TaxTMI 
TaxTMI 
1970 (9) TMI 104
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted 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. 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 buil....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ps 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) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance 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 autho- rities 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 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 opi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 exhib....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 sub- section 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 thrown on 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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, sui....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ist 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 cinemagnates 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hrough 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' pro- pounded by Justice Holmes as the only basis for curtailing the freedom of speech and expression, see Shenck v. U.S. 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. (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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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 ins....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tates 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 film- making 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "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 g....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orms 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. 5- B (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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ide 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. 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 clause' incorporated in the American Constitution by the 5th and 14th Amendments. The courts in India have no authority to declare a statute in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uaranteed 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 probability of the misuse of the law to the deteriment 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 whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rawn. 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 performed 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 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 toto and for ever from human thought and must give scope for talent to put the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 del....