K. A. Abbas Vs. The Union of India
& ANR [1970] INSC 201 (24 September 1970)
24/09/1970 HIDAYATULLAH, M.
(CJ) HIDAYATULLAH, M. (CJ) SHELAT, J.M.
MITTER, G.K.
VAIDYIALINGAM, C.A.
RAY, A.N.
CITATION: 1971 AIR 481 1971 SCR (2) 446 1970
SCC (2) 780
CITATOR INFO:
RF 1973 SC1461 (1709) R 1980 SC 605 (7) RF
1988 SC 775 (14,21)
ACT:
Constitution of India Article 19(1) (a) and
(2)-Precensorship of films-If unconstitutional-Cinematograph Act, 1952, s.
5-B-Provisions of-Directions under s. 5-B(2)-If vague and therefore
unconstitutional.
HEADNOTE:
The petitioner made a documentary film called
"A Tale of Four Cities" which attempted to portray the contrast
between the life of the rich and the poor in the four principal cities of thecountry.
The film included certain shots of the red light district in Bombay. Although
the petitioner applied to the Board of Film Censors for a `U' Certificate for
unrestricted exhibition of the film, he was granted a certificate only for
exhibition restricted to adults. On an appeal made to it by the petitioner, the
Central Government issued a direction on July 3, 1969 that a `u' Certificate
may be granted provided certain specified cuts were made in the film. The
petitioner thereafter field the present petition seeking a declaration that the
provisions of Part 11 of the Cinematograph Act, 1952, together with the rules
prescribed by the Central Government on February 6, 1960 in the exercise of its
powers under s. 5-B of the Act were unconstitutional and void; he further
prayed that the direction dated July 3, 1969 should be quashed. The petitioner
claimed that his fundamental tight of free speech and expression was denied by
the order of the Central Government and that he was entitled to a 'U'
Certificate for the film as of right.
At the hearing of the petition the Central
Government indicated it had ,decided to grant a 'U' Certificate to the
petitioner's film without the cuts previously ordered. The petitioner then
applied for amendment of the petition so as toenable him to challenge
pre-censorship as offensive to freedom of speechand expression and
alternatively the provisions of the Act and the Rules orders and directions
under the Act as vague, arbitrary and indefinite.
The Court allowed the amendment holding the
petitioner was right in contending that a person who invests capital in
promoting or producing a film must have clear guidance in advance in the matter
of censorship of films even if the law of pre-censorship be not violative of
the fundamental right.
It was contended inter alia on behalf of the
petitioner (a) that pre-censorship itself violated the right to freedom of speech
and expression; and (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.
HELD : (i) Censorship of films including
prior restraint is justified under the Constitution.
It has been almost universally recognised
that the treatment of motion ,pictures must be different from that of other
forms of art and expression.
447 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, 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 mature men and women. They also remember the
action in the picture and try to emulate or/ imitate what they have seen.
Therefore, classification of films into two categories of 'U' films and 'A'
films is a reasonable classification. It is also for this reason that motion
pictures must be regarded differently from other forms of speech and
expression. A person reading a book or other writing or bearing a speech or
viewing a painting or sculpture is not so deeply stirred as by seeing a motion
picture. Therefore the treatment of the latter on a different footing is also a
valid classification. [458 G] (ii)Section 5-B authorises the Central Government
to issue such directions 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. it cannot be said that this Section
has not indicated any guidance to the Central Government. 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.
A law cannot be declared void because it is
opposed to the spirit supposed to pervade the Constitution but not expressed in
words. However it cannot be said as an absolute principle that no law will be
considered bad for sheer vagueness. The real rule is that if a law is vague or
appears to be so, the court must try to construe it, as far as may be, and language
permitting, the construction sought to be placed on it, must be in accordance
with the intention of the legislature. Thus if the law is open to diverse
construction, that construction which accords best with the intention of the
legislature and advances the purpose of legislation, is to be preferred. Where
however the law admits of Do such construction and the persons applying it are
in a boundless sea of uncertainty and the law prima facie takes away a
guaranteed freedom, the law must be held to offend the Constitution, This is
not application of the doctrine of due process. The invalidity arises from the
probability of the misuse of the law to the detriment of the individual. If
possible, the Court instead of striking down the law may itself draw the line
of demarcation where possible but this effort should be sparingly made and only
in the clearest of cases. [470 G] Judging the directions, 'rules and
regulations from this angle, it must be held that there are general principles
regarding the films as a whole and specific instances of what may be considered
as offending the public interest as disclosed in the clause that follows the
enunciation of the freedoms in Art. 19(1) (a). The general principles which are
stated in the directions given under s. 5-B(2) 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. [471 B] 448 It is clear that expressions like 'seduction', 'immoral
traffic in women', soliciting. prostitution or, procuration', 'indelicate
sexual situation' and scenes suggestive of immorality', 'traffic and use of
drugs', 'class hatred', 'blackmail associated with immorality' are within the
understanding of the average men and more so of persons who are likely to be
the panel for purposes of censorship. Any more definiteness is not only not
expected but is not possible. [471 G] Municipal Committee Amritsar and anr. v.
The State of Rajasthan, A.I.R. 1960 S.C. 1100; explained.
Claude C. Caually v. General Construction
Co.,,(1926) 70 L.Ed. 332; A. K. Gopalan v. The State of Madras, [1950] S.C.R.
88 and State of Madhya Pradesh and Anr. v. Baldeo Prasad, [1961] 1 S.C.R. 970
at 979; referred to.
(iii)A real flaw in the scheme of the
directions under s. 5-B(2) is a total absence of any direction which would tend
to preserve art and promote it. The artistic appeal or presentation of an
episode robs it of its vulgarity and harm and this appears to be completely
forgotten. Artistic as well as inartistic presentation are treated alike and
also what may be socially good and useful and what may not. In Ranjit D.
Udeshi's case this Court laid down certain principles on which the obscenity of
a book was to be considered with a view to deciding whether the book should be
allowed to circulate or withdrawn. Those principles apply miutatis mutandis to
films and also other areas besides obscenity. Although it could not be held
that the directions are defective in so far as they go, directions to emphasize
the importance of art to a value judgment by the censors need to be included.
[471 H] U.S., U.K. and other case law considered.
ORIGINAL JURISDICTION: Writ Petition No. 491
of 1969.
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
R.K. Garg, D. P. Singh, S. C. Agrawala, R. K.
Jain, V. J.
Francis and S. Chakravarti, for the
petitioner.
Niren De, Attorney-General, Jagadish Swarup,
SolicitorGeneral, J. M. Mukhi, R. N. Sachthey and B. D. Sharma, for the
respondents.
The Judgment of the Court was delivered by
Hidayatulla, C.J. This petition seeks a declaration against the Union of India
and the Chairman Central Board of Film Censors, that the provisions of Part 11
of the Cinematograph Act 1952 together with the rules prescribed by the Central
Government, February 6, 1960, in the purported exercise of its powers under S.
5-B of the Act are unconstitutional and void. As a consequence the petitioner
asks for a writ of mandamus Or any other appropriate writ, direction or order
quashing the direction contained in a letter (Annexure X) dated July 3, 1969
for deletion of certain shots from a documentary film entitled 'A Tale of Four
Cities' produced by him for unrestricted public exhibition.
449 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 prosperity of a few, and shanties, huts and
slums--evidence of poverty of the masses. These scenes alternate and in between
are other scenes showing sweating labourers working to build the former and those
showing the squalid private life of these labourers. Some shots mix people
riding in lush motor cars with rickshaw and handcart pullers of Calcutta and
Madras. In one scene a fat and prosperous customer is shown riding a rickshaw
which a decrepit man pulls, sweating and panting hard. In a contrasting, scene
the same rickshaw puller is shown sitting in the rickshaw, pulled by his former
customer. This scene is the epitomisation of the theme of the film and on view
are the statutes of the leaders of Indian Freedom Movement looking impotently
from their high pedestals in front of palatial buildings, on the poverty of the
masses. On the bouleverds the rich drive past in limousines while the poor pull
rickshaws or handcarts or stumble along.
There is included also a scanning shot of a
very short duration, much blurred by the movement of the photographer's camera,
in which the red light district of Bombay is shown with the inmates of the
brothels waiting at the doors or windows. Some of them wear abbreviated skirts
showing bare legs up to the knees and sometimes a short way above them.
This scene was perhaps shot from a moving car
because the picture is unsteady on the screen and under exposed.
Sometimes the inmates, becoming aware of the
photographer, quickly withdraw themselves. The whole scene barely lasts a
minute. Then we see one of the inmates shutting a window and afterwards we see
the hands of a woman holding some currency notes and a male hand plucking away
most of them leaving only a very few in the hands of the female. The two actors
are not shown.
450 The suggestion in the first. scene is
that a customer is being entertained behind closed shutters and in the next
sequence that the amount received is being shared between the pimp and the
prostitute, the former taking almost the whole of the money. The sequence
continues and for the first time the woman who shut the window is again seen.
She sits at the dressing table, combs her hair, glances at two love-birds in a
cage and looks around the room as if it were a cage. Then she goes behind a
screen and emerges in other clothes and prepares for bed. She sleeps and dreams
of her life before she took the present 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 decision and the petitioner could'
appeal within 30 days to the Central Government. The petitioner appealed the
very next day. On July 3, 1969, the Central Government decided to give a 'U'
certificate provided the following cuts were made in the film:
"Shorten the scene of woman in the red
light district, deleting specially the shot showing the closing of the window
by the lady, the suggestive shots of bare knees and the passing of the currency
notes." Dir. IC(iii)(b)(c);
IV".
The mystery of the code numbers at the end
was explained by a letter on July 23, 1969 to mean this :
"1. It is not desirable that a film
shall be certified as suitable for public exhibition, either unrestricted or
restricted to adults which 45 1 C(iii) (b) deals with the relations between the
sexes in such a manner as to depict immoral traffic in women and soliciting,
prostitution or procuration.
IV.It is undesirable that a certificate for
unrestricted public exhibition shall be granted in respect of a film depicting
a story, or containing incidents unsuitable for young persons." The
petitioner then filed this petition claiming that his fundamental right of free
speech and expression was denied by the order of the Central Government. He
claimed a 'U' certificate for the film as of right.
Before the hearing commenced the film was
specially screened for us. The lawyers of both sides (including the Attorney
General) and the petitioner were also present. The case was then set down for
hearing. The Solicitor General (who had not viewed the film) appeared at the
hearing. We found it difficult to question him about the film and at our
suggestion the Attorney General appeared but stated that Government had decided
to grant a 'U' certificate, to the film without the cuts previously ordered.The
petitioner then asked to be allowed to amend the petition so as to be able to
challenge pre,-censorship itself as offensive to freedom of speech and
expression and alternatively the provisions of the Act and the rules, orders
and directions under the Act, as vague, arbitrary and indefinite. We allowed
the application for amendment, for the petitioner was right in contending that
a person who invests his capital in promoting or producing a film must have
clear guidance in advance in the matter of censorship of films even if the law
of pre-censorship be not 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 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 conceded (c) and (d)
and stated that Government would set on foot legislation to effectuate them at the
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 its Secretaries in this sensitive field involving the
fundamental right of speech and expression. Experts sitting as a Tribunal and
deciding matters quasi-judicially inspire more confidence than a Secretary and
therefore it is better that the appeal should lie to a court or tribunal.
This brings us to the remaining two
questions. We take up first for consideration : whether pre-censorship by
itself offends the freedom of speech and expression. Article 19(1)(a) and (2)
of the Constitution contain the guarantee of the night and the restraints that
may be put upon that right by a law to be made by Parliament. They may be read
here:
"19. Protection of certain rights
regarding freedom of speech, etc. (1) All citizens shall have the right--(a) to
freedom of speech and expression;
(2)Nothing in sub-clause (a) of clause (1)
shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in 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 in
relation to contempt of court, defamation or incitement to an offence."
The argument is that the freedom is absolute and precensorship is not
permissible under the Constitution. It is submitted that precensorship is
inconsistent with the right guaranteed. Now it is clear that some restraint is
contemplated by the second clause and in the matter of censorship only two ways
are open to Parliament to impose restrictions. One is to Jay down in advance
the standards for the observance of film producers and then to test each film
produced against those standards by a perview of the film. The other is to let
the producer observe those standards and make the infraction an offence and
punish a Producer who does not keep within the standards. The petitioner claims
that the former offends 453 the guaranteed freedom but reluctantly concedes the
latter and relies upon the minority view expressed in the United States Supreme
Court from time to time. The petitioner reinforces this argument by contending
that there are other forms of speech and expression besides the films and none
of them is subject to any prior restraint in the form of precensorship and
claims equality of treatment 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 one of strictest in the world:
See Film Censors and the Law by Neville March
Hunilings p. 227 and Filmrecht: ein Handbuch of Berthold and von
Hartleib(1957)p.215 quoted by Hunnings ln 1966 Mr.Raj Bahadur (who succeeded
Mrs. Indira Gandhi as Minister for Information and Broadcasting) said that
Government would 'continue a liberal censorship' and was considering certain
expert opinion on the subject. He also suggested to the film industry that it
should formulate a code which would be the best from all standards so that
Government may be guided by it in formulating directives to the censors'; See
Journal of Film Industry, February 25, 1966 also quoted by Hunnings at page 18
of his book. This suggestion came to nothing for obvious reasons. Film industry
in India is not even oligopolistic in character and it is useless to expect it
to classify films according to their suitability, as is done in the United
States by the motion picture Association of America(MPAA) founded in October
1968. There the film industry is controlled by eight major producers and
private control of film-making is possible with the assistance of the National
Association of Theatre Owners and Film Importers and Distributors of America.
Having no such organisation for private censorship or even a private body like
the British Board of Film Censors in England, the task must be done by
Government if censorship is at all to be imposed. Films began' to be 436 Sup
Cl/71 exhibited in India at the turn of the last century and film censorship
took birth in 1918 when the Cinematograph Act, 1918 (2 of 1918) was passed. Two
matters alone were then dealt with : (a) the licensing of cinema houses, and
(b) the certifying of film for public exhibition. The censors had a wide
discretion and no standards for their action were indicated. Boards of Film
Censors came into existence in the three Presidency towns and Rangoon. The
Bombay Board drew up some institutions for Inspectors of Films and it copied
the 43 rules formulated by T. P. O'Connor in.
England. These are more or less continued
even today.
We do not wish to trace here the history of
the development of film censorship in India. That task has been admirably
performed by the Khosla Committee. Legislation in the shape of amendments of
the Act of 1918 and a Production Code were the highlights of the progress. In
1952 a fresh consolidating 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 in ss. 5B and _5C respectively. These sections may be.
read here "5B. principles for guidance in certifying films.
(1)Afilm 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 455 States, public
order, decency or morality, or involves defamation or contempt of court or is
likely to 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." "5C. Appeals.
Any person applying for a certificate in
respect of a film who is aggrieved by any order of the Board-(a) refusing to
grant a certificate; or (b) granting only an "A" certificate; or (c)
directing the applicant to carry out any excisions or modifications;
may, within thirty days from the date of such
order, appeal to the Central Government, and the Central Government may, after
such inquiry into the matter as it considers necessary and after giving the
appellant an opportunity for representing his views in the matter, make such
order in relation thereto as it thinks fit." By s. 6, the Central
Government has reserved a general revising power which may be exercised during
the pendency of a film before the Board and even after it is certified.
Under the, latter part of this power the
Central Government may cancel a certificate already granted or change the 'U'
certificate into an 'A' certificate or may suspend for 2 months the exhibition
of any film.
The above is the general scheme of the
legislation on the subject omitting allied matters in which we are not
interested in this case. It will be noticed that S. 5B(1) really reproduces
clause (2) of Art. 19 as it was before its amendment by the First Amendment.
This fact has led to an argument which we shall notice presently. The second
subsection of S. 5B enables the Central Government to state the principles to
guide the censoring authority, by issuing directions. In furtherance of this
power the Central Government has given directions to the Board of Film Censors.
They are divided into 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 thrownon 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 delineation of crime, B with that of vice or
immorality, C with that of relations between sexes, D with the exhibition of
human form, E with the bringing into contempt of armed forces, or the public
authorities entrusted with the administration of law and order and F with the
protection of the susceptibilities of foreign nations and religious
communities, with fomenting social unrest or discontent to such an extent as to
incite people to crime and promoting disorder, violence, a breach of the law
'or disaffection or resistance to Government.
Clauses E and F are further explained by
stating what is unsuitable and what is objectionable in relation to the topics
under those clauses.
Section 11 then enumerates subjects which may
be objectionable in a context in which either they amount to indecency,
immorality, illegality or incitement to commit a breach of the law.
Section III then provides "It is not
proposed that certification of a film should be refused altogether, or that it
should be certified as suitable for adult audiences only, where the deletion of
a part or parts, will render it suitable for unrestricted public exhibition or
for exhibition restricted to adults, and such deletion is made, unless the film
is such as to deprave the majority of the audience and even excisions will not
cure the defects." Section IV deals with the protection of young persons
and enjoins refusal of a certificate for unrestricted public exhibition in
respect of a film depicting a story or containing incidents unsuitable for
young persons:
Emphasis in this connection is laid in
particular upon457 (i)anything which may strike terror in a young person, e.g.,
scenes depicting ghosts, brutality, mutilations, torture, cruelty, etc.;
(ii)anything tending to disrupt domestic
harmony or the confidence of a child in its parents, eg. scenes depicting
parents quarrelling violently, or one of them striking the other, or one or
both of them behaving immorally;
(iii)anything tending to make a person of
tender years insensitive to cruelty to others or to animals." In dealing
with crime under section I clause A, the glorification or extenuation of crime,
depicting the modus operandi of criminals, enlisting admiration or sympathy for
smiminals, holding up to contempt the forces of law against crime etc. are
indicated, as making the film unsuitable for exhibition. In Clause 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, import unation 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 of war, exploitation of tragic incidents of
war, blackmail associated with immorality, intimate biological studies,
crippled limbs or malformations, gross travesties of administration of justice
I and defamation of any living person.
We have covered almost the entire range of
instructions. It will be noticed that the control is both thematic and
episodic. If the theme offends the rules and either with or without excision of
the offending parts, the film remains still offensive, the certificate is
refused. if the excisions can remove its offensiveness, the film is granted a
certificate. Certifiable films are classified according to their suitability
for adults or-young people. This is the essential working of Censorship of
motion pictures in our country.
458 The first question is whether the films
need censorship at all' Pre-censorship is but an aspect of censorship and bears
the same relationship in quality to the material as censorship after the motion
picture has had a run. The only difference is one of the stage at which the
State interposes its regulations between the individual and his freedom.
Beyond this there is no vital difference.
That censorship is prevalent all the world over in some form or other and
pre-censorship also plays a part where motion pictures are involved, shows the
desirability of censorship in this field. The Khosla Committee has given a
description generally of the regulations for censorship (including precensorship)
obtaining in other countries and Hunning's book deals with these topics in
detail separately for each country. The method changes, the rules 'are
different and censorship is more strict in some Dlaces than in others, but
censorship is universal. Indeed the petitioner himself pronounced strongly in
favour of it in a paper entitled 'Creative Expression' written by him. This is
what he said:
"But even if we believe that a novelist
or a painter or a musician should be free to write, paint and compose music
without the interference of the State machinery, I doubt if anyone will
advocate the same freedom to be extended to the commercial exploitation of a
powerful medium of expression and entertainment like the cinema. One can
imagine the results if an unbridled commercial cinema is allowed to cater to
the lowest common denominator of popular taste, specially in a country which,
after two centuries 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 cinema gnates 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.
Therefore, classification of films into two
categories of 'U' films and 'A' films is a reasonable classification. It is
also for this reason that motion picture must be regarded differently from other
forms of speech and expression. A person reading a book or other writing or
hearing a speech or viewing a painting or sculpture is not so deeply stirred as
by seeing a motion picture. Therefore the treatment of the latter on a
different footing is also a valid classification.
The petitioner pressed for acceptance of the
minority views expressed from time to time in the Supreme Court of the United
States and it is, therefore, necessary to say a few words about censorship of
motion pictures in America and the impact of the First Amendment guaranteeing
freedom of speech and expression in that country. The leading cases in the
United States are really very few but they are followed in a very large number
of per curiam decisions in which, while concurring with the earlier opinion of
the Court, there is sometimes a restatement with a difference. As early as 1914
in Mutual Film Corpn. v. Industrial Commission of Ohio(1),Mr. Justice Me Kenna,
speaking for the full Court, said that legislative power is not delegated
unlawfully when a boardof censors is set up to examine and censor, as a
condition precedent to exhibition, motion picture films, to be publicly
exhibited and displayed, with a view to passing and approving only such of them
as are in the judgment of the board, moral, educational or amusing and
forbidding those that are not. Speaking of the criteria stated in general
words, it was said that general terms get "precision from the sense and
experience of men and become certain and useful guides in reasoning and
conduct". The first notice of change came in 1925 in Gitlow v. New
York(2), when it was said that censorship had to pass the scrutiny of the First
Amendment through the Fourteenth Amendment before speech and expression could
be abridged by State laws. To this, was added in 1919 the test of 'clear and
present danger' propounded by Justice Holmes as the only basis for curtailing
the freedom of speech and expression, see Shenck v. U.S.(3) and Justice
Brandeis in Whitney v. California (4) laid down three components of the test
(a)There must be a clear and present danger that speech would produce a
substantial evil that 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.
(1) (1915) 236 U. S. 230, (3) (1 919) 249 U.
S. 47.
(2) (1925) 268 U. S. 652.
(4) (1927) 274 U. S. 357.
460 .lm15 (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(1) immunity of
press from precensorship 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 Hampshire(2) the opinion that free speech was not absolute at all times
and in all circumstances, that there existed certain "well-defined and
narrowly limited classes of speech, the prevention and punishment of which had
never been thought to raise any constitutional problem".
This state of affairs Continued also in
respect of motion pictures and the regulation of their public exhibition.
Real attention was focused on censorship
after 1951. The effect of World War 11 on American society was the real cause
because peoples notions of right and wrong from a social point of view
drastically altered. Added to this were the inroads made by Justices Douglas
and Black in Dennis v. U.S. (3) in the previously accepted propositions which
according to them made the First Amendment no more than an admonition to
Congress. In Beauharnais v.
Illinois(4) Justice Douglas claimed for the
freedom of speech, a preferred position because the provision was in absolute
terms, an opinion which has since not been shared by the majority of the Court.
In 1951 there came the leading decision
Burstyn v. Wilson(,) This case firmly established that motion pictures were
within the protection of the First Amendment through the Fourteenth. While
recognising that there was no absolute freedom to exhibit every motion picture
of every kind at all times and places, and that constitutional protection even
against a prior restraint was not absolutely unlimited, limitation was said to
be only in exceptional (1) (1931) 283 U.S. 697 (3) (1951) 341 U. S. 494.
(2) (1941) 315 U. S. 567.
(4) (1952) 343 U. S. 250.
(5) (1951) 343 U.S. 495.
461.
cases. It however laid down that censorship
on free speech and, expression was ordinarily to be condemned but the precise
rules. governing other methods,of expression were not necessarily applicable.
The application of the 14th Amendment has now
enabled the Court to interfere in all cases of state restrictions where
censorship fails to follow due process. The result has led to a serious
conflict in the accepted legal opinion. The Supreme Court has had to deal with
numerous cases in which censorship was questioned.
The divergence of opinion in recent years has
been very deep. Censorship of press, art and literature is on the verge of extinction,
except in the ever shrinking area of obscenity. In the field of censorship of
the motion picture there has been a tendency to apply the 'void for vagueness'
doctrine evolved under the due process clause. Thus regulations containing such
words as 'obscene, 'indecent', 'immoral', 'prejudicial to 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 unconstitutional.
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(2). In that three tests
were-laid down:
(a)that the dominant theme taken as a whole
appeals to prurient interests according to the contemporary standards of the
average man;
(b)that the motion picture is not saved by
any redeeming social value; and (c)that it is patently offensive because it is
opposed to contemporary standards.
(1) (1959) 360 U. S. 684.
(2) (1957) 354 U. S. 476.
3 6 2 'The Hicklin test in Regina v.
Hicklin(1) was not accepted.
Side by side procedural safeguards were also
considered. The leading case is Freedmen v.
Maryland(2) where the court listed the
following requirements for a valid film statute 1.The burden of proving that
the film is obscene rests on the censor.
2.Final restraint (denial of licence) may
only occur after judicial determination of the obscenity of the material.
3.The censor will either issue the license or
go into court himself for a restraining order.
4.There must be only a 'brief period' between
the censor's first consideration of film and final judicial determination. (As
summarized by Martin Shapiro Freedom of Speech; The Supreme Court and Judicial
Review).
These were further strengthened recently in
Teitel Film Corp. v Cusak(3) (a per curiam decision) by saying that a
non-criminal process which required the prior submission of a film to a censor
avoided constitutional infirmity only if censorship took place under procedural
safeguards. The censorship system should, therefore, have a time-limit'.
The censor must either pass the film or go to
,court to restrain the showing of the film and the court also must give a
prompt decision. A delay of 50-57 days was considered too much. The statute in
question there had meticulously laid down the time for each stage of
examination but had not fixed any time limit for prompt judicial determination
and this proved fatal The fight against censorship was finally lost in the
Times Film Corporation v. Chicago(4) but only by the slender majority of one
Chief Justice Warren and Justices Black, Douglas and Brennan dissented. The
views of these Judges were pressed upon us. Chief Justice Warren thought that
there ought to be first an exhibition ,of an allegedly 'obscene film' because
Government could not forbid the exhibition of a film in advance. Thus prior
restraint was said ;to be impermissible. Justice Douglas went further and said
that censorship of movies was unconstitutional.
Justice Clark, 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.
(1) L. R, [1868] 3 Q. B. 360. (2) (1965) 380
U. S. 51.
(3) 1968 390 U. S. 139. (4) (1961) 365 U.S.
4.3.
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(1)
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, standards for the Board
to follow. Justice Harlan, however, observed that the courts had not found any
more precise expressions and more could not be demanded from the legislature
than-could be said by the Court. However precision of regulation was to be the
touchstone of censorship and while admitting that censorship was admissible, it
was said that too wide a discretion should not be left to the censors.
Meanwhile in Jacobellis v. Ohio 2 it was held
that was laws could legitimately aim specifically at preventing distribution of
objectionable material to children and thus it approved of the system of
age-classification. The Interstate Circuit Inc. v. Dallas(1) and Ginsberg v.
New York(3) sat the seal on validity of' age classification as constitutionally
valid.
There are two cases which seem to lie outside
the mainstream. Recently in Stanley v. Georgia(4) the Court seems to have gone
back on the Roth case (supra) and held that the right to receive information
and ideas, regardless of their social worth, is also fundamental to society.
Another exception can only be understood on the basis of the recognition of the
needs of a permissive society. Thus Mishkin v. New York removes the test of the
average person by saying that if the material is designed for a deviant sexual
group, the material can only be censored if taken as a whole, it appeals to the
purient interest in sex of-the members of that group. This is known as the. Selective
audience obscenity test and even children are a special class. See Ginsbergv.
New (1)(1961) 390 U. S. 676. (2) (1964) 378 U. S. 184, (3) (1968) 390 U. S.
629. (4) (1969) 394 U. S.
(5) (1966) 383 U. S. 502.
464 York(1). On the whole, however, there is
in this last case a return to the Hicklin test in that obscenity is considered
even from isolated passages.
To summarize. The attitude of the Supreme
Court of the United States is not as uniform as one could wish. It may be taken
as settled that motion picture is considered a form of expression and entitled
to protection of First Amendment.
The view that it is only commercial and
business and, therefore, not entitled to the protection as was said in Mutual
Film Corpn. (2) is not now accepted. It is also settled that freedom of speech
and expression admits of extremely narrow restraints in cases of clear and
present danger, but included in the restraints are prior as well as subsequent
restraints. The censorship should be based on precise statement of what may not
be subject matter of filmmaking and 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 to 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 corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained
of embodied in it.
and the defence of public good is stated thus
"4. Defence of public good.
(1) (1968) 390 U. S. 629.
(3) (1965) 380 U S. 51.
(2) (1915) 236 U.S. 230.
465 (1 ) A person shall not be convicted of
an offence against section two of this Act, and an order for forfeiture shall
not be made under the foregoing section, if it is proved that publication of
the article in question is justified as being for the public good on the ground
that it is in the interests of science, literature, art or learning, or of
other objects of general concern.
(2)It is hereby declared that the opinion of
experts as to the literary, artistic, scientific or other merits of an article
may be admitted in any proceedings under this Act either to establish or to
negative the said ground." He contended that we must follow the above
provisions.
We may now consider the English practice. In
England there was little freedom of speech to start with. The Common Law made
no provision for it. The two constitutional documents the Petition of Right
(1628) and the Bill of Rights (1689)do not mention it. By the time of Queen
Elizabeth I presses were controlled through licences and although they were
granted, no book could be issued without the sanction of Government. The Star
Chamber tried several cases of censorship and it even continued in the days of
Cromwell.
Milton was the first to attack censorship in
his Areopagitica and that had profound effect on the freedom of speech. We find
quotations from his writings in the opinions of Chief Justice Warren and
Justice Dougles. Freedom of speech came to be recognised by slow stages and it
was Blackstone who wrote in his Commentaries (Book IV p.
1517)"The liberty of the Press is indeed
essential to the nature of a free State, but this consists in laying no
previous restraints upon publications." But censorship of theatres
continued and no theatre could be licensed or a play performed without the
sanction of the Lord Chamberlain. By the Theatres Act 1843 the Lord Chamberlain
was given statutory control over the theatres.
He could forbid the production of a play for
the preservation of good manners, decorum or the public peace.
There was ordinarily no censorship of the
press in England.
When cinematograph came into being the
Cinematograph Act 1909 was passed to control cinemas. It 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 reasonably
minded cinema audiences ? 3.What effect. would it have on the minds of children
? We have digressed into the practice of the United States and the United
Kingdom because analogies from these two countries were mainly relied upon by
the petitioner and they serve as a very appropriate back-ground from which to
begin discussion on the question of censorship and the extent to which it may
be carried.
To begin with our fundamental law allows
freedom of speech and expression to be restricted as clause (2) itself shows.
It was observed in Ranjit D. Udeshi v. State
of Maharashtra(1).
"Speaking in terms of the Constitution
it can hardly be claimed that obscenity which is offensive to modesty or
decency is within the constitutional protection given to free speech or
expression, because the article dealing with the right itself excludes it. That
cherished right on which our democracy rests is meant for the expression of
free opinions to change political or social conditions. or for the advancement
of human knowledge. This freedom is subject to reasonable restrictions which
may be thought necessary in the interest of the general public and one such is
the interest of public decency and morality.
Section 292, Indian Penal Code, manifestly
embodies such a restriction because the law against obscenity, of course,
correctly understood and applied, seeks no more than to promote public decency
and morality".
We adhere to this statement and indeed it is
applicable to the other spheres where control is tolerated under our
fundamental law. The argument that s. 5-B of the Cinematograph Act does
(1)(1965) 1 S.C.R. 65.
4 6 7 not reproduce the full effect of the
second clause of Art.
19 need not detain us. It appears that the
draftsman used a copy of the Constitution. as it was before the First Amendment
and fell into the error of copying the obsolete clause. 'That, however, does
not make any difference. The Constitution has to be read first and the section
next. The latter can neither take away nor add to what the Constitution has
said on the subject. The word `reasonable' is not to be found in s. 5-B but it
cannot mean that the restrictions can be unreasonable. No only the sense of the
matter but the existence of the constitutional provision in part materia must
have due share and reading the provisions of the Constitution we can approach
the problem without 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 ',this that censorship
of films, their classification according to age groups and their suitability
for unrestricted exhibition with or without excisions is regarded as a valid
exercise of power in the interests of public morality, decency etc. This is not
to be construed as necessarily offending the freedom of speech and expression.
This has, however, happened in the United States and therefore decisions, as
Justice Douglas said in his Tagore Law Lectures (1939), have the flavour of due
process rather than what was conceived as the _purpose of the First Amendment.
This is because social interest of the people override individual freedom. Whether
we regard the state as the paren patriae or as guardian and promoter of general
welfare, we have to concede, that these restraints on liberty may be justified
by their absolute necessity and clear purpose. Social interests take in not
only 468 the interests of the community but also individual interests which
,cannot be ignored. A balance has therefore to be struck between ,the rival
claims by reconciling them. The, larger interests of the community require the
formulation of policies and regulations to ,combat dishonesty, corruption,
gambling, vice and other things of immoral tendency and things which affect the
security of the, State and the preservation of public order and tranquillity.
As Ahrens said the, question calls for a good philosophical campass and strict
logical methods.
With this preliminary discussion we say that
censorship in India (and precensorship is not different in quality) has full
justification in the field of the exhibition of cinema films. We need not
generalize about other forms of speech and expression here for each such
fundamental right has a different content and importance. The censorship
imposed on the making and exhibition of films is in the interests of society.
If the regulations venture into something which goes beyond this legitimate
opening to restrictions, they can be questioned on the ground that a legitimate
,power is being abused. We hold, therefore, that censorship of films including
prior restraint is justified under our Constitution.
This brings us to the next questions : How
far can these restrictions go ? and how are they to be imposed ? This leads to
an examination of the provisions contained in s. 5B (2). That provision
authorises the Central government to issue such directions 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 moment be argued that this is insufficient to take away the
right of locomotion. Of course, every-thing may be done by legislation but it
is not necessary to do so 4 69 if the policy underlying regulations is clearly
indicated.
The Central Government's regulations are
there for consideration in the light of the guaranteed freedom and if they
offend substantially against that freedom, they may be struck down. But as they
stand they cannot be challenged on the ground that any recondite theory of law
making or a critical approach to the separation of powers is infringed.
We are accordingly of the opinion that s. 5-B
(2) cannot be challenged on this ground.
This brings us to the manner of the exercise
of control and restriction by the directions. Here the argument is that most of
the regulations are vague and further that they leave no scope for the exercise
of creative genius in the field of art. This poses the first question before us
whether the 'void for vagueness' doctrine is applicable.
Reliance in this connection is placed on
Municipal Committee Amritsar and anr. v. The State of Rajasthan(1). In that
case a Division Bench of this Court lays down that an Indian Act cannot be
declared invalid on the ground that it violates the due process clause or that
it is vague. Shah J, speaking for the Division Bench, observes:
"...... the rule that an Act of a
competent legislature may be 'struck down' by the courts on the ground of
vagueness is alien to our constitutional system. The Legislature of the State
of Punjab was competent to enact legislation in respect of 'fairs', vide Entry
28 of List II of the 7th Schedule to the Constitution. A law may be declared
invalid by the superior courts in India if the legislature has no power to
enact the law or that the law violates any of the fundamental rights guaranteed
in Part III of the Constitution or is inconsistent with any constitutional
provision, but not on the ground that it is vague." The learned Judge
refers to the practice of the Supreme Court of the United State in Claude C.
Caually v. General Construction Co.(2) where it was observed:
"A statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application violates
the first essential of due 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 (1) A.I.R. 1960 S.C. 1100.
3--436SupCI/71 (2) (1926) 70 L. Ed. 332.
47 0 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(1) 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 principles evolved by the Supreme Court of the United States of
America in the application of the Fourteenth Amendment were eschewed in our
Constitution and instead the limits of restrictions,, on each fundamental right
were indicated in the clauses that follow the first clause of the nineteenth
article, it cannot be said as an absolute principle that no law will be
considered bad for sheer vagueness. There is ample authority for the
proposition that a law affecting fundamental rights may be so considered. A
very partinent example is to be found in State of Madhya Pradesh and Anr. v.
Baldeo Prasad (2) where the Central Provinces and Berar Goondas Act 1946 was
declared void for uncertainty. 'the condition for the application of ss. 4 and
4A was that the person sought to be proceeded against must be a goonda but the
definition of goonda in the Act indicated no tests for deciding which person
fell within the definition. The provisions were therefore held to be uncertain
and vague.
The real rule is that if a law is vague or
appears to be so, the court must try to construe it, as far as may be, and
language permitting, the construction sought to be placed on it, must be in
accordance with the intention of the legislature. Thus if the law is open to
diverse construction, that construction which accords best with the intention
of the legislature and advances the purpose of legislation, is to be preferred.
Where however the law admits of no such construction and the persons applying
it are in a boundless sea of uncertainty and the law prima facie takes away a
guaranteed freedom, the law must be held to offend the Constitution as was done
in the case of the Goonda Act. This is not application of the doctrine of due
process. The invalidity arises from the (1) [1950] S. C. R. 88.
(2) [1961] 1. S. C. R. 970 at 979.
4 7 1 probability of the misuse of the law to
the determent of the individual. If possible, the Court instead of striking
down the law may itself draw the line of demarcation where possible but this
effort should be sparingly made and only in the clearest of cases.
Judging the directions from this angle, we
find that there are general principles regarding the films as a whole and specific
instances of what may be considered as offending the public interest as
disclosed in the clause that follows the enunication of the freedoms in Art.
19(1)(a). The general principles which are stated in the directions 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 broad way.
It is not a question of semantics but of the
substance of the matter. It is significant that Justice Douglas who is in
favour of a very liberal and absolute application of the First Amendment in
America is of the view that 'sexual promiscuity' was not vague, while those in
favour of prior restraints thought that it was. We have referred earlier to the
case. We are quite clear that expressions like 'seduction', 'immoral traffic in
women'. 'soliciting, prostitution or procuration', 'indelicate sexual
situation' and 'scenes suggestive of immorality', 'traffic and use of drugs',
'class hatred" 'blackmail associated with immorality' are within the
understanding of the average men and more so of persons who are likely to be
the panel for purposes of censorship. Any more definiteness is not only not
expected but is not possible. Indeed if we were required to draw up a list we
would also follow the same general pattern.
But what appears to us to be the real flaw in
the scheme of the directions is a total absence of any direction which would
tend to preserve art and promote it. The artistic appeal or presentation of an
episode robs it of its vulgarity and harm and this appears.
472 to be completely forgotten. Artistic as
well as inartistic presentations are treated alike and also what may be
socially good and useful and what may not. In Ranjit D. Udeshi's case(1) this
court laid down certain Principles on which the obscenity of a book was to be
considered with a view to deciding whether the book should be allowed to
circulate or withdrawn. Those principles apply mutatis mutandis to films and
also other areas besides obscenity.
The Khosla Committee also adopted them and
recommended them for the guidance of the film censors. We may reproduce them
here as summarized by the Khosla Committee:
"The Supreme Court laid down the
following principles which must be carefully studied and applied by our censors
when they have to deal with a film said to be objectionable on the ground of
indecency or immorality :(1) Treating with sex and nudity in art and literature
cannot be regarded as evidence of obscenity without something more.
(2) Comparison of one book with another to
find the extent of permissible action is not necessary.
(3) The delicate task of deciding what is
artistic and what is obscene has to be perfo rmed 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 (1) [1965] 1 S. C. R.
65 473 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 information’s or public interests or profits, the interests of
society may tilt the scales in favour of free speech and expression. Thus%
books on medical science with intimate illustrations and photographs though in
a sense immodest, are not to be considered obscene, but the same illustrations
and photographs collected in a book from without the medical text would
certainly be considered to be obscene.
(9) Obscenity without a preponderating social
purpose or profit cannot have the constitutional protection of free speech or
expression. Obscenity is treating with sex in a manner appealing to the carnal
side of human nature or having that tendency. Such a treating with sex is
offensive to modesty and, decency.
(1 0)Knowledge, is not a part of the guilty
act. The offender's knowledge of the obscenity of the book is not required
under the law and it is a case of strict liability." Application of these
principles does not seek to whittle down the fundamental right of free speech
and expression beyond the limits permissible under our Constitution for however
high or cherished that right it does not go to pervert or harm society and the
line has to be drawn somewhere. As was observed in the same case:
".. ..... The test which we evolve must
obviously be of a general character but it must admit of a just application
from case to case by indicating a line of demarcation not necessarily sharp but
sufficiently distinct to distinguish between that which is obscene and that
which is not..........." A similar line has to be drawn in the case of
every topic in films considered unsuitable for _public exhibition or specially
to children.
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 over-weighing their offending
character. The task of the censor is extremely delicate and his duties cannot
be the subject of an exhaustive set of commands.
47 4 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 to and forever from human thought
and must give scope for talent to put them before society. The requirements of
art and literature include within them selves 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 essentially obscene or even indecent or immoral. It should be
our concern, however, to prevent the use of sex designed to play a commerical
role by making its own appeal. This draws in the censors scissors. Thus
audiences in India can be expected to view with equanimity the story of Oedipus
son of Latius 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 yet if 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 Cresseid (from where Verrier Elwyn
borrowed the idea) would never see the light of the day. Again carnage and
bloodshed may have historical value and the depiction of such scenes as the
sack of Delhi by Nadirshah may be 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 ?
Rape in all its nakedness may be objectionable but Vol47 5 taire's Candide
would' be meaningless without Cunegonde's episode with the soldier and the
story of Lucrece could never be depicted on the screen.
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.
We have said all this to show that the items
mentioned in the directions are not by themselves defective. We have adhered to
the 43 points 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(1) 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.
Whether this is done by Parliment or by the Central Government it hardly
matters. The whole of the law and the regulations under it will have always to
be considered and if the further tests laid down here are followed, the system
of censorship with the procedural safeguards accepted by the Solicitor General
will make censorship accord with our fundamental law.
We allow this petition as its purpose is more
than served by the assurance of the Solicitor General and what we have said,
but in the circumstances we make no order about costs.
Petition allowed.
R.K.P.S.
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