TMI Blog1979 (10) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... s required, not by the Code, but by a High Court rule, although the original order, together with all the records, had been sent for and was before the court ! A besetting sin of our legal system is the tyranny of technicality in the name of financial legality, hospitably entertained sometimes in the halls of justice. Absent orientation, justicing becomes 'computering' and ceases to be social engineering. The story briefly. Only a woodcut of the profile of the case will do. A unique pro bono publico prosecution was launched by a private complainant, claiming (before us) to be the President of a Youth Organisation devoted to defending Indian cultural standards, inter alia, against the unceasing waves of celluloid anti-culture, arraigning, together with the theatre owner, the producer, actors and photographer of a sensationally captioned and loudly publicised film by name Satyam, Sivam, Sundaram, under Ss. 282, 283 and 34 Indian Penal Code (hereinafter referred to as the Penal Code) for alleged punitive prurience, moral depravity and shocking erosion of public decency. Were there serious merit in the charge, a criminal prosecution would serve to sanitize the polluted ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d because a revision lay and the revision was rejected because a copy of the order was not filed though the original itself was in the file. Thus the merits of the revision remain to be decided and preliminary skirmishes on points of procedure in a criminal prosecution have consumed well over a year. Two questions may be formulated for decision-one of jurisdiction and consequent procedural compliance, the other of jurisprudence as to when, in the setting of the Penal Code, a picture to be publicly exhibited can be castigated as prurient and obscene and violative of norms against venereal depravity. Art, morals and law's manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State made straight-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics. The world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d illegally, vexatiously or as being without jurisdiction. (2) In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extra-ordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the courts process. Can we state that in this third category the inherent power can be exercised ? In the words of Untwalia. J.: The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immateria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a risky operation with portentous impact on fundamental freedoms, and in our constitutional order the root principle is liberty of expression and its reasonable control with the limits of 'public order, decency or morality'. Here, social dynamics guides legal dynamics in the province of 'policing' art forms. It is deplorable that a power for good like the cinema, by a subtle process, and these days, by a ribald display, vulgarises the public palate, pruriently infiltrates adolescent minds, commercially panders to the lascivious appetite of rendy crowds and inflames the lecherous craze of the people who succumb to the seduction of sex and resort, in actual life, to 'horror' crimes of venereal violence. The need to banish cinematographic pornos and the societal strategy in that behalf had led to the Cinematograph Act, 1952. The Censor Board, under this Act, is charged with power to direct doctoring, tailoring, sanitizing and even tabooing films so that noxious obscenity may not be foul and erotic aroma make mass appeal. I am satisfied that the Film Censor Board, acting under s. 5A, is specially entrusted to screen off the silver screen pictures whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rater than romantic idealism or recluse extremism. After all, Cohen's words, in Reason and Law, are good counsel: The law is not a homeless, wandering ghost. It is a phase of human life located in time and space. (1) I reject the extreme contention that a board certificate bars the criminal court's jurisdiction to try for offences under s. 292/293 I.P.C. The general guide-lines, so far as is necessary, have been given. Since we are directing the High Court to re-hear the case, there is no room for further examination of the law except to sketch the perspective. The inter-action and cross-fertilisation of law and morality are interesting subjects for research and the guardian role of the court to paint paradigms of virtue or prescribe parameters of morals is too moot for glib assertion. Public policy on good morals is woven by society from within, although when degeneracy goes deep the State cannot sleep. Speaking generally, government-prescribed morality often turns out to be a remedy which aggravates the malady. But law's imperatives and court's commands can work well once popular institutions and voluntary groups mobilise the basic virtues and catalise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropolitan Magistrate's order summoning the appellants was not filed with it. After arguments before us had proceeded to a point, counsel for the parties agreed that the High Court should not have rejected the revision petition at the stage it had reached and that the matter called for a decision on the merits. In the circumstances, the controversies embodied in the two questions become wholly academic, and it is unnecessary to adjudicate on them. But the further question which has been debated before us relates to the relevance and probative value of the certificate issued by the Board of Censors certifying under s. 6 of the Cinematograph Act that the film Satyam Shivam Sundaram has been approved for public exhibition to an adult audience. We have been invited to express our views on the point as, counsel urge, it will arise directly in the litigation pending before the High Court and the Metropolitan Magistrate and our observations, they say, would foreclose any further dispute on an issue of law of some importance. There is no difficulty in laying down that in a trial for the offences under ss. 292 and 293 of the Indian Penal Code a certificate granted under s. 6 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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