F.A. Picture International vs Central Board Of Film ...

on 5 November, 2004

Bombay High Court Bombay High Court F.A. Picture International vs Central Board Of Film ... on 5 November, 2004 Equivalent citations: AIR 2005 Bom 145, 2005 (1) BomCR 5, 2005 (2) MhLj 869 Author: C D.Y. Bench: B Dalveer, C D.Y. JUDGMENT Chandrachud D.Y., J. 1. "Chand Bujh Gaya" is a feature film produced by Faaiz Anwar. The film dwells on the travails of a young couple -a Hindu boy and a Muslim girl - whose friendship and lives are torn asunder in riots in the State of Gujarat. The Central Board of Film Certificate ('CBFC') refused to certify the film for exhibition. The Film Certification Appellate Tribunal affirmed that order. The producer is before the Court under Article 226 of the Constitution. For the reasons that we now proceed to record, we have come to the conclusion that the reasons which weighed with the CBFC and the Tribunal constitute a clear infringement of the fundamental right of the producer under Article 19(1)(a) of the Constitution. We hold that the reasons are unsustainable and that certification for the film could not lawfully have been refused. II 2. Besides "Chand Bujh Gaya", Mr. Faaiz Anwar states that he has been associated with the production of several films, among them "Dil Hai ke Manta Nahi", "Sajjan" and "Vijay Path", "Chand Bujh Gaya" was produced under the banner of F.A. Picture International with an aggregate footage of 11602 feet comprised in 15 reels. On 22nd September, 2003 the petitioner applied for certification of the film for public exhibition to the regional office of the CBFC at Calcutta. The film was examined by the Examination Committee. On 24th September, 2003 the petitioner received an intimation that the Committee recommended a refusal of certificate to the film for the following reason : "The film from the end of Reel No. 8 contains visuals as well as dialogues, which may have the danger of inciting communal violence among the people. Besides, a large number of visuals are extremely terrifying and as such unsuitable for public exhibition." 3. The petitioner by a letter dated 16th October, 2003 communicated a willingness to change the contents of dialogues and visuals which could not be certified in the view of the Committee. Thereupon after discussions with the Examining Committee the petitioner carried out deletions and alterations after the eighth reel reducing the footage of the film to 10,966 feet. The revised footage was submitted on 8th December, 2003 to the first respondent at Calcutta. On 12th December, 2003, the CBFC informed the petitioner that the Committee had recommended that the certificate be refused for the following reasons : "The film from after Reel No. 7 has depicted the following : 1. Gruesome communal violence, which, it is felt will forment communal disharmony. 2. Certain characters and incidents which are clearly identifiable with actual personalities and individuals, the public exhibition of which may lead to public disharmony. 3. The Gujarat violence is a live issue and a scar on national sensitivity. Exhibition of the film will certainly aggravate the situation." 4. In a reply dated 22nd December, 2003, the petitioner noted that the original objection was to certain visuals and dialogues from the end of the eighth reel. The petitioner stated that in the backdrop of those objections
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F.A. Picture International vs Central Board Of Film ... on 5 November, 2004

alterations were made, despite which, it was now sought to be contended that the contents of the film from the seventh reel were contrary to national interest. The petitioner highlighted that the message of the film was the futility of all communal violence, a theme which was reflected by the fact that in the film, the main actor and actress are killed by persons who belong to their own respective religions. The petitioner noted that the film neither glorified violence nor demeans any religion. The plea of the petitioner was that any further deletions would weaken the film as a piece of art and dilute the message of communal harmony which was the driving force underlying its making. The CBFC declined to alter its view in its letter dated 19th January, 2004 which led to the filing of an appeal before the Film Certification Appellate Tribunal. The Tribunal affirmed the decision of the certifying authority and in rejecting the appeal furnished the following reasons : "We are of the unanimous opinion that the film is full of gory visuals of violence and gruesome killings. Also certain characters have definite resemblance with the real life personalities. The appellants were, therefore, asked to delete certain visuals relating to macabre violence and also replace the scenes containing the characters which are easily identifiable with the actual personalities. The appellants expressed their inability to carry out the required changes in the film." III 5. When the petition came up for admission it was contended on behalf of the petitioner that each of the reasons that weighed with the certifying authority and with the Appellate Tribunal constitutes a serious encroachment of the right to free speech and expression guaranteed by Article 19(1)(a) of the Constitution. Counsel urged that these reasons are incapable of passing muster in view of the law laid down by the Supreme Court. Moreover, it was urged that the censor has clearly missed the central theme of the film. 6. We were of the view that it was appropriate for the Court to witness the film. Accordingly, a screening of the film was arranged for the Court which was also attended by Counsel for the petitioner and the respondents. The respondents thereafter filed an affidavit in reply of 5th October, 2004 seeking to justify the decision which is challenged in these proceedings. IV 6-A. Article 19(1)(a) of the Constitution guarantees to every citizen the fundamental right to the freedom of speech and expression. Films have always been regarded as constituting a powerful medium of expression. Succeeding generations bred on a diet of the electronic media may well cause a sense of spondence to those who decry the loss of the habit of reading. The genius of a Somerset Maugham, the Universe of Wordsworth or closer home, the imagery of a P.L. Deshpande may well need adaptations in an age dominated by the electronic media. The form of the medium may change but the values which underlie the importance of expression are constant. They are values which a society founded on a commitment to individual freedom holds dear. In a democratic society every citizen has a right to speak as indeed, the right to know. Knowledge of the affairs of governance and the invocation of peaceful forms of dissent is a necessary precondition to the existence of a stable society formed of informed citizens. Nothing can be as destructive of the social fabric in a democratic society than the attempt of those who govern to prevent access to information to those whose security depends upon the preservation of order. As environment in which human rights are respected is nurtured by a vibrant flow of information and avenues for a critical assessment of governance. 7. Artists, writers, playrights and film makers are the eyes and the ears of a free society. They are the veritable lungs of a free society because the power of their medium imparts a breath of fresh air into the drudgery of daily existence. Their right to communicate ideas in a medium of their choosing is as fundamental as the right of any other citizen to speak. Our constitutional democracy guarantees the right of free speech and that right is not conditional upon the expression of views which may be palatable to mainstream thought. Dissent is the quintessence of democracy. Hence, those who express views which are critical of prevailing social reality have a valued position in the constitutional order. History tells us that dissent in all walks of life contributes to
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F.A. Picture International vs Central Board Of Film ... on 5 November, 2004

the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon. 8. The regulatory power of the State when it comes into contract with the fundamental right to free speech must be confined within the boundaries that have been prescribed by Article 19(2) of the Constitution. That sub-article contemplates the regulatory power of the State to impose by law reasonable restrictions on the fundamental right to free speech and expression; in the interests of (i) the sovereignty and integrity of India; (ii) the security of the State; (iii) friendly relations with Foreign States; (iv) public order, decency or morality; and (v) in relation to Contempt of Court, defamation or incitement to an offence. 9. Section 5B of the Cinematograph Act, 1952 adopts the grounds which have been spelt out in sub-article (2) of Article 19 as constituting reasons on the basis of which a film shall not be certified for public exhibition. The validity of the decision of the certifying authority to decline certification of a film for public exhibition must, therefore, be assessed with reference to those grounds. There is no general residuary discretion in a certifying authority to invent grounds which lie outside the purview of the regulatory power conferred by Article 19(2) of the Constitution of section 5B of the Cinematograph Act, 1952. Censorship in a free society can be tolerated within the narrowest possible confines and strictly within the limits which are contemplated in a constitutional order. V 10. In exercise of its power under sub-section (2) of section 5B of the Cinematograph Act, 1952, the Central Government has laid down the principles which shall guide the CBFC in sanctioning a film for public exhibition. The relevant part of those guidelines is as follows : " 1. The objectives of film certification will be to ensure that (a) the medium of film remains responsible and sensitive to the values and standards of society; (b) artistic expression and creative freedom are not unduly curbed; (c) certification is responsive to social change; (d) the medium of film provides clean and healthy entertainments; and (e) as far as possible, the film is of aesthetic value and cinematically of a good standard." "2. In pursuance of the above objectives, the Board of-Film Certification shall ensure that (i) anti-social activities such as violence are not glorified or justified; (ii) the modus operandi of criminals, other visuals or words likely to incite the commission of any offence are not depicted; (iv) pointless or avoidable scenes of violence, cruelty and horror, scenes of violence primarily intended to provide entertainment and such scenes as may have the effect desensitizing or dehumanising people are not shown; (ix) scenes degrading or denigranting women in any manner are not presented;

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F.A. Picture International vs Central Board Of Film ... on 5 November, 2004

(x) scenes involving sexual violence against women like attempt to rape, rape or any form of molestation, or scenes of a similar nature are avoided, and if any such incident is germane to the theme, they shall be reduced to the minimum and no details are shown;" "(3). The Board of Film Certification shall also ensure that the film (i) is judged in its entirety from the point of view of its overall impacts; and (ii) 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." VI 11. The certifying authority in its decision of 12th December, 2003 furnished three reasons. According to the authority, the footage of the film after the seventh reel contains gruesome communal violence which "it is felt" will forment communal disharmony. Secondly, the authority asserts that certain characters and incidents are identifiable with actual personalities and individuals which may lead to public disharmony. Thirdly, it asserts that violence in the State of Gujarat is a live issue and a "scar on national sensitivity". The certifying authority was of the view that exhibition of the film would "aggravate the situation". The Appellate Authority has essentially affirmed the first two grounds holding that the film is "full of gory visuals of violence and gruesome killings" and that "certain characters have definite resemblance with the real life personalities". 12. Both the certifying authority as well as the Tribunal have, in our view, misconceived the scope and function of their powers and jurisdiction. Films which deal with controversial issues necessarily have to portray what is controversial. A film which is set in the backdrop of communal violence cannot be expected to eschew a portrayal of violence. The producer of a film on the Second World War cannot be true to his conscience if the horrors of war are not brought home by the film. The film "Life is Beautiful" constitutes a contemporary master piece as much for its moving depiction of the atrocities of the period as much as in the ability of the director to find humor in the lives of those on the verge of extinction in gas chambers. The director has available to him all the tools of trade. Satire, humor and the ability to shock each one out of the mundane levels of existence is what embellishes are forms. The Constitution protects the right of the artist to portray social reality in all its forms. Some of that portrayal may take the form of questioning values and mores that are prevalent in society. The power of literature lies in the ability of the writer to criticise commonly held beliefs and ordinary human foibles. Equally, a writer, producer and director of a film have the discretion to depict the horrors of social reality. In a film based on a theme of communal violence it would be most inappropriate to expect that the film should eschew a reference to what has taken place. 13. Both the certifying authority and the Tribunal were of the view that certain characters and incidents are identifiable with actual personalities and individuals. This again is a most impermissible ground to reject the certification of a film. The protection of the Constitution does not extend only to fictional depictions of artistic themes. Artists, film makers and playrights are affirmatively entitled to allude to incidents which 'have taken place and to present a version of those incidents which according to them represents a balanced portrayal of social reality. To say that the violence which took place in the State of Gujarat is a "live issue" and a "scar on national sensitivity" can furnish absolutely no ground for preventing the exhibition of the film. No democracy can countenance a lid of suppression on events in society. The violence which took place in the State of Gujarat has been the subject-matter of extensive debate in the press and the media and it is impermissible to conjecture that a film dealing with the issue would aggravate the situation. On the contrary, stability in society can only be promoted by introspection into social reality, however grim it be. Ours, we believe, is a mature democracy. The view of the censor does no credit to the maturity of a democratic society by making an assumption that people would be led to disharmony by a free and open display of a cinematographic theme. The certifying authority and the Tribunal were palpably in error in rejecting the film on the ground that it had characters which bear a resemblance to real life personalities. The constitutional protection under Article
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F.A. Picture International vs Central Board Of Film ... on 5 November, 2004

19(1)(a) that a film maker enjoys is not conditioned on the premise that he must depict something which is not true to life. The choice is entirely his. Those who hold important positions must have shoulders which are broad enough to accept with grace a critique of themselves, critical appraisal is the cornerstone of democracy and the power of the film as a medium of expression lies in its ability to contribute to that appraisal. VII 14. "Chand Bujh Gaya" represents the story of a young couple, deeply devoted to each other. Their association unfolds in the background of the violence which erupts in the State of Gujarat. The film undoubtedly depicts scenes of violence, some of them explicit. The violence in the film must, however, be assessed without being torn out of the context of the film. The producer and director of the film have been even handed in the treatment of violence as something which is not confined to any one community alone. The underlying theme of the film and its over all message is that violence straddles across communities and that it would be unfair to regard violence as being the preserve of any particular part of society. The irony of the film lies in the fact that the actor, depicted to be a Hindu, is killed in the finale by persons who belong to his own community. He wears an amulet presented by his Muslim friend as a good luck charm and the marauding invaders mistake him to belong to another community on the basis of a talisman which he wears. The actress in the film who is a Muslim by religion is mistakenly killed by persons who belong to her own community as she calls out in distress to her friend who has been killed. The theme of the film is the absolute insensibility of violence. The film does not extol violence nor does it condemn any community as having taking recourse to violence. The film depicts members of both the Hindu and Muslim communities protecting their friends belonging to the other community and of sheltering them for safety. To deny certification to the film on the grounds which have weighed with the authorities below was, therefore, in our view, be patently unsustainable. "Chand Bujh Gaya" belongs to the genre of commercial cinema. The film has hence more than a fair share of song and dance sequences. That need not detain us for we sit to decide the issue as to whether the denial of certification transgresses constitutional and legal parameters. We hold that it does. VII 15. The principle which must guide the Court in the decision of this case are well settled. In Indian Express Newspapers v. Union of India, , the Supreme Court emphasised that in a democratic society people have a right to be informed of developments that take place in the democratic process. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, : , the telecasting of the serial "Honi Anhonee" was sought to be restrained on the ground that it was likely to spread blind beliefs and superstitions. The Supreme Court vacated an injunction which was granted by the High Court. The Supreme Court held that the right of a citizen to exhibit a film on Television would be curtailed only in the circumstances set out in Article 19(2) of the Constitution. In S. Rangarajan v. P. Jagjivan Ram, , the High Court had revoked a certificate for unrestricted public exhibition granted by the Censor Board to a film whose theme was the reservation policy. Reversing the decision, the Supreme Court held that films constitute a legitimate and important medium for the treatment of issues of general concern and it was open to a producer to project his own message even if it is not approved of by others. The State, it was held, cannot prevent open discussion and open expression, however, hateful it may be to its policies. Restrictions on the freedom of expression under Article 19(2) must be justified on the anvil of necessity and not in the quicksand of convenience of expediency. In LIC v. Manubhai D. Shah, , the telecasting of a documentary film on the Bhopal Gas Disaster was in issue. Confirming the judgment of the High Court directing Doordarshan to telecast the documentary, the Supreme Court held that the print media, the radio and television are vital public educators in a democracy, the freedom to air one's views is the lifeline of every democratic institution and any attempt to stifle, suffocate or gag this right would be inconsistent with a democratic set up. 16. In Ramesh Chhotalal Dalai v. Union of India, , a petition was filed under Article 32 of the Constitution before the Supreme Court for a writ, restraining the Union of India and Doordarshan from telecasting a serial
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entitled "Tamas". The film depicted the violence, killing and looting that took place between the Hindu and Muslim communities during partition. The Supreme Court noted that the film depicted the period prior to partition and how the communal violence was generated by fundamentalists and extremists in both the communities. Before the Supreme Court it was argued that there was a real danger that the film would incite people to violence and to commit other offences 83 arising out of communal disharmony. Rejecting the submission, the Supreme Court held thus : "But the argument overlooks that the potency of the motion picture is as much for good as for evil. If some scenes of violence, some nuances of expression or some events in the film can stir up certain feelings in the spectator, an equally deep strong, lasting and beneficial impression can be conveyed by scenes revealing the machinations of selfish interests, scenes depicting mutual respect and tolerance, scenes showing comradeship, help and kindness which transcend the barriers of religion. Unfortunately, modern developments both in the field of cinema as well as in the field of national and international politics have rendered it inevitable for people to face the realities of internecine conflicts, inter alia, in the name of religion. Even contemporary news bulletins very often carry scenes of pitched battle or violence. What is necessary sometimes is to penetrate behind the scenes and analyse the causes of such conflicts. The attempt of the author in this film is to draw a lesson from our country's past history, expose the motives of persons who operate behind the scenes genearte and foment conflicts and to emphasise the desire of persons to live in amity and the need for them to rise above religious barriers and treat one another with kindness, sympathy and affection. It is possible only for a motion picture to convey such a message in depth and if it is able to do this, it will be an achievement of great social value. In the present case the finding of the learned Judges of Bombay High Court is that the picture viewed in its entirety, is capable of creating a lasting impression of this message of peace and co-existence and that people are not likely to be obsessed, overwhelmed or carried away by the scenes of violence or fanaticism shown in the film. We see no reason to differ from this conclusion." 17. The Supreme Court had occasion to revisit the issues which arise before the Court when an appeal was carried against the judgment of the Delhi High Court in relation to the film "Bandit Queen". In {Bobby Art International v. Om Pal Singh Hoon), , Mr. Justice S.P. Bharucha (as the learned Chief Justice then was) held that a film "that illustrates the consequences of a social evil necessarily must show that social evil". No film "that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil". Dealing with the theme of the film, the Court held thus : "First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinema goes lust but to arouse in him sympathy for the victim and disgust for the perpetrators... "Bandit Queen" tells a powerful human story and to that story the scene of Phoolan Devi's enforced naked parade is central. It helps to explain why Phoolan Devi became what she did :her rage and vendetta against the society that had heaped indignities upon her." 18. Before concluding, we would advert to two decisions of a Division Bench of this Court consisting of Mr. Justice A.P. Shah and MR. Justice S.C. Dharmadhikari, both delivered on 3rd March, 2004. In the first decision, Anand Patwardhan v. Director General of Doordashan, W.P. 2863 of 2003, reported in 2004(5) Bom.C.R. (O.O.C.J.)651, this Court quashed and set aside the decision taken by Prasar Bharati refusing to telecast a documentary film entitled "Father, Son and Holy War" on Doordarshan. In the second decision, Ramesh Pimple v. Central Board of Film Certification, W.P. 2864 of 2003, , the Division Bench set aside the decision of the Film Certification Appellate Tribunal declining to grant certification to the documentary film entitled "Aakrosh" on the communal riots that took place in Gujarat in the year 2002. The Division Bench in arriving at this decision, followed several judgments of the Supreme Court to which a reference has been made by us. DC
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19. Applying the tests which have been laid down by the Supreme Court and for the reasons that we have indicated, we are of the view that the decision of the Central Board of Film Certification was one which no reasonable body of persons could have arrived at. We are conscious of the position in law that the Court exercising writ jurisdiction would ordinarily not substitute its view for the view of an expert. In that formulation, the word "ordinarily" is significant. Significant because the foundation for its exercise tests on the commitment of the Court as an expounder of constitutional principle. Where the decision of the CBFC entrenches upon the fundamental right to the freedom of speech and expression, it is not merely the function but the duty and responsibility of the Court to intervene. Free speech and expression is a value which is fundamental to the functioning of a democratic society. The orders passed by the CBFC and by the Appellate Tribunal are unsustainable and must be quashed and set aside. We order accordingly. We direct the first respondent to issue an appropriate Censor Certificate for the film "Chand Bujh Gaya". There shall be no order as to costs.

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