General,Directorate General of Doordarshan & Ors Vs. Anand Patwardhan & Anr
 Insc 537 (25
Ar. Lakshmanan & Lokeshwar Singh Panta Dr. Ar. Lakshmanan, J.
appellant in the present matter is Doordarshan who have decided not to telecast
the documentary film made by the respondent titled "Father, son and Holy
War". The respondent is a filmmaker. The respondent no.1 in 1995 submitted
his documentary film, "Father, son and Holy War", to the appellant
for telecast on National network Doordarshan.
no.1 was to provide a U-matic Certificate for the same to be aired by Doordarshan.
documentary film was in two parts, the film dealt with social realities and
issues such as patriarchy, violence, fundamentalism, suppression of women etc.
Part-I was given 'U' Certificate and Part-II was given 'A' Certificate by the
lines about the film and the producer:- Father, Son and Holy War is the third
part of a trilogy of documentary films against communal violence that the
author made from the mid 1980's to the mid 1990's. His two earlier films In
Memory of Friends (1990) (on building communal peace in strife torn Punjab) and Ram Ke Naam/In the Name of God
(1992) (on the Ayodhya crisis) looked at the question of class and caste. Both
films won National Awards but both were rejected by Doordarshan on the grounds
that they would create law and order problems. In the end, the author won the
cases in the High Court and the films were finally telecast by Doordarshan. No
law and order problems resulted and the telecasts were well received.
Son and Holy War (1995) was also shot during this period. It looks at the
question of gender along with the issue of religious violence. What triggered
this way of looking was the incident of Sati in Deorala and that fact that
thousands of young men were celebrating the death of Roop Kanwar. This led the
author to examine the male psyche behind violence and the idea that women were
property. It is common knowledge that very often sexual violence against women
accompanies communal riots. This may be because the "enemy's" women
are seen as his property and so, worthy of abduction or destruction.
first part of Father, Son and Holy War ("Trial by Fire") looks at the
problems faced by Hindu and Muslim women within their own religions. Part 2
(Hero Pharmacy) examines the construction of the values of "manhood".
As the film proceeds we become privy to the inner psyche of men and begin to
learn how men are socialized into believing that violence is desirable. The
film looks at the rhetoric of street sellers of aphrodisiac who create feelings
of male insecurity and impotence in their audience and then offer their cheap
medicine as a cure. It then looks at the rhetoric of communal politicians (both
Hindus and Muslims) and see that they too are appealing largely to their male
audiences, they too are taunting them for their impotence, but the medicine
they offer for the creation of "real men" is hatred against the other
the appellant issued a circular which stated that Doordarshan will not telecast
any 'A' certified adult or U/A feature film on it. On 28.2.1997, the respondent
handed over a copy of the U-matic Certificate of the documentary film to the
appellant. However, Doordarshan still refused to telecast the documentary film.
22.9.1998, the respondent no.1, filed a writ petition before the Bombay High
Court against the refusal of Doordarshan to telecast the documentary film,
which was disposed off by the Division Bench by directing Doordarshan to take a
decision on the application of respondent no.1 within a period of six weeks.
selection Committee was constituted on 10.8.1998 by the appellant to preview
the documentary film produced by respondent no.1. The selection Committee
observed that, "The documentary entitled 'Father, Son & Holy War'
depicts the rise of Hindu fundamentalism and male chauvinism without giving any
solution how it could be checked. The violence and hatred which is depicted in
the whole documentary will have an adverse effect on the minds of the viewers"
This decision of the Selection Committee was communicated to the respondents on
this the respondent no.1 approached Bombay High Court. A Division Bench of the
Bombay High Court allowed the writ and directed the appellant to telecast the
respondent no.1 documentary film "Father, son and the Holy War"
within a period of six weeks in the evening slot. This decision by the High
Court was challenged by the appellant by way of a Special Leave Petition in
this Court. This Court observed that, the Committee which was constituted to
consider the proposal of the respondent was not validly constituted as required
under the guidelines of Doordarshan and therefore the decision taken by the
Committee was without jurisdiction. This court went ahead to order on
12.12.2001 the constitution of a new Committee in accordance with para 5(ii) of
the Guidelines of Doordarshan to consider the proposal of the respondent within
three months of the constitution of such Committee.
Committee was duly constituted and on 6.8.2002, the committee viewed the
documentary film and was of the opinion that, "the film has a secular
message relevant to our times and our societyhowever, the film contains scenes
and speeches, which can influence negative passionsand the committee would like
a larger committee with representatives of religion and politics also to see
the film and form an opinion before it is open to public viewing." A
larger committee was constituted and viewed the documentary film. The said
committee on 5.6.2003 recommended the screening of this documentary film on Doordarshan
while observing that, "it may alienate sections of Indian society and
screening may lead to reactions by organized groups." On 11.7.2003, the Prasar
Bharati Board pre-viewed the documentary film and was of the opinion that the
documentary film contained scenes which could promote violence, its production
quality was unsatisfactory and its telecast would be violative of the policy of
the Doordarshan of not screening "A" certified movies. This decision
of Doordarshan was communicated to the respondent no.1 on 18.7.2003.
contempt petition was filed by respondent no.1 alleging the disobedience of the
order of the High Court dated 12.12.2001. The High Court disposed off the
petition by holding that the respondent was aggrieved of the decision of Prasar
Bharati Board, and it was open to him to challenge the same before an
respondent filed a writ petition in the Bombay High Court and directed Doordarshan
to exhibit the documentary film of the respondent no.1, "Father, son and
Holy War" on channel I or II within 12 weeks from the date of the judgment
on a convenient day and time as fixed by Doordarshan. It is against this
decision of the High Court of Bombay the Doordarshan has come on appeal to this
heard Mr. Rajeev Sharma, learned counsel appearing for the appellants and Mr. Prashant
Bhushan, learned counsel appearing for the respondent. We have viewed the
screening of the documentary film titled "Father, son and the Holy
War" which is the subject matter of the present case before us. We have
also carefully perused all the documents presented by both the parties before
Rajeev Sharma, learned counsel appearing for the Doordarshan submitted that the
decision not to telecast the film of the respondent is based on valid and
germane considerations and no film maker can claim that he has a vested right
that a film made by him must be telecast on Doordarshan. He submitted that as a
matter of policy the Doordarshan do not telecast films which are certified as
"A" or "UA". Admittedly Part one of the film in question
has been certified as "U" and Part two as "A". The policy
of Doordarshan of not telecasting "A" or "UA" films has not
been challenged by the respondent here. Therefore, the Doordarshan cannot be
directed to telecast the film contrary to its policy. Learned counsel also
submitted that the telecast of the film is likely to give rise to communal
violence and riots and that Doordarshan has reached the remote corners of the
country. It has a wide audience which mainly consists of illiterate and average
persons who will be largely affected due to screening of the film.
Bhushan, learned counsel appearing on behalf of the respondent submitted that
the refusal by Prasar bharti to telecast the film is a clear violation of the
respondent's fundamental right under Article 19(1)(a) of the Constitution. He
urged that the film carries a strong message for unity and secular India and there is no justification to
prevent its telecast on Doordarshan. It is submitted that the Doordarshan has a
policy of telecasting award winning films and documentaries and the action of
the Doordarshan in refusing to screen the film contrary to the said policy is
totally unfair, unjust and arbitrary. Learned counsel further submitted that
the Censor Board has approved the film and the guidelines of Doordarshan in
telecasting the film cannot be substantially different from the guidelines laid
down under the Cinematographic Act, 1952. In any event, according to the
learned counsel unless the said guidelines are read down they would be liable
to be strucked down as grossly violating the fundamental rights guaranteed by
Article 19(1)(a) of the Constitution.
view of the rival submissions, the following substantial questions of law arise
for adjudication by this Court.
Whether any film
producer has a right to insist that his film must be shown on Doordarshan?
Whether the High
Court was justified in directing the screening of the film certified as U/A.
Notwithstanding the fact as a matter of policy, Doordarshan does not telecast
policy of Doordarshan of not telecasting adult movies can be said to be violative
of Article 19(1)(a) of the Constitution of India as has been held by the High
Whether or not
it is open to the High Court to substitute its opinion for that of the
competent authority as to whether a film is fit for being telecast on a public
medium such as Doordarshan?
instant case, the documentary of the respondent has been cleared by the Central
Board for Film Certification, the Film Certification Board, which is a body of
experts was obviously not of the view that the film promotes communal violence,
otherwise, the film would not have been certified by the Board for public
exhibition. In view of this background, we are unable to appreciate the view
taken by the Prasarbharti Board.
film of the respondent no doubt deals with the communal violence. At the same
time, we also listen to a stirring speech made by a woman activist on a street
who exhorts people to "remember their neighbours" during communal
riots. The film contains a narrative of a muslim woman, a social worker who has
been raped by the communal murderers of her husband and that of a Hindu mill
worker whose children were killed in the bomb blast which occurred in the
aftermath of the communal riots. The attempt of the film maker is to portray
the miseries of the innocent victims of the communal riots. These sequences
convey an obvious message of communal harmony as an ordinary muslim slum
dweller is seen in the closing sequences of the film re-building the destroyed
home of his Hindu neighbour. The message of the filmmaker cannot be gathered by
viewing only certain portions of the film in isolation but one has to view it
as a whole. There are scenes of violence, social injustices but the film by no
stretch of imagination can be said to subscribe to the same. They are meant to
convey that such social evils are evil. There cannot be any apprehension that
it is likely to affect public order or it is likely to incite commission of an
offence. We are shocked at the observation of the Prasar Bharati Board that the
film is not suitable due to unsatisfactory production quality and that the film
has nothing specific to convey in public interest. The documentary was given
two awards in 42nd National Film Festival of 1995 conducted by the Ministry of
Information and Broadcasting, Government of India as Best Investigative Film
and Best film on social issues. It is, therefore, highly irrational and
incorrect to say that the documentary which was selected as best investigative
film and best film on social issues promote violence and its production quality
was unsatisfactory and that the film has no specific message to convey. The
documentary has won several awards in the International film festivals.
However, the Prasar Bharati Board strangely comments that the film had nothing
specific to convey in public interest. This view of the Prasar Bharati is in
contrast with the opinion expressed by the two committees constituted by the
appellants. The first committee held that the film had a secular message
relevant to our times and our society and it was a critique of the current
concept of masculinity and the violence it legitimises. The second committee
said that it was a very good film and must be shown. Ordinarily the decision of
the selection committee in all cases shall be final as per para 5(viii) of the
guidelines laid down by the Ministry of Information and Broadcasting for
telecasting films. However, it appears that the appellants were bent upon
rejecting the film and the decision of the committee was overruled by the Prasar
Bharati Board under the pretext that the guidelines prohibit Doordarshan from
exhibiting any film which is granted 'A' certificate and since part II i.e.
Hero Pharmacy has been granted 'A' certificate telecast of the said film is not
permitted under the guidelines framed by the Ministry of Information and
instant case, the guidelines relied upon by the Doordarshan are not even framed
under the Cinematograph Act but they are merely internal guidelines for the
guidance of the officials of the Doordarshan. Therefore, in our view, it would
not be proper to deny telecast of an award winning documentary merely on the
ground that part II of the said documentary is certified as "A" by
the Censor Board. In our view, a documentary cannot be denied exhibition on Doordarshan
simply on account of it's "A" certification or "UA"
certification. Mr. Rajeev Sharma made an attempt to object to certain scenes in
the documentary especially one scene where a person is seen selling aphrodiscies
on the road and while doing so is making certain remarks on the sexuality of
indicated in paragraphs supra, a film must be judged from an average, healthy
and common sense point of view. If the said yardstick is applied and the film
is judged in its entirety and keeping in view the manner in which the filmmaker
has handled the theme, it is impossible to agree that those scenes are offended
by vulgarity and obscenity. It is interesting to note that these objections
were not even raised by any of the committees constituted for the purpose of
assessing the film.
the most controversial issues is balancing the need to protect society against
the potential harm that may flow from obscene material, and the need to ensure
respect for freedom of expression and to preserve a free flow of information
and idea. The Constitution guarantees freedom of expression but in Article
19(2) it also makes it clear that the State may impose reasonable restriction
in the interest of public decency and morality.
crucial question therefore, is, 'what is obscenity?' The law relating to
obscenity is laid down in Sec.292 of the Indian Penal Code, which came about,
by Act 36 of 1969.
the present sec.292 and sec.293 of the Indian Penal Code, there is a danger of
publication meant for public good or for bona fide purpose of science,
literature, art or any other branch of learning being declared as obscene
literature as there is no specific provision in the act for exempting them from
operations of those sections.
present provision is so vague that it becomes difficult to apply it. The
purposeful omission of the definition of obscenity has led to attack of Section
292 of the Indian penal Code as being too vague to qualify as a penal
provision. It is quite unclear what the provisions mean. This unacceptably
large 'grey area', common in laws restricting sexual material, would appear to
result not from a lack of capacity or effort on the part of drafters or
Indian Penal Code on obscenity grew out of the English Law, which made court
the guardian of public morals. It is important that where bodies exercise
discretion, which may interfere in the enjoyment of constitutional rights, that
discretion must be subject to adequate law. The effect of provisions granting
broad discretionary regulatory powers is unforeseeable and they are open to
Bose & Anr v. Amal Mitra & Anr (1985) 4 SCC 284 it was observed by this
Court: "The concept of obscenity is moulded to a very great extent by the
social outlook of the people who are generally expected to read the book. It is
beyond dispute that the concept of obscenity usually differs from country to
country depending on the standards of morality of contemporary society in
different countries. In our opinion, in judging the question of obscenity, the
Judge in the first place should try to place himself in the position of the
author and from the viewpoint of the author.
judge should thereafter place himself in the position of a reader of every age
group in whose hands the book is likely to fall and should try to appreciate
what kind of possible influence the book is likely to have in the minds of the
judge should thereafter apply his judicial mind dispassionately to decide
whether the book in question can be said to be obscene within the meaning of
Section 292, IPC by an objective assessment of the book as a whole and also of
the passages complained of as obscene separately." This is one of the few
liberal judgments the courts have given. The point to worry about is the power
given to the judge to decide what he/she thinks is obscene. This essentially
deposits on the Supreme Court of India, the responsibility to define obscenity
and classify matters coming on media as obscene or otherwise. This Court has
time and again adopted the test of obscenity laid down by Cockburn CJ. The test
of obscenity is, 'whether the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences, and
in whose hands a publication in media of this sort may fall.' Interestingly,
this test of obscenity, which was laid down in the Hicklin case in 1869, is the
only test in India to determine obscenity.
Encyclopedia definition of obscenity states, 'By English law it is an
indictable misdemeanor to show an obscene exhibition or to publish any obscene
matter, whether it be writing or by pictures, effigy or otherwise.' The precise
meaning of "obscene" is, however, decidedly ambiguous. It has been
defined as something offensive to modesty or decency, or expressing or
suggesting unchaste or lustful ideas or being impure, indecent or lewd".
United States, obscene material is any material or performance, if: the average
person applying contemporary community standards would find that the subject
matter taken as a whole appeals to the prurient interest; the subject matter
depicts or describes in a patently offensive way, sexual conduct of a type
described in this section; and the subject matter, taken as a whole, lacks
serious literary, artistic, political, educational or scientific value.
one can observe that, the basic guidelines for the tier of fact must be:
the average person, applying contemporary community standards" would find
that the work, taken as a whole, appeals to the prurient interest.;
whether the work
depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and
work, taken as a whole, lacks serious literary, artistic political, or
Constitution of India guarantees everyone the right to freedom of expression. India is also a party to the
International Covenant on Civil and Political Rights and therefore bound to
respect the right to freedom of expression guaranteed by Article 19 thereof,
have the right to hold opinions without interference.
have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds regardless of
frontiers, either orally, in writing or in print, in form of art, or through
any other media of his choice.
right guaranteed by the Indian constitution is subject to various restrictions.
Like, respect of the rights or reputation of others; protection of national
security or of public order, or of public health or morals etc.
catchword here is 'reasonable restriction' which corresponds to the societal
norms of decency. In the present matter, the documentary film Father, Son and
Holy War depicts social vices that are eating into the very foundation of our
Constitutional. Communal riots, caste and class issues and violence against
women are issues that require every citizen's attention for a feasible
solution. Only the citizens especially the youth of our Nation who are
correctly informed can arrive at a correct solution. This documentary film in
our considered opinion showcases a real picture of crime and violence against women
and members of various religious groups perpetrated by politically motivated
leaders for political, social and personal gains.
film so far as our opinion goes does not violate any Constitutional provision
nor will create any law and order problems as the Doordarshan fears. This movie
falls well within the limits prescribed by our Constitution and does not appeal
to the prurient interests in an average person, applying contemporary community
standards while taking the work as a whole, the work is not patently offensive
and does not proceed to deprave and corrupt any average Indian citizen's mind.
addition we are emphasizing here on the fact that many Committees have screened
this documentary film including a committee set up by the appellants themselves
involving media experts, representatives of various religions and politics, who
have opined that, "It is a very good film and must be shown. It may
alienate sections of Indian society and screening may lead to reactions by
organized groups. In the unanimous view of the committee that protest is an
important part of Indian democracy and was a part of its fight for
independence, which is also a compelling reason for the film to be shown.
Keeping these in mind the committee recommends that the screening of the film
be preceded by a discussion in which alternative views are given by persons
with different views." As we see, only Doordarshan has an opposition with
airing the documentary film stating policy related difficulties.
this we are of the view that, since the Central Board of Film Certification has
already cleared the documentary film in question by award of U/A certificate,
the policy of Doordarshan of non-telecast of 'A' certified films will not stand
on the way of this film being aired. A blanket ban as this one will be in
violation of Article 19(2) of the Constitution which guarantees right of a
citizen to express himself/herself. The Supreme Court has clarified on this
regard way back in 1970, in the case of K.A. Abbas vs The Union of India & Anr,
(1970) 2 SCC 780 where this Court held that, "Sex and obscenity are not
always synonymous and it is wrong to classify sex as essentially obscene or
even indecent or immoral." In yet another case of Ramesh vs. Union of
India, (1988 (1) SCC 668) this court has observed that, "that the effect
of the words must be judged from the standards of reasonable, strong minded,
firm and courageous men, and not those of weak and vacillating minds, nor of
those who scent danger in every hostile point of view. This, in our opinion, is
the correct approach in judging the effect of exhibition of a film or of
reading a book. It is the standard of ordinary reasonable man or as they say in
English law "the man on the top of Claapham omnibus." Hence, in our
view, the correct approach to be taken here is to look at the documentary film
as a whole and not in bits, as any message that is purported to be conveyed by
way of a film cannot be conveyed just by watching certain bits of the film. In
the present situation the documentary film is seeking to portray certain evils
prevalent in our society and is not seeking to cater to the prurient interests
in any person.
we have no hesitation in saying that this documentary film if judged in its
entirety has a theme and message to convey and the view taken by the appellants
that the film is not suitable for telecast is erroneous.
this regard, the guidelines issued by the Central Government to evaluate films
gain importance and can be referred to. Clause 3 of the Guidelines reads as
3: The Board of Film Certification shall also ensure that the film:
is judged in its
entirety from the point of the overall impact; and
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." It was held in Bobby Art
International & Ors v Om Pal Singh Hoon & Ors (1996) 4 SCC 1, K A Abbas
(Supra) that a film was required to be viewed as a whole, and in the context of
the message that the filmmaker desired to communicate.
this film too, scenes must be seen in the context of the message of
exploitation of women through insecurities created in men and the film must be
evaluated in its entirety.
of India v Prof. Manubhai D. Shah with UOI v Cinemart Foundation (1992) 3 SCC
637, it was held that merely because a film was critical of the State
Government, DD could not deny selection and publication of the film. This film
was an award winning film about the Bhopal Gas Tragedy. Likewise, in S.Rangarajan
v. P. Jagjivan Ram & Ors (1989) 2 SCC 574, it has been observed that
Censors should not have an orthodox or conservative outlook, but must be
responsive to change and must go with the current climate. The state cannot
prevent open discussion, however hateful to its policies. This was about a film
that criticized the existing reservation policy and proposed an alternative
system based on economic deprivation.
also are aware that the documentary film made by respondent no.1 has won many
National and International awards. The documentary film won National Awards in
two categories viz "Best Investigative Film" and "Best Film on
Social Issues" in the 42nd National Film Festival 1995, conducted by the
Ministry of Information and Broadcasting.
documentary film also won Special Jury Award in Israel, Japan and Canada. Keeping these facts in view we find it absurd that a
documentary film that has won the National award is facing problems for it
being screened on the National Television.
opinion, the respondent has a right to convey his perception on the oppression
of women, flawed understanding of manhood and evils of communal violence
through the documentary film produced by him. As already noticed, this film has
won awards for best investigative film and best film on social issues at the
national level. The documentary film has won several awards at the
international level as well. The freedom of expression, which is legitimate and
constitutionally protected, cannot be held to ransom on a mere fall of a hat.
film in its entirety has a serious message to convey and is relevant in the
present context. Doordarshan being a State controlled agency funded by public
funds could not have denied access to screen the respondent's documentary
except on specified valid grounds.
refusal of the appellants to telecast the film in the current case in the face
of unanimous recommendations by their own Committees set up in accordance to
the direction of this Court is an issue to be addressed apart. The High Court
of Bombay has not substituted its discretion for that of the authorities. On
the contrary, the High Court has ruled that when the decision making process
has itself resulted in the recommendations to telecast; it is not open to the Doordarshan
to find other means just to circumvent this recommendation. The High Court has
only corrected the failure of Doordarshan to follow through with their own
decision making process on the pretext of a Circular which being non-statutory
cannot be used to limit right of expression. Besides the Circular, in terms,
applies only to feature films and not to documentaries. Before ruling thus, the
High Court viewed the film for itself which is a process followed innumerable
times before even by this Court in cases concerning the official media to
satisfy itself the recommendations of the Expert Committee was not patently
absurd. Thus, it is not a case where the High Court has substituted its
judgment for that of the decision-making authority but one where the decision
made by due process has been upheld by the High Court. In our view, the Doordarshan
being a National Channel controls airwaves, which are public property. The right
of the people to be informed calls for channelizing and streamlining Doordarshan's
control over the national telecast media vehicle.
also are of the view that, Doordarshan all through the present matter has been
displaying a sad reluctance in telecasting this film, which was made almost ten
years ago. We can trace a history of Doordarshan not telecasting many films in
spite of them being award winning films at the national and international
level, this can be seen in the case of films like "In Memory of
Friends", "Ram ke Naam" etc. In addition an interesting
observation that can be arrived is that Doordarshan has been finding flimsy
excuses time and again as clear from the facts in not telecasting the
documentary film in question every time the film was sought to be aired either
at the instance of the respondent or due to the orders of the court. This in
our view in highly irrational and is blatant violation of the right guaranteed
under Article 19(1)(a) of the Constitution. This behavior of Doordarshan would
justify us in stating that Doordarshan is being dictated by rules of malafides
and arbitrariness in taking decisions with regard to In light of the above, the
instant appeal at the instance of Doordarshan is devoid of any merits. Thus,
the impugned judgment deserves to be upheld and sustained by this Court.
result, the appeal is dismissed and the orders passed by the learned Judges of
the Division Bench are affirmed. However, there will be no order as to costs.
appellant-Doordarshan is directed to exhibit the entire documentary film of the
respondent Father, Son and Holy War on Channel No. 1 or 2 within 8 weeks from
today on such convenient date and time as may be fixed by Doordarshan.