1. By this petition filed under Art. 226 of the Constitution, the petitioner is challenging the legality of the order dt. Nov. 25, 1985 passed by the Joint Secretary to the Government of India in exercise of powers under Section 6 of the Cinematograph Act, 1952 (hereinafter referred to as ‘the Act’) reversing the order dt. April 11, 1985 passed by the Film Certification Appellate Tribunal under S. 5C of the Act and directing that the Marathi feature film “Maficha Sakshidar” (Approver) shall not be certified for public exhibition.
2. The broad theme of the film is based on the chain of murders that took place in the city of Pune and which created quite a sensation and ultimately led to the criminal trial came to be known as ‘Joshi-Abhyankar Murdur trial’ and ended in conviction of the accused and imposition of death sentences. The petitioner is a producer of the films and the film in question after completion was submitted for certificate to the Central Board of Film Certification, Bombay, on Sept. 19, 1983. The film opens with a court scene and the approver making his statement and then with a flash back the series of murders committed by the accused are pictured. The offenders are students studying in local college and initially the members of the gang indulged in stealing scooters and motor-bikes parked on the streets. Subsequently, the leader of the gang, one Raghavendra, moots an idea whereby demand of a large sum of money is made to the father of one of the team-mates on the pretext that his son has been kidnapped and shall be released only on payment of the amount. The play fails to work, as the father approaches the police and declines to pay the amount. The gang then decides to murder the team-mate who was alleged to have been kidnapped and after murder the body is put in a drum, which is dumped in a tank situated in the park. The members of the gang then decide to commit robbery in the bungalow of one Bhise and during the commission of the crime murder three members of the family. The gang then proceeds to the bungalow of an old Sanskrit Scholar and while robbing his house commits murder of five family members. The gang thereafter proceeds to another bungalow and tries to rob the occupants but fails in their endeavour and had to flee due to a daring act of a courageous young lad. By this time there is quite a stir in the town and the police and the Government officers were taken to task by the people. One of the team-mates thereafter advises the gang leader to stop the commission of any further crime and that angers the leader and that team member is also murdered and the dead body is thrown in the river. The murders are committed by means of strangulation by a rope and the offenders take precaution of wearing gloves so as not to leave behind any finger marks and also used to spray aromatic liquid at the scene of offence with a view to baffle the police dogs, who were likely to trace the offenders. At this juncture one of the offenders decides to leave the gang and is thereupon threatened by the other members with dire consequences. The offender thereupon rushes to the police station and makes a clean breast of the offences committed by him in the company of the other accused. The police machinery then immediately takes steps to round up the accused and the four accused are tried in the Court of Session and the approver gives evidence. The trial results into conviction of four accused and imposition of sentence of death. While the four accused are carried in the police van to the jail, the gang leader is assaulted by the remaining three accused causing serious injuries and the gang leader is removed to the hospital. The mother of the gang leader reaches the hospital and decides to punish her son who has caused great anguish to several families, and cuts the life-giving tubes attached to the leader resulting into his instant death. The remaining three accused are hanged in accordance with law.
3. The film after being submitted for certification by the petitioner was viewed by the examining committee consisting of five members and on Sept. 20, 1983 decided to grant ‘A’ Certificate without any cuts. However, the Chairman, Central Board of Film Certification on his own referred the film to the Revising Committee consisting of nine members. The Revising Committee viewed the film on October 14, 1983 and six members felt that ‘A’ Certificate should be granted, but differed amongst themselves about the cuts to be effected; while the remaining three members declined to issue certificate for the release of the film. Thereupon a second Revising Committee was constituted by the Chairman and this Committee unanimously communicated refusal of certificate. The petitioner was informed of the provisional decision of refusal of certificate and was called upon to show cause why that decision should not be confirmed. After considering the representation made by the petitioner, the Committee confirmed its earlier decision. The petitioner then prepared a revised version after deleting about 227 feet film from the original version and resubmitted it for certification. The Examining Committee recommended refusal of certificate and so also the Revising Committee. The petitioner again made representation, but without any favourable response. Ultimately, the petitioner was informed on December 12, 1983 that the certificate cannot be granted.
The petitioner thereupon preferred an appeal before the Film Certification Appellate Tribunal and the Tribunal after viewing the film suggested 11 cuts, which the petitioner carried out and thereafter the Appellate Tribunal allowed the appeal and directed the Censor Board to issue ‘A’ certificate. The petitioner thereupon approached the Board for grant of certificate but was informed that the matter has been referred to the Government and the decision of the Government is awaited.
On July 11, 1985 the respondent 2 Joint Secretary in the Ministry of Information and Broadcasting, served a notice on the petitioner informing that the Appellate Tribunal did not fully appreciate the implication of the certification of the film and the Central Government has provisionally come to the conclusion that the film should not be granted certificate for public exhibition. The petitioner was called upon to make representation before the final decision is taken. The petitioner made representation and thereafter the impugned order was passed by respondent 2 holding that the film offends the guidelines relating to violence, cruelty, modus operendi of criminals and depravity as mentioned in Para 2(i), (ii), (iii) and (iv) of the guidelines issued by the Central Government, and thus contravenes the provisions relating to decency and incitement to the commission of an offence within the meaning of S. 5-B(1) of the Act. On the strength of this finding the certificate was refused and that order is under challenge in this petition filed in this Court on Jan. 8, 1986.
4. Shri Shah, learned counsel appearing on behalf of the petitioner, submitted that the order passed by respondent 2 suffers from serious infirmity and is required to be quashed because respondent 2 has exceeded his jurisdiction conferred under S. 6 of the Act and has treated the matter as an appeal against the order of the Appellate Tribunal. The learned counsel argued that it is not permissible for the Central Government to sit in appeal over the order of the Appellate Tribunal and disturb the conclusion by imposing the personal view of respondent 2, who is not qualified to judge the effect of films on the public. Shri Shah further submitted that respondent 2 has not done anything except reiterating the grounds which were given by the Censor Board for declining to issue the certificate. The learned counsel demonstrated that each and every ground furnished by the Censor Board was imaginary and the film did not contravene any of the guidelines made by the Central Government. Shri C.J Shah, learned counsel appearing on behalf of the respondents, on the other hand urged that the Central Government was perfectly justified in exercising revisional jurisdiction under S. 6 of the Act as the Appellate Tribunal had failed to furnish cogent reasons for grant of certificate. The learned counsel urged that the reasons furnished by the Censor Board should have been accepted as that board comprises members who are familiar with the film work and are aware as to what would be the impact of a particular film on the general public.
5. Before considering the grievance of the petitioner, it is necessary to set out some of the provisions of the Act and the guidelines. The object of the Act is to make provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs. The Central Government is empowered to constitute a Board of Film Censors under S. 3 of the Act. Section 5-A prescribes that after examining the film the Board may grant certificate for unrestricted public exhibition a ‘U’ certificate or a ‘A’ certificate for exhibition only to adults. Section 5-B sets out principles for guidance in certifying films and reads as under:
“5-B(1) 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 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 in incite the commission of any offence.
(2) Subject to the provisions contained in sub-section (1) 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 under this Act in sanctioning films for public exhibition.”
Section 5-C confers a right upon an aggrieved person to file an appeal before the Appellate Tribunal. Section 5-D deals with constitution of Appellate Tribunal and prescribes that the Tribunal shall consist of a Chairman and not more than four other members appointed by the Central Government. A person is not qualified for appointment as a Chairman unless he is a retired Judge of a High Court or a person who is qualified to be a Judge of the High Court. The Central Government is required to appoint such persons who are qualified to judge the effect of films on the public as members of the Tribunal. The Tribunal can make any order in relation to a film, as it thinks fit, after making such inquiry as it considers necessary and after giving the appellant and the Board an opportunity of being heard in the matter. Section 6 of the Act deals with revisional powers of the Central Government to call for the record of any proceeding decided by the Tribunal and make such order in relation thereto as it thinks fit after making inquiry into the matter and after I giving opportunity to the party likely to be affected by the decision.
In exercise of powers conferred by sub-sec. (2) of S. 5-B of the Act, the Central Government has framed the guidelines and it sets out that the objectives of film censorship will be to ensure that (a) the medium of film remains responsible and sensitive to the values and standards of society; (b) artistic expression and creative freedom are not unduly curbed; and (c) censorship is responsible to social change. The four relevant guidelines for the purpose of this petition are 2(i), (ii), (iii) and (iv). Guideline 2(i) requires the Board to ensure that anti-social activities, such as violence, are not glorified or justified, Guideline 2(ii) to ensure that the modus operandi of criminals or other visuals or words likely to incite the commission of any offence are not depicted; Guideline 2(iii) requires to ensure that poindess or avoidable scenes of violence, cruelty and horror are not shown and Guideline 2(iv) requires to ensure that human sensibilities are not offended by vulgarity, obscenity and depravity.
6. The Appellate Tribunal was constituted under Section 5-D of the Act which was introduced by Amending Act No. 49/81 dt. Dec. 18, 1981. This amended provision, providing for appeal to the Appellate Tribunal, was introduced and the earlier provision for appeal to the Central Government was deleted in view of the decision of the Supreme Court reported in AIR 1971 SC 481, K.A Abbas v. Union of India. A petition was filed before the Supreme Court for a declaration that provisions of Part II of the Cinematograph Act, 1952 together with the rules prescribed by the Central Government are unconstitutional and void. Four contentions were raised in support of the claim and those were (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 authorities 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 appearing on behalf of the Union of India, conceded that points (c) and (d) are correct, and assured the Supreme Court that the Government would set on foot legislation to effectuate them at the earliest possible opportunity. The Supreme Court held that in view of the procedural safeguards, assured to be introduced by the Solicitor-General, will make censorship accord with our fundamental law. The Appellate Tribunal was constituted in pursuance of the assurance and it is obvious that the intention of the Legislature was to have an independent body of experts presided over by a retired Judge of the High Court or a person qualified to be a Judge of the High Court. The Parliament constituted such high powered body with an intention to create confidence in the mind of the producer of a film that his case would be examined by an independent forum consisted of members qualified to judge the effect of the film on public.
7. In the present case the reasons given by the Board for refusal of certificate are (1) that the film is an attempt to exploit a recent tragic incident, it shows that ruthless, coldblooded, unprovoked killings of several innocent persons, (3) the main culprit is shown to be deriving sadistic pleasure each time when he kills a person, (4) the theme and treatment of the film involve a certain amount of modus operandi which can have an emulative impact on the minds of educated youth, and (5) the film hurts the sensibilities of the viewers by depravity. Against this decision of the Board, the petitioner carried an appeal and it was heard by the Tribunal consisting of Chairman Shri V.D Misra, a former Judge of the Delhi High Court, Shri N.J Kamath and Smt. Manmohani Sehgal, the two members. I am informed at the Bar that Shri Kamat is a linguist and is familiar with the Marathi language. The Tribunal viewed the film and suggested 11 cuts and the petitioner accepted the same and thereafter the film was again viewed and the Tribunal felt that ‘A’ certificate with the cuts should be granted. The respondent 2, the Joint Secretary to the Government of India, has disturbed the decision broadly on three grounds (1) that the Tribunal has not given any cogent reasons for disagreeing with the Board which consisted of eminent people with a lot of experience in examination of films, (2) the wanton killings by the group led by a ring leader and the details of killings and the victims shown in the film are objectionable in general and are likely to mislead immature young persons prone to delinquency in particular, and (3) that the guidelines issued by the Central Government have been violated in the film as in scene after scene brutal and mindless violence has been shown while depicting the murders. Respondent 2 had seen the film before passing the order, but does not claim any familiarity with the Marathi language or claim to be qualified to judge the effect of films on the public.
8. In my judgment, the submission urged on behalf of the petitioner that respondent 2 committed an error in disturbing the order of the Appellate Tribunal by exercise of powers under S. 6 of the Act deserves acceptance. It is necessary to remember that the Legislature has constituted the Appellate Tribunal in accordance with the assurance given by the Solicitor General to the Supreme Court that the appeal would be provided to an independent Tribunal and nor to the Central Government. The Legislature in its wisdom prescribed that the Tribunal should consist of a Chairman who is a retired High Court Judge and the members qualified to judge the effect of films on the public. The Act prescribes only one appeal to the Tribunal and the Tribunal is required to dispose of the appeal after hearing the aggrieved person as well as the Censor Board who has declined to grant the certificate. To give effect to the intention of the Legislature, it is necessary that orders of the Appellate Tribunal are not made subject of a further appeal by the Central Government and indeed the Legislature does not prescribe for a second round of appeal. S. 6 of the Act undoubtedly confers the revisional powers on the Central Government, but it hardly requires to be stated that exercise of such powers should be in exceptional circumstances and not as a matter of routine. The powers are delegated by the Central Government in favour of the Joint Secretary and it cannot be overlooked that the Joint Secretary is not qualified to judge the effect of film on the public, nor he has an experience in examination of films. To permit such a bureaucrat to disturb the conclusion recorded by the Appellate Tribunal, which is a high powered body, by reviewing the film and by substituting the personal view, would make the mockery of the substantive right of appeal conferred on the producer. It cannot be denied that the Central Government has power under S. 6 of the Act to inquire into any matter decided by the Appellate Tribunal, but such powers should be exercised very sparingly and in exceptional circumstances. Moreover, such power should be exercised not to determine whether the film suffers from the vice of indecency or immorality, but only to determine whether the public exhibition would be detrimental to the interest of the country or the security of the State or public order. The question as to whether a film offends the guidelines as regards the violence, vulgarity or obscenity depends upon several factual circumstances and in respect of which when the expert body, like an Appellate Tribunal, has opined, then it is desirable that the Central Government should not casually disturb that conclusion and especially by exercise of powers by the Secretary who is not qualified to judge the effect of film on the public. Respondent 2 should not have substituted his personal opinion in place of the decision given by an expert body constituted by the statutory provisions. The decision recorded by respondent 2 clearly indicates that the matter has been treated as another appeal against the order of the Appellate Tribunal and that was certainly not permissible. The decision of respondent 2 is therefore required to be set aside on the ground of exceeding jurisdiction conferred under S. 6 of the Act.
9. But apart from this consideration, in my judgment, the reasons given by respondent 2 for setting aside the order of the Appellate Tribunal are not sustainable even on merits. To ascertain whether the observations made by respondent 2 on the merits of the film are accurate or otherwise, I viewed the film in the presence of the learned counsel and my mother tongue being Marathi, I could follow the theme and dialogue very well. Respondent 2 observed in the impugned order that the Tribunal has not given any cogent reasons for disagreeing with the Censor Board which consisted of eminent people with lot of experience in examination of the films. This observation clearly over looked that the Appellate Tribunal also consisted of eminent people with larger experience in examination of films. It is difficult to understand how respondent 2 could disturb the conclusion of the Appellate Tribunal on the ground that cogent reasons for disagreement with the Censor Board were not given. Respondent 2 failed to appreciate that the Appellate Tribunal was-not expected to write a long judgment dealing with each and every aspect of the matter. The Appellate Tribunal had viewed the film and then suggested as many as 11 cuts. Thereafter the Appellate Tribunal again viewed the film and, heard both, the petitioner and the Censor Board, in support of their respective claims. The Appellate Tribunal only thereafter recorded a reasoned order. It is not permissible for respondent 2 to set aside this order in revisionary jurisdiction merely because respondent 2 feels that contrary view taken by the Censor Board is preferable.
Respondent 2 then observed that in the film more than half a dozen murders have been depicted in detail and this statement is factually incorrect. The film shows only six murders and they have not been depicted in i detail. The observations of respondent 2 “In my opinion, the wanton killings by the group led by a ring leader and details of killings and; the victims shown in the film are objectionable in general and are likely to mislead immature r young persons prone to delinquency in particular” clearly indicate that respondent 2 was substituting his personal subjective, opinion in place of the decision taken by the Appellate Tribunal. It is always risky and dangerous to import the personal views in such matters and more so when one is not qualified to judge the effect of the film on the public. The bureaucracy should be cautious to rush in the field which is specialised and it would be extremely prejudicial to a film maker who has spent a large amount and time over preparation of the film to be told by a bureaucrat that according to his personal moral standards the film should not be exhibited. I must observe that after viewing the film I did not feel that the film depicts wanton killings or is likely to mislead immature yound people prone to delinquency in particular, nor did I feel that the killings are casual and without any provocation. The offenders committed murders with an intention to rob victims and the film at no stage glorifies or justifies the action of the accused, but on the other desires to convey a message that the crime does not pay. I wish to make it very clear that I am not trying to I substitute my own judgment, but only wish to convey that the conclusion recorded by the Appellate Tribunal could not be said to be faulty or suffering from any infirmity.
10. Respondent 2 also observed that the Guidelines 2(i) to (iv) were violated by the petitioner, but it is not possible to accept the observations made by respondent 2 in this connection. At no stage in the film anti-social activities and the violence are tried to be glorified or justified, but on the other hand efforts are made to convey that violence and anti-social activities should be prevented and if any one tries to indulge in the same then the arms of law would reach and the offender would not only be punished but would ruin his entire family. It is also futile for respondent 2 to suggest that the modus operandi of criminals or other visuals are likely to incite the commission of any offence. It was urged on behalf of the respondents that the offenders are shown to be committing murders by strangulation with the aid of a rope and are also spreading aromatic liquid at the scene of offence and that is the modus operandi which is likely to incite the commission of further offence by the young people. It is impossible to accede to the submission for more than 1 one reason. In the first instance, there is no modus operandi in strangulation of victims with the aid of rope or by spreading aromatic liquid at the scene of offence. This modus operandi is not unknown to criminal world. Secondly, the Appellate Tribunal while suggesting the cuts provided that the sequences showing the murders should be reduced to minimum and it was specifically directed that visual showing spraying of scent should be deleted. The petitioner accepted the cuts and after reviewing the film the Appellate Tribunal had granted certificate. Guideline (iii) prescribes that pointless or avoidable scenes of violence, cruelty and horror should not be shown. The Appellate Tribunal directed the petitioner to delete all gruesome shots and permitted only one shot showing the throwing of string round the neck of the victim. The petitioner was also directed to reduce the sequences showing the murders and on satisfaction that such cuts were in fact implemented, the Appellate Tribunal granted the certificate. It is difficult to understand how respondent 2 thereafter can come to the conclusion that the film depicts pointless or avoidable scenes of violence. The last ground suggested by respondent 2 is that the human sensibilities are offended by vulgarity, obscenity and depravity, but the learned counsel for the respondents had to concede that the film does not suffer from this alleged violation of the guidelines and could not be branded as vulgar or obscene. In my judgment, respondent 2 was clearly in error in setting aside the well reasoned order of the Appellate Tribunal and substitute his personal opinion. The order of respondent 2 therefore deserves to be set aside.
11. Accordingly, petition succeeds and the rule is made absolute in terms of prayer (a). The respondents are directed to issue certificate to the film of the petitioner, as directed by the Appellate Tribunal, within a period of two weeks from today. In case the petitioner submits the Hindi version of the film for certification, then the respondents shall dispose of that application in accordance with the rules and in the light of this judgment.
In the circumstances of the case, there will be no order as to costs.
Petition allowed.
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