JUDGMENT
1. By this petition filed under Art. 226 of the Constitution, the petitioner is challenging the legality of the order dt. Nov. 25, 1985 passed by the Joint Secretary tot he Governnment of India in exercise of powers under Section 6 of the Cinematograph Act, 1952 (hereinafter referred to as the ACt), reversing the rder dt April 11, 1985 passed by the Film Certification Appellate Tribunal under S. 5C of the Act and directing that the Marathi feature film ” Maficha Sakshidar” (Approver) shall not be certified for public exhibition.
2. The broad theme of the film is based on the chain of murders that took place in the ciryt of Pune and which created quite a sensation and ultimatelky led to the criminal trial came tot be known as ‘ Joshi abhyankar Murdur trial and ended in conciction of the accused and imposition of death senteces. The petitioenr is a producer of the films and the film in question after cmpletion was submitted for certificate tothe Central Board of Film Certification, Bombay on Sept, 19, 1983, The film opens with a court scne and the approver making his statement and then with a flash back the se5ris of murders committed by the accused are pisctred. The offenders are students studying in local college and initially the memebrs of the gang indulged in stealing scooter and motor-bikes parked on the streets. Subsequently the leadler of the gang, one Rahavendra, motor and idea whereby demand of large sum of moneny is made tothe father of one of the team mates on the pretex that his son has been kidhapped and shall be relesed only on payment of the amount. The gang then decides to murder the team mate who aw as allegeed to have beebn kidnapped and after murder to the body is put is a drum which is dumped in tank situated in the partk. The members of the gang thendecide to commit robbery in the bungalow of one Hise and duirng the commission of the crime murder three memebrs of the family. The gang then proceeds to the bungalaoe fo an old Sanskrit Scholar and while robbing his house commits murder of five family memebrs . The gang thereafter proceeods to another bungalow and tries to rob the occupants but fails in their endeavour and had to flee due to daring act of a courageous had to flee due to yuound lad. By this time there is quite as stir in the town and the police and the Government officers wer taken to task by the people. One of the team mates therafeter advise the gang leadert stop the commission of any further crime and that angers the leader and that team member is also murdered and that the dead body is thrown in the river. The murders are committed by means of strangulation by a rope nand the offenders take precaution of weraring gloves so as not to leave behind any finger markds and also used to spray aromatic liquid at the scene of offence with a view to baffle the police dogs, who were likely to trace the offenders. At this juncture one of the offernders decides to leave the gang and is thereupon thretned by theother members with dire consequences. The offender with thereupon rushes to the police station and makes a clean breast for the offences committed by him in the company of the other accused. The police machinery then immediately takes steps to round up the accuesed and the four accused are tried in the court of Session and the approver gives evidence. The trilal results into convistion of four accused are a carried in the Court of Session and the approver gives evidence. The trial results into conviction of four accused and imposition of sentence of death. While the four accused are carried in the police van tothe jail, the gang leader is removed tohe hospital and decides to punish her son who has cuased great angusih to several familites, and cuts the life giving tubes attached to the leader resulting three acused are hanged in accordance with law.
3. The film after being submitted for certification by the petiioner a was viewed by the examining committee conssisting of five memebr and on Sept. 20, 1983 decided to grant ‘A’ Certificate without any cuts. However, the Chairman, Central Board of film Certification on his own referred the film to the revising committee consisting of nine members. The Revising Committee viewed the film on Octtober 14, 1983 and six members felt that ‘A’ Certificate should be granted , but differed amongst themselves about the cuts top be effected; while the remaining three members declined to issue certificate for the release of the film. Thereupon by the Chairman and this Committee unaimously communicated refusal of certificate. The petitioner was informed of the proviison decision of refusal of certificate and wass called upon to show cuse why that decision should not be confiemdd. After considering the reprensetation made by the petitioner, the Committee confirmed its earlier decision. The petitioner then prepared a revised version after deleting about 227 feet film from the original version and resubmitted it for certificatrion. The Examining Committee recommended refusal of certificate and so also the Revising Commttieie. The petitioner again made representation, but without any favourable response. Ultimately, the petitioner was informed on December 12, 1983 that the certificate cannot be granted.
4. The petitioner thereupon preferred an appeal before the Film Certification Appellate Tribunal and the Tribunal after viewing the film suggest 11 cuts which the petitioner carried out and thereafter the Appellate Tribunal alklwed the apeal and directied the Censor Board to issue ‘A’ certificates. The petitioner thereupon approached the Board for grant of certifcate but was informed that the matter has been referred to the Government and the decision of the Government is awaited.
5. On July 11, 1985 the respondent 2 joint Secretary in the Minister of Information and Braodcasitng served a notiice on the petitioner informing that the Appellate Tribunal did not fully appreciate the implicaiton of the certification of the film and the Central Goernmetn has provisioanly come to the conclusion that the films hsould not be granted certificate for public exhibition. The petitioern was called upon to make representation before the final decision is taken. The petitioner made representation and therafter the impugned order was passed by respondetn 2 holding that the film offends the guidlines relating to violence, cruelty, modus opranedi of criminals and depravity as mentioned in para 2(I) , (ii) , (iii) and (iv) of the guidelines issed by the Central Government and thus contrvenes the provisions relating to decency and incitement of the to commission of an offence within the meaning of s. 5-B(1) of the Act. On the strenght of this findign the certificate was refused and that order is under challenged in this petition filed in this Court on Jan., 8, 1986.
6. Shri Shah, learned counsel appearing on behalf of the petioenr, submitted that the order passed by respondent 2 suffers form serious inficrmly and is required to be quashed because respondent 2 has exceeded his jurisdiction confered under S. 6 of the Act and as treated the matter as an appeal over the order the Appellate Tribunal and disturb the conclusion by imposing the personal view of respondent 2, who is not qualified to judge the effect of films on the publci. Shri Shah further submitted that respondnet 2 has not done abythng except teiterating the grounds which were given by the censor Board was imaginary and the film did not contravune any of the guidelines a made by the Central Governmetn. Shri C.J.Shah, learned counsel appearing on behalf on of the respondents, on the other hand urged that he Cental Governemnt was perfectly justified in exersising revisional jurisdiction under S 6 of the Act as the Appellate Tribunal and had failed to furnish cogent reasons for grant of certificatre. The learned counsel urged that the reaons furnished by the Censor Board should hjave been accepted as that board comprises members who are familiar with the film work and are aware as to what would be the impact of a particular film of on the general public.
7. Before considering the grievance of the petitioner, it is necessary to set out of some of the provisions of th Act and the guidelines. The object of the Act is to make provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs. The Central Government is empoiwered to constitute a board of Film Censor under S. 3 of the Act. Section 5-A prescribes that the after examinign the film the Board may grant certificate for unrestructed public exhibition a ‘U’ certificate or a ‘A’ certificate for exhibition only to adults. Section 5-B sets out principles sfor guidance in certifying films and reads as udner:
“5-B(1) A film shall not be certified for public exhibition if in the opinion of the authority competent to grant the certificates, the film or any part of its is against the interests security of the state, friendly relations with morality, or involves defamation or contempt of Court or is like;ly in incite the commission of any offence.
Subjects to the provision contained in sub-section (1) the Central Governmetn issue such direction as it may think fit setting out the principle which shall guide the athority competent to grant certificates under this Act in sanctioning films for public exhibition”.
8. Section 5-C confers a right upon an aggrieved person to file an appeal before the Appellate Tribunal. Section 5-D deals with constitution od Appellate Tribunal and prescribed that the Tribunal shall consist of a Chairman and not more that four oter members apponted by the Central Gvoernemtn. A personis not qualified for appointment as a chariman unless he is a retired Judge of a High court or a person who is qualified to be a Judge of the High Couft . The Central Government is required to appont such person who are qualified to jdge the effect of films on the public as members of the Tribunal. TheTribunal can make any order in relationn to a film, as it thinks fit, after making such inquiry as ti consders necessary and after giving the appellant and the Board an opportunity of bneing heard in the matter. Secion 6 of the Act deals with revisional pwers fo the Central Governmetn to call for the record of any proceedings decided by the Tribunal and make such order in relation therto as it thinks fit after making inquiry into the matter and after giving opportunity to the party likely to be affected by the decision.
9. In exercise of powers conferred by sub-sec (2) of s. 5-B of the Act the CEntral Gvoernem,nt has framed the gudelines and it sets out that the objects of film censorship will be to ensure that (a) the medium of film remains responsible and sensitive to the values and standards of society; (b) artistice expression and creative freedom are not unduly curbed; and ( c) censorship is responsible to social change. The four relevant guideliines for the purpose of this petition ar 2(I), (ii), (iii) and (iv). Gudeline 2(I) requires the Board to ensure that anti-social activitess, such as violence, are not glorified or justified, Guimelne 2(ii) to ensure that the modus operndi of criminals or other visuals or word likely to incite the commsion of any offece are nt depicted; Guidline 2(iii) requires to ensure tah pontless or avoilable secnes of violence , cruetly and horror to not shown ans d Guidline 2(iv) requires to ensure that human sensibilites are not offended by vulgarity, obsecnity and …
10. The Appellate Tribunal was constituted under Section 5-D of gthe Act which was introduced Amending Act No. 49|81 dt. Dec. 18, 1981. This amended proviosn , providing for appeal to the Apppelate Tribubal, was intodeced and the erlier provison for appel to the Central Government was deleted in veiw of te decidion of the Supreme Court reportede ir , K.a. Abbas v. Union of India, a petition was filed before the Supreme Court for a declaration that provisions of Part Ii of the Cinematograghp Act, 1952 together with the rules preoxcired by the Central Government are unconstitutional and visd. Four contentions were raised in supposrt of the claim and those were (a) that precensorship itself cannot be toleated under the freedom it speech and expression; (b) that even if it weer egtimate restraint on the freedom it must be exercised on very definite principle wnhich leave no room for arbitray actions, ( c) that there must be a reaasonable time limit the fixed for the decision fof the authorites censsroing the filem, and (d) that the appeal should lie to a Court or to an imndependent tribunal and not the Central Government. The solicitor General appearing on behalf of the Unin of Indias, conceded that points ( c) and (d) are correct, and assured the supreme Court that the Government woild at the earliest possible effectuate them at the opportunity. The Supreme Court held that the in view of the procedureal safeguards, assurd to be introduced by the solicitor General , will make censofship accord with our fundametal law. The Appellate Trtibunal a was constituted in pursance of the assurance and it is a obvous in that the intendtion of the Legislature was to have an independent bod of experts presiede ouver by a retired Judge of the High Court or a person qualified tobe a Judge of the High Court. The Parliament constituted such high court. The Parliament constituted such high poowered body with an intention tocreate confidence in the mind of the producer of a film that his case would be examined by an independent forum the effect of the film on public.
11. IN the present case the reasons given by the Board for refusal of certiificate are (1) that the film is an attempt to exploit a recent trtagic incident, (2) it shows that rutheless, cold blooded, unprovoked kilings of several innocent persons, (3) the main culprit is shown to be deriving sadistic pleasure each time when he kills a apersom, (4) the theme and treatment of the film involve a certain amount of mouds operandi which can have an emuoative impacft on the minds of educated yoouth, and (5) the film hurts the sensibilites of the viewiers by deppravity. Agaiinst this decision of th Board, the petitioner carried an appeal and its was heard by the Tribunal consisting of the Chairman Shri. V.D. Misra, a former Judge of the Delhji High Court, shri N.J. Kakath and Smt. Manmohani Sehgal, thth two members. I am informed at the bar that Shri Kamat is a linguist and is familiar with the Marathi language. The TRibunal viwed the film and sugested 11 cutss and the petitoner apcepted the same and theratfter the film was again viewd and the Tribunal felt ‘A’ certificare witht he cuts should be granted. The respondent 2 the Joint Secretary to the Government of India, has disturbed the decision broadly on three grounds (1) that the Tribunal has not given any cogent reasons for disagreeting with the Board which consisted of emient people people with a lot of experience in exaamination of films,(2) the wanton killings by the group led by a ring leader and the details of killings and the victims shown in the film atre onjections in general and are likely to mislead immature young and person prone to delinh particular and (3) that the guidelined issued violated in the film as in scne after scne brutal and imndless violence has been shown while depicting the murders. Respondent 2 while had been the film before passing the order, but does not claim any familiarity with the Marathi lanuage or claim to be qualified to Judfge the effect of films on the public .
12. In my judgement, the submission urged on behalf of the petitioner that respondent 2 committed an aeeor in disturbing the ordoer of the Appelalte Tribunal by exercise of powers under s. of the Act deserves acceptance. It is necessary to remeber that the legislature has constitued the Appellate Tribunal in accordance with the assurance given by the Solicitor GEneral to the supreme Court that the appeal woulb be provided to an independent Tribunal and nor to the Central Government. The Legislature in its wisdom prescribed that he Tribunal should consit of a Chiarmn who is a retired HIgh Court Judge and the members qualified to judge the effect and the effect of films on the public.
The Act prescribeds only one appeal to the Tribunal and the Tribunal is required to dispose of the appeal after hearing the aggrived person as well as the Censor Board who has declined to grant the certificate. To give effect to theintentnion of the Legilsature it is necessary that orders of the Appelate Tribunal are not made subject of the further appeal by the Central Governmetn and indeed the Legilsture does not prescribe for a second round of apeal s 6 of the ACt undoubtedly confers the revisional powers of on the Central Government, but it hardly requires to be stated that exercise of such powers should be in exceptional circumstances and not as a matter of routine. The pwoers are delegated by the Central Government in faouvr of the Joint Secretary is not qualified to judege Secretary is not qualigied to judge the effect fo film on the puhblic, nor he has an experience in excamination of films.
13. To permit such a burecrat to disturbn the conclusion recorded by the Appealalte Trtibual, which is a high powered body, by reviewing the film and by substituting the personal view, would make the mockery of the substantive right of appeal conferred on the producer. It canot be denied tht the Central Government has power under s. 6 of any maater decided by the Appellate Tribunal , but such power should be exercise very sparingly and in exceptional circumstances. Moreover, such power should be exercised not to determine whether the film suffers from the vice of indency or immorality, but only to determine whether the public exhibition would be detrimental to the interst of the country or the security of the Sate or public order. The question as to whter a film ofends the guidelines as reagards the violence, vulgarity or obscentiy depends upon several fatual ciircumstances and in respect of which when the expert body, likee and Appelate Tribunal , has opined, then it is desirable that the Central Government should not causaly disturb that conclusion and especially by exercise of powers by the Secretary who is not qualified to judge the effect of film of the public. Respondnet 2 should not have substituted his personal opinion in place of the decision given by an expert body constituted by the statutory provisions. The decision recorded b y respondent 2 cleary indicates that the matter has been treated as another appeal against the order of the Appelate Tribunal and that was certainly not permisible. The decision of respondent 2 is therefore required to be set aside on the ground of exceeding jurisdiction conferred under s 6 of the Act.
14. But apart from this consideration , in my judgement, the reasons given by respondent 2 for the setting aside the order of the Appellate Tribunal are not sustainbaly even on merits. To ascertain whether the observation made by reaspondent 2 on the merits of the film in the presenfc of the learned counsel and my mother tongue being Marathi, I could follow the theme and dialogue very well. Respondent 2 observation in the impugned order that the Tribunal has not given any cogent reasons for disagreeing with the Censor Board which consited of eminent people with lot of experience in examination of the films. Thiss observation cllearly over looked that the Appelalte Tribunal also consited of emient people with larger experince in examination of films. It is difficult to understand how respondent 2 could disturb the conclusion of the Appellate Tribunal on disagreement with the Censor Board were not given. Respondent 2 failed to appraciate that the Appelalte Tribunal was not expected to write a long judgement dealing with eachg and every aspecpt of the matter. The Appellate Tribunal had viewed the film and then suggested an many as 11 cuts. Thereafter the Appellate Tribunal aganin viewed the film and heard both, the petitioner and the Censor Board, in support of their respective claims. The appelate Tribunal only thereafter recorded a reeasoned order. It is not permissible for respondetn 2 to set aside this order in revisionary jurisdction merely because respondent 2 feets that contrary view taken by the Censor Baord is preferable.
15. Respondnet 2 then observed that in the film more than half a dozen murders have been depicted in detail and this statement is factually incorrect. The film shows only six murders and they have not been depicted in detail. The observations of respondent 2 “In my ipinion , the wanton killings by the group led by a ring leader and detaild os killings immature young perosns prone to delinquency in particular” clearly imdicate that respondent 2 was substituting his personal subjectives opinionm in place of the decision taken byt he Appelate Tribunal. It s always risky and dangerous to import tohn the personal views in such matters and more so when one is not qualified to judge the effect the of film on the ppublic. The bureaucracy should be cautions to rush in the field whichis secialised and it wouldn be edtemely prjudicial to a film maker who has spent a large amount and time over preparation of the film of the to told by a bureaucrat that ascccording to his personal moral standards the film should not be exhibited. I must observed that after viewing the film I did not feel that th film depicts wanton killings or is likely to mislead immature yound people prone to delinquence in particular, nor did I feel that the kilings are causual and without anyu provocation. The offernders committed murders with an intention to rob victims and the film at no stage glorigies to ro justifies the acion of the accused, but on the other desireis to convery a message that the crime does not pay. I wish to made make it very clear that I am not … convey that the conclusion recorded bythe Appellate Tribunal could not be said tobe faulty or suffering from any infirmity.
16. Respondnet 2 also observed that the Guidelines 2(I) to (iv) were violated by the petitioner, but it is not possisble t accept the observations made by respondent 2 in this conneciton. At no stage in the film anti-social activites and the violence are tried tobe glorigied or justified, bnut on the other hand erfforts are made to convey that violence and anti-social activites should be prevented ande if any one tries to indulge in the same then the arms of law would reach and the offender would not only be punished but would ruin his entire family. It is also futlie for respondent 2 to suggest that the modus operandi of criminals of other visuals are likely to incite the commision of any offence. It was urged on behalf of the respondnets tht he offernder are shown to the be committing murders by strangfulation with the aid of a rope and are also spreading aromatic liquid at the scne of offence and that is the modus operandi which is likely to incite the commision of furthr offencve by the young people. It is impossible otoaccede tot he submision for more than one reason. In the first instance, there no modus operandi in strangualtion of victims with the aid or fope or by sprading aromaticv liwuid at the scne of offence. This modus operandi is not unknown to criminal world. Scondly, the Appelate Trtibunal while suggesting the cuts provided that the sequenfces showing and the murders should be reducede to minimum andit was specifically directed that visual showinhg sppprayimg of scent should be deleted. The petioner accepted the cutes and after reviwing the film the Appelate Tribunal ahd granted certifiiiicate. Guideline (iii) prescribed that pointless or avoidable scenes of violence, cruelty and horror should not be shown. The Appellate Tribunal diirected the petitioner to delete all gruesome shots and permitted to delete all gruesome shots and permitted only one shot shwong the throwing of string round the neck of the victim. The petitioner was lso directed to redcue the sequence showing the murders and on satisfaction that such cuts were in fact implemente., the appelalte Tribunal granted the certificate, .It is difficult to understand how respondnet 2 thereafter can some to come to the conclusion that the film depicts pointless or avoidable scnes of violence. The ;last ground suggested by respondnet 2 is that thehuman sensibilites are offende by vulgarity, obscenity and depravity, but the learned counsel for the respondetnt had to concede that the film does not suffer from this alleged violated of the guidelines and could not be branded as vulgar or obscne. In my jugement, respondent 2 was was clearly in error in setting aside the well reasoned order of the Appelate Tribunal and subsititue his personal opinion. The order of respondent 2 therefore deserves to be set aside.
17. Accordingly, petition succeeds and the rules is made absoltue in terms of prayer (a). The respondent are directed to issue certificate to the film of the petitioer, as direicted by the Appelate Tribunal , within a period of two weeks from today. In case of petitioner submits the Hindi cersion of the film for cedrtificates then the respondents shall dispose of that application in accofdance with the rules and in the light of this judgement.
18. In the circumstances of the case, there will be no order as to costs.
19. Petitioner allowed.