of the former. The American Constitution stated the guarantee in absolute terms without any qualification. The Judges try to give full effect to the guarantee by every argument they can validly use. But the strongest proponent of the freedom (Justice Douglas) himself recognised in the Kingsley case that there must be a vital difference in approach. This is what he said : If we had a provision in our Constitution for 'reasonable' regulation of the press such as India has included in hers, there would be room for argument that censorship in the interests of morality would be permissible . In spite of the absence of such a provision Judges in America have tried to read the words 'reasonable restrictions' into the First Amendment and thus to make the rights it grants subject to reasonable regulation. The American cases in their majority opinions, therefore, clearly support a case of censorship. It would appear from ',thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irections as it may think fit setting out the principles which shall guide the authority competent to grant certificates under the Act in sanctioning films for public exhibition. The first question raised before us is that the legislature has not indicated any guidance to the Central Government. We do not think that this is a fair reading of the section as a whole. The first sub-section states the principles and read with the second clause of the nineteenth article it is quite clearly indicated that the topics of films or their content should not offend certain matters'there set down. The Central Government in dealing with the problem of censorship will have to bear in mind those, principles and they will be the philosophical compass and the logical methods of Ahrens. Of course, Parliament can adopt the directions and put them in schedule to the Act (and that may still be done), it cannot be said that there is any delegation of legislative function. If Parliament made a law giving power to close certain roads for certain vehicular traffic at stated times to be determined by the Executive authorities and they made regulations in the exercise of that power, it cannot for a mom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue process of law. The learned Judge observes in relation to this as follows But the rule enunciated by the American Courts has no application under our constitutional set up. This rule is regarded as an essential of the 'due process clause' incorporated in the American Constitution by the 5th and 14th Amendments. The courts in India have no authority to declare a statute invalid on the ground that it violates 'the due process of law'. Under our Constitution, the test of due process of law cannot be applied to the statutes enacted by the Parliament or the State Legislature . Relying on the observations of Kania C.J. in A. K. Gopalan v. The State of Madras ([1950] S. C. R. 88) to the effect that a law cannot be declared void because it is opposed to the spirit supposed to pervade the Constitution but not expressed in words, the conclusion above set out is reiterated. The learned Judge, however, adds that the words 'cattle fair' in act there considered are sufficiently clear and there is no vagueness. These observations which are clearly obiter are apt to be too generally applied and need to be explained. While it is true that the princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections seek to do no more than restate the permissible restrictions as stated in cl. (2) of Art. 19 and S. 5-B(1) of the Act. They cannot be said to be vague at all. Similarly, the principles in S. IV of the directions in relation to children and young persons, are quite specific and also salutary and no exception can be taken. It is only the instances which are given in Section I Clauses A to D which need to be considered. Read individually they give ample direction as to what may not be included. It is argued on the, basis of some American cases already noticed by us that these expressions are vague. We do not agree. The words used are within the common understanding of the average man. For example the word 'rape' indicate what the word is, ordinarily, understood to mean. It is hardly to be expected or necessary that the definition of rape in the Penal Code must be set down to further expose the meaning. The same may be said about almost all the terms used in the directions and discussed before us. We do not propose to deal with each topic for that is really a profitless venture. Fundamental rights are to be judged in a broadway. It is not a question of semantics but of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erformed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant. (4) An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall. (5)The interest s of contemporary society and particularly the influence of the book etc., on it must not be overlooked. (6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked. (7) Treating with sex in a manner offensive to public decency or morality which are the words of our Fundamental Law judged by our national standards and considered likely to pender to lascivious, prurient or sexually precocious minds must determine the result. (8) When there is propagation of ideas, opinions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 for ever from human thought and must give scope for talent to put them before society. The requirements of 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 man 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 essen- tially obscene or even indecent or immoral. It should be our con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oints of T.P. O'Connor framed in 1918 and have made a comprehensive list of what may not be shown. Parliament has left this task to the Central Government and, in our opinion, this could be done. But Parliament has not legislated enough, nor has the Central Government filled in the gap Neither has separated the artistic and the sociably valuable from that which is deliberately indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the freedom of the, individual. They have thought more of the depraved and less of the ordinary moral man. In their desire to keep films from the abnormal, they have excluded the moral. They have attempted to bring down the public motion picture to the level of home movies. It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi's case ([1965] 1 S.C.R 65) certain considerations for the guidance of censorship of books. We think that those guides work as well here. Although we are, not inclined to hold that the directions are defective in so far as they go, we are, of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
