Uncategorized

Supreme Court on obscenity (Bandit Queen Judgment)

A Remarkable judgment outlining the law of obscenity as it stands in India, in a nutshell, while holding Bandit Queen to have been rightly passed by the Censors, held it not to obscene as it in no manner appeals to the prurient interests or is lascivious – or corruptive to the minds of people whose minds are open to such immoral influences, it does not titilate rather reflect the agony of a woman gang raped and is a saga of her revenge. It negatived the argument that once censor board passes the movie – IPC would stand limp – The Courts can still peruse and scrutinize to see whether obscenity is there or not, though censor board certification is offcourse persuasive. 
 
Supreme Court of India
Bobby Art International, Etc vs Om Pal Singh Hoon & Ors on 1 May, 1996
Author: Bharucha
Bench: S Bharucha, B Kirpal

PETITIONER:

BOBBY ART INTERNATIONAL, ETC.

Vs.

RESPONDENT:

OM PAL SINGH HOON & ORS.

DATE OF JUDGMENT: 01/05/1996

BENCH:

CJI, S.P. BHARUCHA , B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:

WITH

CIVIL APPEAL NOS. 7523, 7525-27 AND 7524 (Arising out of SLP(Civil) No. 8211/96, SLP(Civil) No. 10519-21/96 (CC No. 1828-1830/96 & SLP(C) No. 9363/96) J U D G M E N T

BHARUCHA, J.

Special leave granted.

These appeals impugn the judgment and order of a Division Bench of the High Court of Delhi in Letters Patent appeals. The Letters Patent appeals challenged the judgment and order of a learned single judge allowing a writ petition. The Letters Patent appeals were dismissed, subject to a direction to the Union of India (the second respondent). The writ petition was filed by the first respondent to quash the certificate of exhibition awarded to the film “Bandit Queen” and to restrain its exhibition in India.

The film deals with the life of Phoolan Devi. It is based upon a true story. Still a child, Phoolan Devi was married off to a man old enough to be her father. She was beaten and raped by him. She was tormented by the boys of the village; and beaten by them when she foiled the advances of one of them. A village panchayat called after the incident blamed Phoolan Devi for attempting to entice the boy, who belonged to a higher caste. Consequent upon the decision of the village Panchayat. Phoolan Devi had to leave the village. She was then arrested by the Police and subjected to indignity and humiliation in the Police station. Upon the intervention of some persons she was released on bail; their intervention was not due to compassion but to satisfy their carnal appetite. Phoolan Devi was thereafter kidnapped by dacoits and sexually brutalised by their leader, a man named Babu Gujjar. Another member of the gang, Vikram Mallah, shot Babu Gujjar dead in a fit of rag while he was assaulting phoolan Devi. Phoolan Devi was attracted by Vikram Mallah and threw her not in with him. Along with Vikram Mallah she accosted her husband, tied him to a tree and took her revenge by brutally beating him. One Sri Ram, the leader of a gang of Thakurs, who had been released from jail, made advances to Phoolan Devi and was spurned. He killed Vikram Mallah. Having lost Vikram Mallah’s protection, Phoolan Devi was gang-raped by Sri Ram, Lalaram and others. She was stripped naked, paraded and made to fetch water from the village well under the gaze of the villagers, but no one came to her rescue. To avenge herself upon her persecutors, she joined a dacoits gang headed by Baba Mustkin. In avenging herself upon Sri Ram, she humiliated and killed twenty Thakurs of the village of Behmai. Ultimately, she surrendered and was in jail for a number of years.

(We have not viewed the film. The story thereof as set out above comes from the judgment under appeal.) The film is based on a book written by Mala Sen called “India’s Bandit Queen”. The book has been in the market since the year 1991 without objection. On 17th August, 1994, the film was presented for certification to the Censor Board under the Cinematograph Act, 1952. The Examining Committee of the Censor Board referred it to the Revising Committee under Rule 24(1) of the Cinematographic (Certification) Rules, 1983. On 19th July, 1995, the Revising Committee recommended that the film be granted an ‘A’ certificate, subject to certain excisions and modifications. (An ‘A’ certificate implies that the film may be viewed only by adults).

Aggrieved by the decision of the Revising Committee, an appeal was filed under Section SC of the Cinematographic Act before the Appellate Tribunal. It is constituted by virtue of the provisions of Section 5C of the Cinematograph Act and consists of the Chairman and members who “are qualified to judge the effect of films on the public”. In the present case the tribunal was chaired by Lentin. J., a retired Judge of the Bombay High Court, and three ladies, Smt. Sara Mohammad, Dr. Sarayu V. Doshi & Smt. Reena Kumari, were its members.

The Tribunal’s order states that the film “portrays the trials and tribulations and the various humiliations (mental and physical) heaped on her (Phoolan Devi) from childhood onwards, which out of desperation and misery drove her to dacoity and the revenge which she takes on her tormentors and those who had humiliated and tortured and had physically abused her.

3.1 The tone and tenor of the dialogues in this film reflect the nuances locally and habitually used and spoken in the villages and in the ravines of the Chambal, not bereft of expletives used for force and effect by way of normal and common parlance in those parts; these expletives are not intended to be taken literally. There in nothing sensual or sexual about these expletives used as they are in ordinary and habitual course as the language in those parts and express as they to emotions such as anger, rage, frustration and the like, and represent as they do the color of the various locales in this film.” The tribunal accepted the argument of the appellant before it in respect of certain scenes where excisions or modifications had been required. We shall restrict ourselves to the Tribunal’s findings on the observations relating to the film as a whole. A scene of policemen hitting Phoolan Devi with the butt of a gun had been ordered to be deleted; the Tribunal said that the deletion “would negate the very impact of this film in its endeavour to depict the maltreatment and cruelty heaped upon the victim by the perpetrators, which resulted in the former turning her face against, and seeking revenge on, the perpetrators of her humiliation and degradation. Deletion or even reduction of this sequence which follow, as it would also leave the average audience bewildered as to the intensity of the bitterness the victim right feels towards her tormentors.” Another scene dealt with the rape of Phoolan Devi by Babu Gujjar. The sequence was in three parts and the appellant had volunteered to reduce the first two sequences “to the bare cinematic necessity”: the Tribunal did not accept this, having ascertained what was meant. It directed that the second of the three sequences be deleted altogether, and that there be a reduction by 30% of the first sequence and by 20% of the third sequence, with the qualification that the visuals of the man’s bare posterior in the first and third sequences be reduced to a flash. Exception was taken before the Tribunal to the direction to reduce by 70% the sequence of Phoolan Devi torturing her husband. The Tribunal found that the sequence brought to the fore the ferocity of Phoolan Devi’s hatred and revulsion towards the man who drove her to being the hunted dacoit she became. Phoolan Devi’s pent-up anger, emotions and revulsion were demonstrated in the scene. It was a powerful scene the reduction of which would negate its impact. Much emphasis was laid before us upon the fact that Phoolan Devi is shown naked being paraded in the village after being humiliated. The Tribunal observed that these visuals could but create sympathy towards the unfortunate woman in particular and revulsion against the perpetrators of crimes against women in general. The sequence was an integral part of the story. It was not sensual or sexual, and was intended to, as indeed did, create revulsion in the minds of the average audience towards the tormentors and oppressors of women. “To delete or even to reduce these climactic visuals”, the Tribunal said, “would be a sacrilege”. It added, “4.9.1. While recommending the deletion of the visuals aforestated, perhaps the Revising Committee momentarily aforestated, perhaps the Revising Committee momentarily forgot “Schindier’s List” which was passed by the Board without a cut and despite prolonged sequences of frontal nudity of men and women depicted therein, and rightly so because the scenes of frontal nudity in that film were intended to create a feeling or revulsion and a sense of horror that such crimes could indeed be committed. Likewise in the present film.” The Tribunal permitted certain words of abuse in the vernacular to be retained because of the context in which they were spoken and the persons by whom they were spoken: “spoken as they are as colloquially and as part of their daily life, it would be unfair on our part to castigate the use of these words which we would otherwise have done”.

Upon the basis of this unanimous order of the Tribunal, the film was granted an ‘A’ certificate. On 31st August, 1995, the film was screened, with English sub-titles, at the Siri Fort Film Festival of India with the permission of the Ministry of Information and Broadcasting. From 25th January, 1996, onwards, the censored film was open to public viewing at various cinema theatres in the country.

On 27th January, 1996, the first respondent filed the writ petition before the Delhi High Court seeking to quash the certificate granted to the film and to restrain its exhibition in India. The first respondent stated in the writ petition that the was a Hindu and Gujjar by caste. He was the president of the Gujjar Gaurav Sansthan and involved in the welfare of the Gujjar community. He had seen the film when it was exhibited at the International Film Festival; he had felt aggrieved and his fundamental rights had been violated. Though audiences were led to believe that the film depicted the character of “a former queen of ravings” also known as Phoolan Devi, the depiction was “abhorrent and unconscionable and a slur on the womanhood of India”. The petitioner and his community had been depicted in a most depraved way specially in the scene of rape by Babu Gujjar, which scene was “suggestive of the moral depravity of the Gujjar community as rapists and the use of the name Babu Gujjar for the principal villian lowered the reputation of the Gujjar community and the petitioner. It lowered t he respect of the petitioner in the eyes of society and his friends. The scene of rape was obscene and horrendous and cast a slur on the face of the Gujjar community. The film went beyond the limits of decency and lowered the prestige and position of the woman in general and the community of Mahallas in particular. The first respondent had been discriminated against and Articles 14, 19 and 21 of the Constitution had been violated.

The learned Single Judge allowed the writ petition and quashed the certificate granted to the film. He directed the Censor Board to consider the grant of an ‘A’ certificate to it after excisions and modifications in accordance with his order had been made. Till a fresh certificate was granted the screening of the film was injuncted. The Division Bench, in the judgment under appeal, upheld the view taken by the learned single Judge. Having viewed the film, it examined it in regard to three aspects. The first dealt with the frontal nudity scene. The scene, the Division Bench said, ran for a full two minutes. The heroine was stripped totally naked in the gaze of about a hundred villagers standing in a circle at a distance around a well and she with her front, including her private parts, exposed. The Division Bench noted the findings of the Tribunal in regard to this scene (which have been referred to above) and held, “In the face of a finding by the Appellate Tribunal of the scene creating revulsion, the only inference could have been that the scene of total frontal nudity from top to toes was ‘indecent’ within Section 5-B and Article 19(2).” The scene also offended the guidelines in para 2(ix), para 2(xi) and para 2(vii). The second aspect that was considered by the Division Bench was that which showed the naked posterior of Babu Gujjar in the rape scene. As noticed by the Division Bench by stop watch, this scene ran for about 20 seconds. It showed sexual intercourse by man and his physical movement, with his posterior exposed. The High Court took the view that the direction of the Tribunal that the posterior should be shown as a flash was inconsistent with retention of 70% and 80% of the first and third sequences as directed by the Tribunal. The scene of violent rape was disgusting and revolting and it denigrated and degraded women. The third aspect that the High Court concerned itself with was the use of expletives and it concluded that they should be deleted. Over-all, the Division Bench was of the view that the Tribunal’s order was vitiated by the use of the wrong tests. Section 5-B of the Cinematograph Act, which echoes Article 19(2), states that a film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of, inter alia, decency. Under the provisions of sub-section (2) of Section 5-B the Central Government is empowered to issue directions section out the principles which shall guide the authority competent to grant certificates in sanctioning films for public exhibition.

The guidelines earlier issued were

revised in 1991. Clause (1) thereof

reads thus:

“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

or aesthetic value and

cinematically of a good standard.”

Clause (2) states that the Board of

Film Censors shall ensure that-

“(vii) human sensibilities are not

offended by vulgarity, obscenity or

depravity;

xxx xxx xxx

(ix) scenes degrading or

denigrating women in any manner are

not presented:

(ix) 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;

xxx xxx xxx

Clause (3) reads thus :

“The Board of Film Certification

shall also ensure that the film-

(1) is judged in its entirety from

the point of view of the overall

impact; 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.”

Learned counsel for the appellants submitted that the film had been scrutinised by the Tribunal, which was an expert body constituted for that purpose, and it had passed the test of such scrutiny. It was emphasised that three members of the four-member Tribunal were ladies and they had not found anything offensive in the film as certified for adult viewing. The guidelines, it was submitted, required the film did not offend either Section 5-8(i) or the guidelines. The submission of learned counsel for the appellants was supported by the learned Additional Solicitor General, appearing for the Union of India. Dr. Koul, learned counsel for the first respondent, submitted that the machinery under cinematograph act was only for those who had some concern with the making of the film and that citizens who were offended by it were free to approach the High Court under Article 226. There were compelling reasons for the High Court to pass the order that it did not for the film was abhorrent. What had also to be considered were the individual episodes and the episodes depicting full frontal nudity, rape and the use of swear ward offended the requirements of sub-clauses (vii), (ix) and (x) of the guidelines. The film violated the freedom of speech and expression of the first respondent.

The decision of the court most relevant to the appeals before use was delivered by constitution Bench in K.A, Abbas vs, the Union of India & anr., (1970) 2 S.C.C. 780. It related to a documentary film entitled “A Tale of Four Cities”. The appellant contended in a petition under Article 32 that he was entitled to a certificate for unrestricted public exhibition thereof. What Hidayatullah, C.J. speaking for the Court, said needs to be reproduced: “49. We may now illustrate out

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 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 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 them before

society. The requirements of art

and literature included

requirements of art and literature

include social life and not only in

its ideal from and the line is to

be drawn where the average 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

special or artistic 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 concerned, however,

to prevent the use of sex designed

to play a commercial role by making

its own appeal. This draws in the

censor’s 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, 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 natural

consequence. And yet if one goes by

the latter 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. It that were so Verrier

Elwyn’s Phulmat of the Hills or the

same episode in Henryson’s

Testament of Cressaid (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

Back 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 them without true

history? rape in all its nakedness

may be objectionable but

Voltaire’s Candide would be

meaningless without Cunegonde’s

episode with the soldier and the

story of Lucrece could never be

depicted on the screen.

50. 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 etching 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 of read the

Kamasutra but documentary from them

as a practical sexual guide would

be abhorrent.

51. 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 out opinion, this could be done,

But Parliament has not legislated

enough, not has the Central

Government filled in the gap.

Neither has separated the artistic

and the socially 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.”

In Raj Kapoor & Ors. vs. State & Ors., 1980 (1) S.C.C. 43, this Court was dealing with pro bono publico prosecution against the producer, actors and others connected with a film called “Satyem”, Sivam, Sundaram” on the ground of Prurience, moral depravity and shocking erosion of public decency. A petition to quash the proceedings was moved and procedural complications brought the matter to this Court. One of the questions considered was: when can a film to be publicly exhibited be castigated as prurient and obscene and violative of norms against venereal depravity. Krishna Iyer, J., speaking for the Court said,

“Art, morals and law’s manacles on

aesthetics are sensitive subject

where jurisprudence meets other

social sciences and never goes

alone to bark and bite because

State-made strait-jacket is an

inhibitive prescription for a free

country unless enlightened society

actively participates in the

administration of justice to

esthetics.

9. The world’s greatest

paintings, sculptures, songs and

dances, India’s lustrous heritage,

the Konaraks and Khajurahos, lofty

epics, luscious in patches, may be

asphyxiated by law, if prudes and

prigs and State moralists prescribe

paradigms and prescribe

heterodoxies..

14. I am satisfied that the Film

Censor Board, acting under Section

5-a, is specially entrusted to

screen off the silver screen

pictures with offensively invade or

deprave public morals through over-

sex. There is no doubt – and

Counsel no both sides agree 0 that

a certificate by a high-powered

Board of Censors with specialised

composition and statutory mandate

is not a piece of utter

inconsequence. It is relevant

material, important in its impact,

though not infallible in its

verdict. But the Court is not

barred from trying the case because

the certificate is not conclusive.

Nevertheless, the magistrate shall

not brush aside what another

tribunal has, for similar purpose,

found. May be, even a rebuttable

presumption arises in favour of the

statutory certificate but could be

negatived by positive evidence. An

act of recognition of moral

worthiness by a statutory agency is

not opinion evidence but an

instance or transaction where the

fact in issue has been asserted,

recognised or affirmed.

15. I am not persuaded that once a

certificate under the Cinematograph

Act is issued the Penal Code, Pro

tanto, will hang limp. The court

will examine the film and judge

whether its public display, in the

given time and clime, so breaches

public morals or depraves basic

decency as to offend the penal

provisions. Statutory expressions

are not petrified by time but must

be updated by changing ethos even

as popular ethics are not absolutes

but abide and evolve as community

consciousness enlivens and

escalates. Surely, the satwa of

society must rise progressively if

mankind is to move towards its

timeless destiny and this can be

guaranteed only if the ultimate

value-vision is rooted in the

unchanging basics, Truth- Goodness-

Beauty, Satyam, Sivam, Sundaram.

The relation between Reality and

Relativity must haunt the court’s

evaluation of obscenity, expressed

in society’s pervasive humanity,

not law’s penal prescriptions.

Social scientists and spiritual

scientists will broadly agree that

man lives not alone by mystic

squints, ascetic chants and austere

abnegation but by luscious love of

Beauty, sensuous joy of

companionship and moderate non-

denial of normal demands of the

flesh. Extremes and excesses

boomerang although some crazy

artists and film directors do

practise Oscar Wilde’s observation

: “Moderation is a fatal thing.

Nothing succeeds like excess”

In Samaresh Bose and an. vs. Amal Mitra and anr., 1985 (4) S.C.C. 289, this Court was concerned with a novel entitled “Prajapati”; it was published in Sarodiya Desh, which was read by Bengalis of both sexes and almost of all goes all over India. A complaint was lodged that the novel was obscene and had the tendency to corrupt the morals of its readers. This Court said :

” A vulgar writing is not

necessarily obscene. Vulgarity

arouses a feeling of disgust and

revulsion and also boredom but does

not have the effect of depraving,

debasing and corrupting the morals

of any reader of the novel, whereas

obscenity has the tendency to

deprave and corrupt those whose

minds are open to such immoral

influences. We may observe that

characters like Sukhen, Shikha, the

father and the brothers of Sukhen,

the business executives and others

portrayed in the book are not just

figments of the author’s

imagination, Such characters are

often to be seen in real life in

the society. The author who is a

powerful writer has used his skill

in focussing the attention of the

readers on such characters in

society and to describe the

situation more eloquently has had

used unconventional and slang words

so that in the light of the

author’s understanding, the

appropriate emphasis is there on

the problems. If we place ourselves

in the position of the author and

judge the novel from his point of

view, we find that the author

intends to expose various evils and

ills pervading the society and to

pose with particular emphasis the

problems which ail and afflict the

society in various spheres. He has

used his own technique, skill and

choice of words which may in his

opinion, serve properly the purpose

of the novel. If we place ourselves

in the position of readers, who are

likely to read this book, and we

must not forget that in this class

of readers there will probably be

readers of both sexes and of all

ages between teenagers and the

aged, we feel that the readers as a

class will read the book with a

sense of shock, and disgust and we

do not think that any reader on

reading this book would become

depraved, debased and encouraged to

lasciviousness. It is quite

possible that they come across such

characters and such situations in

life and have faced them or may

have to face them in life. On a

very anxious consideration and

after carefully applying our

judicial mind in making an

objective assessment of the novel

we do not think that it can be said

with any assurance that the novel

is obscene merely because slang and

unconventional words have been used

in the book in which there have

been emphasis on sex and

description of female bodies and

there are the narrations of

feelings, thoughts and actions in

vulgar language. Some portions of

the book may appear to be vulgar

and readers of cultured and refined

taste may feel shocked and

disgusted. Equally in some

portions, the words used and

description give may not appear to

be in proper taste. In some places

there may have been an exhibition

of bat taste leaving it to the

readers of experience and maturity

to draw the necessary inference but

certainly not sufficient to bring

home to the adolescents any

suggestion which is depraving or

lascivious. We have to bear in mind

that the author has written this

novel which came to be published in

the Srodiya Desh for all classes of

readers and if cannot be right to

insist that the standard should

always be for the writer to see

that the adolescent may not be

brought into contract with sex. If

a reference to sex by itself in any

novel fit to be read by

adolescents, adolescents will not

be in a position to read any novel

and “will have to read books which

are purely religious”.”

In The State of Bihar vs. Shailabala Devi, 1952 S.C.R. Mahajan, J. said that a writing had to be considered as a whole and in a fair and free and liberal spirit, not dwelling to much upon isolated passages or upon a strong word here and there. and an endeavour had to be made together the general effect which the whole composition would have not the mind of the public. Mukherjee, J., concurring with Mahajan, J., observed that the writing had to be looked at as a whole without laying stress on isolated passages or particular expressions used here and there and that the Court had to take unto consideration what effect the writing was likely to produce on the minds of the readers for whom the publication was intended. account had also to be taken of the place, circumstances and occasion of the publication, as a clear appreciation of the background in which the words were used was of very great assistance in enabling the court to view them in their proper perspective. In Sakal Papers (P) Ltd. and Ors. vs. The Union of India, 1962 (3) S.C.R. 842, a Constitution Bench held that the only restrictions which can be imposed on the rights of an individual under Article 19(1)(a) were those which clause (2) of Article 19 permitted and no other. This was reiterated in Life Insurance Corporation of India vs. Proof. Manubhai d. Shah, 1992 (3) S.C.C. 637. The guidelines aforementioned have been carefully drawn. They require the authorities concerned with film certification to be responsive to the values and standards of society and take note of social changes. They are required to ensure that ‘artistic expression and creative freedom are not unduly curbed”. The film must be “judged in its entirety from the point of view of its over-all impact”. It must also be judged in the light of the period depicted and the contemporary standards of the people to whom it relates, but it must not deprave the morality of the audience. Clause * requires that human sensibilities are not offended by vulgarity, obscenity or depravity, that scenes degrading or denigrating woman are not presented an scenes of sexual violence against women are avoided, but if such scenes are germane to the theme, they be reduced to a minimum and not particularised.

The guidelines are broad standards. They cannot be read as one would read a statue. Within the breath of their parameters the certification authorities have discretion. The specific sub-clauses of clause 2 of the guidelines cannot overweigh the sweep of clauses 1 and 3 and, indeed, of sub-clause (ix) of clause (2). Where the theme is of social relevance, it must be allowed to prevail. Such a theme does not offend human sensibilities nor extol the degradation or denigration of women. It is to this end that sub-clause (ix) of clause 2 permits scenes of sexual violence against women, reduced to a minimum and without details, if relevant to the theme. What minimum and lack of details should be is left to the good sense of the certification authorities, to be determined in the light of the relevance of the social theme of the film. ‘Bandit Queen’ is the story of a village child exposed from an early age to the brutality and lust of man . Married of to a man old enough to be her father she is beaten and raped. The village boys make advances which she repulses; Nut the village panchayat finds her guilty of the enticement of a village by because he is of high caste and she has to leave the village. She is arrested, and in the police station filthily abused. Those who stand bail for her dos to satisfy their lust. She is kidnapped and raped. during an act of brutality the rapist is shot dead and she find a ally in her rescuer. With his assistance she beats up her husband, violently, her rescuer is shot dead by one whose advances she has spurned. She is gang-raped by the rescuer’s assailant and his accomplices and they humiliate her in the light of the village: a hundred men stand in a circle around the village well and was the humiliation, her being stripped naked and walked around the circle and then made to draw water. And not one of the Villagers helps her. She burns with anger, shame and the urge for vengeance. She gets it, and kills many Thakurs too. It is not a pretty story. There are no syrupy songs or pirouetting round trees. It is the serious and sad story of a worm turning: a village born female. becoming a dreaded dacoit. An innocent who turns into a vicious criminal because lust and brutality have affected her psyche so. The film levels an accusing finger at members of society who had tormented Phoolan Devi and driven her to become a dreaded dacoit filled with the desire to revenge. It is in this light that the individual scenes have to be viewed.

First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred 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-goer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was not at Phoolan Devi’s nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shared of dignity, Nakedness does not always arouse the baser incident. The reference by the Tribunal to the film ‘Schindler’s List’ was apt. shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to but they have been stripped in their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellow feeling of shame are certain, except in the pervert or to assuage the susceptibilities of the over- sensitive. ‘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 die : her rage and vendetta against the society what had heaped indignities upon her. The rape scene also helps to explain why Phoolan Devi become what she did. Rape is crude and its crudity is what the rapist’s bouncing bare posterior is meant to illustrate. Rape and sex are not being glorified in the film. Quite the contrary. It shows what a terrible, and terrifying, effect rape and lust can have upon the victim. It focuses of on the trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist.

Too much need not, we think, be made of a few swear words the like of which can be heard every day in every city, town and village street. No adult would be tempted to use them because they are used in this film. In sum, we should recognise the message of a serious film and apply this test to the individual scenes thereof : do they advance the message ? If they do they should be left alone, with only the caution of an ‘A” certificate. Adult Indian citizens as a whole may be relied upon to comprehend intelligently the message and react to it, not to the possible titillation of some particular scene. A film that illustrates the consequences of a social evil necessarily must show that social evil. The guidelines must be interpreted in that light. 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. At the same time, the depiction must be just sufficient for the purpose of the film. The drawing of the line is best left to the sensibilities of the expert Tribunal. the Tribunal is multi-member body. It si comprised of persons who gauge public reactions to film and, except in case of stark breach of guidelines, should be permitted to go about its task.

In the present case, apart from the Chairman, three members of the Tribunal were woman. It is hardly to supposed that three women would permit a film be screened which denigrates women, insults India womanhood or is obscene or pornographic. It would appear from its order that the Tribunal took the view that it would do women some good to see the film.

We are of the opinion that the Tribunal had viewed the film in true perspective and had, in compliance with the requirements of the guidelines, granted to the film an ‘A’ certificate subject to the conditions it stated. We think that the High Court ought not to have entertained the 1st respondent’s writ petition impugning the grant of the certificate based as it was principally upon the slurs allegedly cast by the film on the Gujjar community. We find that the judgment under appeal does not take due not of the theme of the film and the fact that it condemns rape and the degradation of and violence upon women by showing their effect upon a village child, transforming her to a cruel dacoit obsessed with wreaking vengeance upon a society that has caused her so much psychological and physical hurt, and that the scenes of nudity and rape and the use of expletives, so far as the Tribunal had permitted them, were in aid of the theme and intended not to arouse prurient or lascivious thoughts but revulsion against the perpetrators and pity for the victim.

The appeal are allowed. The judgment and order appeal is set aside. The 1st respondent’s writ petition is dismissed. The “a” certificate issued to the film “Bandit Queen” upon the conditions imposed by the Appellate Tribunal is restored.

The 1st respondent shall pay to each appellant the costs of his appeal.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s