{"id":181384,"date":"2006-08-25T00:00:00","date_gmt":"2006-08-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/director-generaldirectorate-vs-anand-patwardhan-anr-on-25-august-2006"},"modified":"2018-11-01T22:11:35","modified_gmt":"2018-11-01T16:41:35","slug":"director-generaldirectorate-vs-anand-patwardhan-anr-on-25-august-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/director-generaldirectorate-vs-anand-patwardhan-anr-on-25-august-2006","title":{"rendered":"Director General,Directorate &#8230; vs Anand Patwardhan &amp; Anr on 25 August, 2006"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Director General,Directorate &#8230; vs Anand Patwardhan &amp; Anr on 25 August, 2006<\/div>\n<div class=\"doc_author\">Author: . A Lakshmanan<\/div>\n<div class=\"doc_bench\">Bench: Dr. Ar. Lakshmanan, Lokeshwar Singh Panta<\/div>\n<pre>           CASE NO.:\nAppeal (civil)  613 of 2005\n\nPETITIONER:\nDirector General,Directorate General of Doordarshan &amp; Ors.\n\nRESPONDENT:\nAnand Patwardhan &amp; Anr.\n\nDATE OF JUDGMENT: 25\/08\/2006\n\nBENCH:\nDr. AR. Lakshmanan &amp; Lokeshwar Singh Panta\n\nJUDGMENT:\n<\/pre>\n<p>J U D G M E N T<\/p>\n<p>Dr. AR. Lakshmanan, J.\n<\/p>\n<p>The appellant in the present matter is Doordarshan who<br \/>\nhave decided not to telecast the documentary film made by the<br \/>\nrespondent titled &#8220;Father, son and Holy War&#8221;. The respondent<br \/>\nis a filmmaker. The respondent no.1 in 1995 submitted his<br \/>\ndocumentary film, &#8220;Father, son and Holy War&#8221;, to the<br \/>\nappellant for telecast on National network Doordarshan.<br \/>\nRespondent no.1 was to provide a U-matic Certificate for the<br \/>\nsame to be aired by Doordarshan.\n<\/p>\n<p>The documentary film was in two parts, the film dealt<br \/>\nwith social realities and issues such as patriarchy, violence,<br \/>\nfundamentalism, suppression of women etc.  Part-I was given<br \/>\n&#8216;U&#8217; Certificate and Part-II was given &#8216;A&#8217; Certificate by the<br \/>\nCensor Board.\n<\/p>\n<p>\tA few lines about the film and the producer:-<br \/>\nFather, Son and Holy War is the third part of a trilogy<br \/>\nof documentary films against communal violence that the<br \/>\nauthor made from the mid 1980&#8217;s to the mid 1990&#8217;s.  His two<br \/>\nearlier films In Memory of Friends (1990) (on building<br \/>\ncommunal peace in strife torn Punjab) and Ram Ke Naam\/In<br \/>\nthe Name of God (1992) (on the Ayodhya crisis) looked at the<br \/>\nquestion of class and caste.  Both films won National Awards<br \/>\nbut both were rejected by Doordarshan on the grounds that<br \/>\nthey would create law and order problems.  In the end, the<br \/>\nauthor won the cases in the High Court and the films were<br \/>\nfinally telecast by Doordarshan.  No law and order problems<br \/>\nresulted and the telecasts were well received.\n<\/p>\n<p>Father, Son and Holy War (1995) was also shot during<br \/>\nthis period.  It looks at the question of gender along with the<br \/>\nissue of religious violence.  What triggered this way of looking<br \/>\nwas the incident of Sati in Deorala and that fact that<br \/>\nthousands of young men were celebrating the death of Roop<br \/>\nKanwar.  This led the author to examine the male psyche<br \/>\nbehind violence  and the idea that women were property.  It is<br \/>\ncommon knowledge that very often sexual violence against<br \/>\nwomen accompanies communal riots.  This may be because<br \/>\nthe &#8220;enemy&#8217;s&#8221; women are seen as his property and so, worthy<br \/>\nof abduction or destruction.\n<\/p>\n<p>The first part of Father, Son and Holy War (&#8220;Trial by<br \/>\nFire&#8221;) looks at the problems faced by Hindu and Muslim<br \/>\nwomen within their own religions.  Part 2 (Hero Pharmacy)<br \/>\nexamines the construction of the values of &#8220;manhood&#8221;.  As the<br \/>\nfilm proceeds we become privy to the inner psyche of men and<br \/>\nbegin to learn how men are socialized into believing that<br \/>\nviolence is desirable.  The film looks at the rhetoric of street<br \/>\nsellers of aphrodisiac who create feelings of male insecurity<br \/>\nand impotence in their audience and then offer their cheap<br \/>\nmedicine as a cure.  It then looks at the rhetoric of communal<br \/>\npoliticians (both Hindus and Muslims) and see that they too<br \/>\nare appealing largely to their male audiences, they too are<br \/>\ntaunting them for their impotence, but the medicine they offer<br \/>\nfor the creation of &#8220;real men&#8221; is hatred against the other<br \/>\ncommunity.\n<\/p>\n<p>On 14.8.1996, the appellant issued a circular which<br \/>\nstated that Doordarshan will not telecast any &#8216;A&#8217; certified adult<br \/>\nor U\/A feature film on it. On 28.2.1997, the respondent<br \/>\nhanded over a copy of the U-matic Certificate of the<br \/>\ndocumentary film to the appellant. However, Doordarshan still<br \/>\nrefused to telecast the documentary film.\n<\/p>\n<p>On 22.9.1998, the respondent no.1, filed a writ petition<br \/>\nbefore the Bombay High Court against the refusal of<br \/>\nDoordarshan to telecast the documentary film, which was<br \/>\ndisposed off by the Division Bench by directing Doordarshan<br \/>\nto take a decision on the application of respondent no.1 within<br \/>\na period of six weeks.\n<\/p>\n<p>A selection Committee was constituted on 10.8.1998 by<br \/>\nthe appellant to preview the documentary film produced by<br \/>\nrespondent no.1. The selection Committee observed that, &#8220;The<br \/>\ndocumentary entitled &#8216;Father, Son &amp; Holy War&#8217; depicts the rise<br \/>\nof Hindu fundamentalism and male chauvinism without giving<br \/>\nany solution how it could be checked. The violence and hatred<br \/>\nwhich is depicted in the whole documentary will have an<br \/>\nadverse effect on the minds of the viewers&#8221; This decision of<br \/>\nthe Selection Committee was communicated to the<br \/>\nrespondents on 20.8.1998.\n<\/p>\n<p>Against this the respondent no.1 approached Bombay<br \/>\nHigh Court. A Division Bench of the Bombay High Court<br \/>\nallowed the writ and directed the appellant to telecast the<br \/>\nrespondent no.1 documentary film &#8220;Father, son and the Holy<br \/>\nWar&#8221; within a period of six weeks in the evening slot. This<br \/>\ndecision by the High Court was challenged by the appellant by<br \/>\nway of a Special Leave Petition in this Court. This Court<br \/>\nobserved that, the Committee which was constituted to<br \/>\nconsider the proposal of the respondent was not validly<br \/>\nconstituted as required under the guidelines of Doordarshan<br \/>\nand therefore the decision taken by the Committee was<br \/>\nwithout jurisdiction. This court went ahead to order on<br \/>\n12.12.2001 the constitution of a new Committee in accordance<br \/>\nwith para 5(ii) of the Guidelines of Doordarshan to consider<br \/>\nthe proposal of the respondent within three months of the<br \/>\nconstitution of such Committee.\n<\/p>\n<p>A Committee was duly constituted and on 6.8.2002, the<br \/>\ncommittee viewed the documentary film and was of the<br \/>\nopinion that, &#8220;the film has a secular message relevant to our<br \/>\ntimes and our societyhowever, the film contains scenes and<br \/>\nspeeches, which can influence negative passionsand the<br \/>\ncommittee would like a larger committee with representatives<br \/>\nof religion and politics also to see the film and form an opinion<br \/>\nbefore it is open to public viewing.&#8221;\n<\/p>\n<p>A larger committee was constituted and viewed the<br \/>\ndocumentary film. The said committee on 5.6.2003<br \/>\nrecommended the screening of this documentary film on<br \/>\nDoordarshan while observing that, &#8220;it may alienate sections of<br \/>\nIndian society and screening may lead to reactions by<br \/>\norganized groups.&#8221;\n<\/p>\n<p>On 11.7.2003, the Prasar Bharati Board pre-viewed the<br \/>\ndocumentary film and was of the opinion that the<br \/>\ndocumentary film contained scenes which could promote<br \/>\nviolence, its production quality was unsatisfactory and its<br \/>\ntelecast would be violative of the policy of the Doordarshan of<br \/>\nnot screening &#8220;A&#8221; certified movies. This decision of<br \/>\nDoordarshan was communicated to the respondent no.1 on<br \/>\n18.7.2003.\n<\/p>\n<p>A contempt petition was filed by respondent no.1 alleging<br \/>\nthe disobedience of the order of the High Court dated<br \/>\n12.12.2001. The High Court disposed off the petition by<br \/>\nholding that the respondent was aggrieved of the decision of<br \/>\nPrasar Bharati Board, and it was open to him to challenge the<br \/>\nsame before an appropriate forum.\n<\/p>\n<p>The respondent filed a writ petition in the Bombay High<br \/>\nCourt and directed Doordarshan to exhibit the documentary<br \/>\nfilm of the respondent no.1, &#8220;Father, son and Holy War&#8221; on<br \/>\nchannel I or II within 12 weeks from the date of the judgment<br \/>\non a convenient day and time as fixed by Doordarshan. It is<br \/>\nagainst this decision of the High Court of Bombay the<br \/>\nDoordarshan has come on appeal to this Court. .<br \/>\nWe heard Mr. Rajeev Sharma, learned counsel appearing<br \/>\nfor the appellants and Mr. Prashant Bhushan, learned counsel<br \/>\nappearing for the respondent. We have viewed the screening of<br \/>\nthe documentary film titled &#8220;Father, son and the Holy War&#8221;<br \/>\nwhich is the subject matter of the present case before us. We<br \/>\nhave also carefully perused all the documents presented by<br \/>\nboth the parties before us.\n<\/p>\n<p>Mr. Rajeev Sharma, learned counsel appearing for the<br \/>\nDoordarshan submitted that the decision not to telecast the<br \/>\nfilm of the respondent is based on valid and germane<br \/>\nconsiderations and no film maker can claim that he has a<br \/>\nvested right that a film made by him must be telecast on<br \/>\nDoordarshan.  He submitted that as a matter of policy the<br \/>\nDoordarshan do not telecast films which are certified as &#8220;A&#8221; or<br \/>\n&#8220;UA&#8221;.  Admittedly Part one of the film in question has been<br \/>\ncertified as &#8220;U&#8221; and Part two as &#8220;A&#8221;.  The policy of<br \/>\nDoordarshan of not telecasting &#8220;A&#8221; or &#8220;UA&#8221; films has not been<br \/>\nchallenged by the respondent here.  Therefore, the<br \/>\nDoordarshan cannot be directed to telecast the film contrary<br \/>\nto its policy.  Learned counsel also submitted that the telecast<br \/>\nof the film is likely to give rise to communal violence and riots<br \/>\nand that Doordarshan has reached the remote corners of the<br \/>\ncountry.  It has a wide audience which mainly consists of<br \/>\nilliterate and average persons who will be largely affected due<br \/>\nto screening of the film.\n<\/p>\n<p>Mr. Prashant Bhushan, learned counsel appearing on<br \/>\nbehalf of the respondent submitted that the refusal by Prasar<br \/>\nbharti to telecast the film is a clear violation of the<br \/>\nrespondent&#8217;s fundamental right under Article 19(1)(a) of the<br \/>\nConstitution.  He urged that the film carries a strong message<br \/>\nfor unity and secular India and there is no justification to<br \/>\nprevent its telecast on Doordarshan.  It is submitted that the<br \/>\nDoordarshan has a policy of telecasting award winning films<br \/>\nand documentaries and the action of the Doordarshan in<br \/>\nrefusing to screen the film contrary to the said policy is totally<br \/>\nunfair, unjust and arbitrary.  Learned counsel further<br \/>\nsubmitted that the Censor Board has approved the film and<br \/>\nthe guidelines of Doordarshan in telecasting the film cannot be<br \/>\nsubstantially different from the guidelines laid down under the<br \/>\nCinematographic Act, 1952.  In any event, according to the<br \/>\nlearned counsel unless the said guidelines are read down they<br \/>\nwould be liable to be strucked down as grossly violating the<br \/>\nfundamental rights guaranteed by Article 19(1)(a) of the<br \/>\nConstitution.\n<\/p>\n<p>In view of the rival submissions, the following substantial<br \/>\nquestions of law arise for adjudication by this Court.\n<\/p>\n<p>(a)\tWhether any film producer has a right to insist that<br \/>\nhis film must be shown on Doordarshan?\n<\/p>\n<p>(b)\tWhether the High Court was justified in directing<br \/>\nthe screening of the film certified as U\/A.\n<\/p>\n<p>Notwithstanding the fact as a matter of policy,<br \/>\nDoordarshan does not telecast adult film?\n<\/p>\n<p>(c)\tWhether the policy of Doordarshan of not<br \/>\ntelecasting adult movies can be said to be violative<br \/>\nof Article 19(1)(a) of the Constitution of India as has<br \/>\nbeen held by the High Court?\n<\/p>\n<p>(d)\tWhether or not it is open to the High Court to<br \/>\nsubstitute its opinion for that of the competent<br \/>\nauthority as to whether a film is fit for being telecast<br \/>\non a public medium such as Doordarshan?\n<\/p>\n<p>\tIn the instant case, the documentary of the respondent<br \/>\nhas been cleared by the Central Board for Film Certification,<br \/>\nthe Film Certification Board, which is a body of experts was<br \/>\nobviously not of the view that the film promotes communal<br \/>\nviolence, otherwise, the film would not have been certified by<br \/>\nthe Board for public exhibition.  In view of this background,<br \/>\nwe are unable to appreciate the view taken by the Prasarbharti<br \/>\nBoard.\n<\/p>\n<p>The film of the respondent no doubt deals with the<br \/>\ncommunal violence.  At the same time, we also listen to a<br \/>\nstirring speech made by a woman activist on a street who<br \/>\nexhorts people to &#8220;remember their neighbours&#8221; during<br \/>\ncommunal riots.  The film contains a narrative of a muslim<br \/>\nwoman, a social worker who has been raped by the communal<br \/>\nmurderers of her husband and that of a Hindu mill worker<br \/>\nwhose children were killed in the bomb blast which occurred<br \/>\nin the aftermath of the communal riots.  The attempt of the<br \/>\nfilm maker is to portray the miseries of the innocent victims of<br \/>\nthe communal riots.  These sequences convey an obvious<br \/>\nmessage of communal harmony as an ordinary muslim slum<br \/>\ndweller is seen in the closing sequences of the film re-building<br \/>\nthe destroyed home of his Hindu neighbour.  The message of<br \/>\nthe filmmaker cannot be gathered by viewing only certain<br \/>\nportions of the film in isolation but one has to view it as a<br \/>\nwhole.  There are scenes of violence, social injustices but the<br \/>\nfilm by no stretch of imagination can be said to subscribe to<br \/>\nthe same.  They are meant to convey that such social evils are<br \/>\nevil.  There cannot be any apprehension that it is likely to<br \/>\naffect public order or it is likely to incite commission of an<br \/>\noffence.  We are shocked at the observation of the Prasar<br \/>\nBharati Board that the film is not suitable due to<br \/>\nunsatisfactory production quality and that the film has<br \/>\nnothing specific to convey in public interest.  The documentary<br \/>\nwas given two awards in 42nd National Film Festival of 1995<br \/>\nconducted by the Ministry of Information and Broadcasting,<br \/>\nGovernment of India as Best Investigative Film and Best film<br \/>\non social issues.  It is, therefore, highly irrational and incorrect<br \/>\nto say that the documentary which was selected as best<br \/>\ninvestigative film and best film on social issues promote<br \/>\nviolence and its production quality was unsatisfactory and<br \/>\nthat the film has no specific message to convey.  The<br \/>\ndocumentary has won several awards in the International film<br \/>\nfestivals.  However, the Prasar Bharati Board strangely<br \/>\ncomments that the film had nothing specific to convey in<br \/>\npublic interest.  This view of the Prasar Bharati is in contrast<br \/>\nwith the opinion expressed by the two committees constituted<br \/>\nby the appellants.  The first committee held that the film had a<br \/>\nsecular message relevant to our times and our society and it<br \/>\nwas a critique of the current concept of masculinity and the<br \/>\nviolence it legitimises.  The second committee said that it was<br \/>\na very good film and must be shown.  Ordinarily the decision<br \/>\nof the selection committee in all cases shall be final as per<br \/>\npara 5(viii) of the guidelines laid down by the Ministry of<br \/>\nInformation and Broadcasting for telecasting films.  However,<br \/>\nit appears that the appellants were bent upon rejecting the<br \/>\nfilm and the decision of the committee was overruled by the<br \/>\nPrasar Bharati Board under the pretext that the guidelines<br \/>\nprohibit Doordarshan from exhibiting any film which is<br \/>\ngranted &#8216;A&#8217; certificate and since part II i.e. Hero Pharmacy has<br \/>\nbeen granted &#8216;A&#8217; certificate telecast of the said film is not<br \/>\npermitted under the guidelines framed by the Ministry of<br \/>\nInformation and Broadcasting.\n<\/p>\n<p>In the instant case, the guidelines relied upon by the<br \/>\nDoordarshan are not even framed under the Cinematograph<br \/>\nAct but they are merely internal guidelines for the guidance of<br \/>\nthe officials of the Doordarshan.  Therefore, in our view, it<br \/>\nwould not be proper to deny telecast of an award winning<br \/>\ndocumentary merely on the ground that part II of the said<br \/>\ndocumentary is certified as &#8220;A&#8221; by the Censor Board.  In our<br \/>\nview, a documentary cannot be denied exhibition on<br \/>\nDoordarshan simply on account of it&#8217;s &#8220;A&#8221; certification or &#8220;UA&#8221;<br \/>\ncertification.  Mr. Rajeev Sharma made an attempt to object to<br \/>\ncertain scenes in the documentary especially one scene where<br \/>\na person is seen selling aphrodiscies on the road and while<br \/>\ndoing so is making certain remarks on the sexuality of males.<br \/>\nAs indicated in paragraphs supra, a film must be judged from<br \/>\nan average, healthy and common sense point of view.  If the<br \/>\nsaid yardstick is applied and the film is judged in its entirety<br \/>\nand keeping in view the manner in which the filmmaker has<br \/>\nhandled the theme, it is impossible to agree that those scenes<br \/>\nare offended by vulgarity and obscenity.  It is interesting to<br \/>\nnote that these objections were not even raised by any of the<br \/>\ncommittees constituted for the purpose of assessing the film.\n<\/p>\n<p>OBSERVATIONS:\n<\/p>\n<p>One of the most controversial issues is balancing the<br \/>\nneed to protect society against the potential harm that may<br \/>\nflow from obscene material, and the need to ensure respect for<br \/>\nfreedom of expression and to preserve a free flow of<br \/>\ninformation and idea. The Constitution guarantees freedom of<br \/>\nexpression but in Article 19(2) it also makes it clear that the<br \/>\nState may impose reasonable restriction in the interest of<br \/>\npublic decency and morality.\n<\/p>\n<p>The crucial question therefore, is, &#8216;what is obscenity?&#8217;<br \/>\n The law relating to obscenity is laid down in Sec.292 of the<br \/>\nIndian Penal Code, which came about, by Act 36 of 1969.<br \/>\nUnder the present sec.292 and sec.293 of the Indian<br \/>\nPenal Code, there is a danger of publication meant for public<br \/>\ngood or for bona fide purpose of science, literature, art or any<br \/>\nother branch of learning being declared as obscene literature<br \/>\nas there is no specific provision in the act for exempting them<br \/>\nfrom operations of those sections.\n<\/p>\n<p>The present provision is so vague that it becomes difficult<br \/>\nto apply it. The purposeful omission of the definition of<br \/>\nobscenity has led to attack of Section 292 of the Indian penal<br \/>\nCode as being too vague to qualify as a penal provision. It is<br \/>\nquite unclear what the provisions mean. This unacceptably<br \/>\nlarge &#8216;grey area&#8217;, common in laws restricting sexual material,<br \/>\nwould appear to result not from a lack of capacity or effort on<br \/>\nthe part of drafters or legislators.\n<\/p>\n<p>The Indian Penal Code on obscenity grew out of the<br \/>\nEnglish Law, which made court the guardian of public morals.<br \/>\nIt is important that where bodies exercise discretion, which<br \/>\nmay interfere in the enjoyment of constitutional rights, that<br \/>\ndiscretion must be subject to adequate law. The effect of<br \/>\nprovisions granting broad discretionary regulatory powers is<br \/>\nunforeseeable and they are open to arbitrary abuse.<br \/>\n<a href=\"\/doc\/1383068\/\">In Samaresh Bose &amp; Anr v. Amal Mitra &amp; Anr<\/a> (1985)<br \/>\n4 SCC 284 it was observed by this Court:  &#8220;The concept of<br \/>\nobscenity is moulded to a very great extent by the social<br \/>\noutlook of the people who are generally expected to read the<br \/>\nbook. It is beyond dispute that the concept of obscenity<br \/>\nusually differs from country to country depending on the<br \/>\nstandards of morality of contemporary society in different<br \/>\ncountries. In our opinion, in judging the question of obscenity,<br \/>\nthe Judge in the first place should try to place himself in the<br \/>\nposition of the author and from the viewpoint of the author.<br \/>\nThe judge should thereafter place himself in the position of a<br \/>\nreader of every age group in whose hands the book is likely to<br \/>\nfall and should try to appreciate what kind of possible<br \/>\ninfluence the book is likely to have in the minds of the readers.<br \/>\nThe judge should thereafter apply his judicial mind<br \/>\ndispassionately to decide whether the book in question can be<br \/>\nsaid to be obscene within the meaning of Section 292, IPC by<br \/>\nan objective assessment of the book as a whole and also of the<br \/>\npassages complained of as obscene separately.&#8221;<br \/>\nThis is one of the few liberal judgments the courts have<br \/>\ngiven. The point to worry about is the power given to the judge<br \/>\nto decide what he\/she thinks is obscene. This essentially<br \/>\ndeposits on the Supreme Court of India, the responsibility to<br \/>\ndefine obscenity and classify matters coming on media as<br \/>\nobscene or otherwise.  This Court has time and again adopted<br \/>\nthe test of obscenity laid down by Cockburn CJ. The test of<br \/>\nobscenity is, &#8216;whether the tendency of the matter charged as<br \/>\nobscenity is to deprave and corrupt those whose minds are<br \/>\nopen to such immoral influences, and in whose hands a<br \/>\npublication in media of this sort may fall.&#8217;<br \/>\nInterestingly, this test of obscenity, which was laid down<br \/>\nin the Hicklin case in 1869, is the only test in India to<br \/>\ndetermine obscenity.\n<\/p>\n<p>The Encyclopedia definition of obscenity states, &#8216;By<br \/>\nEnglish law it is an indictable misdemeanor to show an<br \/>\nobscene exhibition or to publish any obscene matter, whether<br \/>\nit be writing or by pictures, effigy or otherwise.&#8217; The precise<br \/>\nmeaning of &#8220;obscene&#8221; is, however, decidedly ambiguous. It has<br \/>\nbeen defined as something offensive to modesty or decency, or<br \/>\nexpressing or suggesting unchaste or lustful ideas or being<br \/>\nimpure, indecent or lewd&#8221;.\n<\/p>\n<p>In the United States, obscene material is any material or<br \/>\nperformance, if: the average person applying contemporary<br \/>\ncommunity standards would find that the subject matter<br \/>\ntaken as a whole appeals to the prurient interest; the subject<br \/>\nmatter depicts or describes in a patently offensive way, sexual<br \/>\nconduct of a type described in this section; and the subject<br \/>\nmatter, taken as a whole, lacks serious literary, artistic,<br \/>\npolitical, educational or scientific value.<br \/>\nTherefore, one can observe that, the basic guidelines for<br \/>\nthe tier of fact must be:\n<\/p>\n<p>(a) whether &#8221; the average person, applying contemporary<br \/>\ncommunity standards&#8221; would find that the work, taken as a<br \/>\nwhole, appeals to the prurient interest.;\n<\/p>\n<p>(b) whether the work depicts or describes, in a patently<br \/>\noffensive way, sexual conduct specifically defined by the<br \/>\napplicable state law; and\n<\/p>\n<p>(c) whether the work, taken as a whole, lacks serious literary,<br \/>\nartistic political, or scientific value.\n<\/p>\n<p>The Constitution of India guarantees everyone the right to<br \/>\nfreedom of expression. India is also a party to the International<br \/>\nCovenant on Civil and Political Rights and therefore bound to<br \/>\nrespect the right to freedom of expression guaranteed by<br \/>\nArticle 19 thereof, which states:\n<\/p>\n<p>1. Everyone shall have the right to hold opinions without<br \/>\ninterference.\n<\/p>\n<p>2. Everyone shall have the right to freedom of expression; this<br \/>\nright shall include freedom to seek, receive and impart<br \/>\ninformation and ideas of all kinds regardless of frontiers,<br \/>\neither orally, in writing or in print, in form of art, or through<br \/>\nany other media of his choice.\n<\/p>\n<p>This right guaranteed by the Indian constitution is<br \/>\nsubject to various restrictions. Like, respect of the rights or<br \/>\nreputation of others; protection of national security or of<br \/>\npublic order, or of public health or morals etc.<br \/>\nThe catchword here is &#8216;reasonable restriction&#8217; which<br \/>\ncorresponds to the societal norms of decency. In the present<br \/>\nmatter, the documentary film Father, Son and Holy War<br \/>\ndepicts social vices that are eating into the very foundation of<br \/>\nour Constitutional. Communal riots, caste and class issues<br \/>\nand violence against women are issues that require every<br \/>\ncitizen&#8217;s attention for a feasible solution. Only the citizens<br \/>\nespecially the youth of our Nation who are correctly informed<br \/>\ncan arrive at a correct solution. This documentary film in our<br \/>\nconsidered opinion showcases a real picture of crime and<br \/>\nviolence against women and members of various religious<br \/>\ngroups perpetrated by politically motivated leaders for<br \/>\npolitical, social and personal gains.\n<\/p>\n<p>This film so far as our opinion goes does not violate any<br \/>\nConstitutional provision nor will create any law and order<br \/>\nproblems as the Doordarshan fears. This movie falls well<br \/>\nwithin the limits prescribed by our Constitution and does not<br \/>\nappeal to the prurient interests in an average person, applying<br \/>\ncontemporary community standards while taking the work as<br \/>\na whole, the work is not patently offensive and does not<br \/>\nproceed to deprave and corrupt any average Indian citizen&#8217;s<br \/>\nmind.\n<\/p>\n<p>In addition we are emphasizing here on the fact that<br \/>\nmany Committees have screened this documentary film<br \/>\nincluding a committee set up by the appellants themselves<br \/>\ninvolving media experts, representatives of various religions<br \/>\nand politics, who have opined that, &#8220;It is a very good film and<br \/>\nmust be shown. It may alienate sections of Indian society and<br \/>\nscreening may lead to reactions by organized groups. In the<br \/>\nunanimous view of the committee that protest is an important<br \/>\npart of Indian democracy and was a part of its fight for<br \/>\nindependence, which is also a compelling reason for the film to<br \/>\nbe shown. Keeping these in mind the committee recommends<br \/>\nthat the screening of the film be preceded by a discussion in<br \/>\nwhich alternative views are given by persons with different<br \/>\nviews.&#8221; As we see, only Doordarshan has an opposition with<br \/>\nairing the documentary film stating policy related difficulties.<br \/>\nTo this we are of the view that, since the Central Board of Film<br \/>\nCertification has already cleared the documentary film in<br \/>\nquestion by award of U\/A certificate, the policy of<br \/>\nDoordarshan of non-telecast of &#8216;A&#8217; certified films will not stand<br \/>\non the way of this film being aired. A blanket ban as this one<br \/>\nwill be in violation of Article 19(2) of the Constitution which<br \/>\nguarantees right of a citizen to express himself\/herself. The<br \/>\nSupreme Court has clarified on this regard way back in 1970,<br \/>\nin the case of <a href=\"\/doc\/1719619\/\">K.A. Abbas vs The Union of India &amp; Anr,<\/a><br \/>\n(1970) 2 SCC 780 where this Court held that, &#8220;Sex and<br \/>\nobscenity are not always synonymous and it is wrong to<br \/>\nclassify sex as essentially obscene or even indecent or<br \/>\nimmoral.&#8221;  In yet another case of Ramesh vs. Union of India,<br \/>\n(1988 (1) SCC 668) this court has observed that, &#8220;that the<br \/>\neffect of the words must be judged from the standards of<br \/>\nreasonable, strong minded, firm and courageous men, and not<br \/>\nthose of weak and vacillating minds, nor of those who scent<br \/>\ndanger in every hostile point of view. This, in our opinion, is<br \/>\nthe correct approach in judging the effect of exhibition of a film<br \/>\nor of reading a book. It is the standard of ordinary reasonable<br \/>\nman or as they say in English law &#8220;the man on the top of<br \/>\nClaapham omnibus.&#8221;\n<\/p>\n<p>Hence, in our view, the correct approach to be taken here<br \/>\nis to look at the documentary film as a whole and not in bits,<br \/>\nas any message that is purported to be conveyed by way of a<br \/>\nfilm cannot be conveyed just by watching certain bits of the<br \/>\nfilm. In the present situation the documentary film is seeking<br \/>\nto portray certain evils prevalent in our society and is not<br \/>\nseeking to cater to the prurient interests in any person.<br \/>\nTherefore, we have no hesitation in saying that this<br \/>\ndocumentary film if judged in its entirety has a theme and<br \/>\nmessage to convey and the view taken by the appellants that<br \/>\nthe film is not suitable for telecast is erroneous.<br \/>\nIn this regard, the guidelines issued by the Central<br \/>\nGovernment to evaluate films gain importance and can be<br \/>\nreferred to. Clause 3 of the Guidelines reads as follows:<br \/>\n&#8220;Clause 3: The Board of Film Certification shall also<br \/>\nensure that the film:\n<\/p>\n<p>(i)\tis judged in its entirety from the point of the<br \/>\noverall impact; and<\/p>\n<p>(ii)\tis examined in the light of the period depicted in<br \/>\nthe film and the contemporary standards of the<br \/>\ncountry and the people to which the film relates,<br \/>\nprovided that the film does not deprave the<br \/>\nmorality of the audience.&#8221;\n<\/p>\n<p>It was held in Bobby Art International &amp; Ors v Om Pal<br \/>\nSingh Hoon &amp; Ors (1996) 4 SCC 1, K A Abbas (Supra) that a<br \/>\nfilm was required to be viewed as a whole, and in the context<br \/>\nof the message that the filmmaker desired to communicate.<br \/>\nIn this film too, scenes must be seen in the context of the<br \/>\nmessage of exploitation of women through insecurities created<br \/>\nin men and the film must be evaluated in its entirety.<br \/>\nIn LIC of India v Prof. Manubhai D. Shah with UOI v<br \/>\nCinemart Foundation (1992) 3 SCC 637, it was held that<br \/>\nmerely because a film was critical of the State Government,<br \/>\nDD could not deny selection and publication of the film. This<br \/>\nfilm was an award winning film about the Bhopal Gas<br \/>\nTragedy. Likewise, in <a href=\"\/doc\/341773\/\">S.Rangarajan v. P. Jagjivan Ram &amp;<br \/>\nOrs<\/a> (1989) 2 SCC 574, it has been observed that Censors<br \/>\nshould not have an orthodox or conservative outlook, but<br \/>\nmust be responsive to change and must go with the current<br \/>\nclimate. The state cannot prevent open discussion, however<br \/>\nhateful to its policies. This was about a film that criticized the<br \/>\nexisting reservation policy and proposed an alternative system<br \/>\nbased on economic deprivation.\n<\/p>\n<p>We also are aware that the documentary film made by<br \/>\nrespondent no.1 has won many National and International<br \/>\nawards. The documentary film won National Awards in two<br \/>\ncategories viz &#8220;Best Investigative Film&#8221; and &#8220;Best Film on<br \/>\nSocial Issues&#8221; in the 42nd National Film Festival 1995,<br \/>\nconducted by the Ministry of Information and Broadcasting.<br \/>\nThe documentary film also won Special Jury Award in Israel,<br \/>\nJapan and Canada. Keeping these facts in view we find it<br \/>\nabsurd that a documentary film that has won the National<br \/>\naward is facing problems for it being screened on the National<br \/>\nTelevision.\n<\/p>\n<p>CONCLUSION:\n<\/p>\n<p>\tIn our opinion, the respondent has a right to convey his<br \/>\nperception on the oppression of women, flawed understanding<br \/>\nof manhood and evils of communal violence through the<br \/>\ndocumentary film produced by him.  As already noticed, this<br \/>\nfilm has won awards for best investigative film and best film<br \/>\non social issues at the national level. The documentary film<br \/>\nhas won several awards at the international level as well.  The<br \/>\nfreedom of expression, which is legitimate and constitutionally<br \/>\nprotected, cannot be held to ransom on a mere fall of a hat.<br \/>\nThe film in its entirety has a serious message to convey and is<br \/>\nrelevant in the present context.  Doordarshan being a State<br \/>\ncontrolled agency funded by public funds could not have<br \/>\ndenied access to screen the respondent&#8217;s documentary except<br \/>\non specified valid grounds.\n<\/p>\n<p>The refusal of the appellants to telecast the film in the<br \/>\ncurrent case in the face of unanimous recommendations by<br \/>\ntheir own Committees set up in accordance to the direction of<br \/>\nthis Court is an issue to be addressed apart.  The High Court<br \/>\nof Bombay has not substituted its discretion for that of the<br \/>\nauthorities.  On the contrary, the High Court has ruled that<br \/>\nwhen the decision making process has itself resulted in the<br \/>\nrecommendations to telecast; it is not open to the<br \/>\nDoordarshan to find other means just to circumvent this<br \/>\nrecommendation.  The High Court has only corrected the<br \/>\nfailure of Doordarshan to follow through with their own<br \/>\ndecision making process on the pretext of a Circular which<br \/>\nbeing non-statutory cannot be used to limit right of<br \/>\nexpression.  Besides the Circular, in terms, applies only to<br \/>\nfeature films and not to documentaries.  Before ruling thus,<br \/>\nthe High Court viewed the film for itself which is a process<br \/>\nfollowed innumerable times before even by this Court in cases<br \/>\nconcerning the official media to satisfy itself the<br \/>\nrecommendations of the Expert Committee was not patently<br \/>\nabsurd.  Thus, it is not a case where the High Court has<br \/>\nsubstituted its judgment for that of the decision-making<br \/>\nauthority but one where the decision made by due process has<br \/>\nbeen upheld by the High Court.  In our view, the Doordarshan<br \/>\nbeing a National Channel controls airwaves, which are public<br \/>\nproperty.  The right of the people to be informed calls for<br \/>\nchannelizing and streamlining Doordarshan&#8217;s control over the<br \/>\nnational telecast media vehicle.\n<\/p>\n<p>We also are of the view that, Doordarshan all through the<br \/>\npresent matter has been displaying a sad reluctance in<br \/>\ntelecasting this film, which was made almost ten years ago. We<br \/>\ncan trace a history of Doordarshan not telecasting many films<br \/>\nin spite of them being award winning films at the national and<br \/>\ninternational level, this can be seen in the case of films like &#8220;In<br \/>\nMemory of Friends&#8221;, &#8220;Ram ke Naam&#8221; etc. In addition an<br \/>\ninteresting observation that can be arrived is that<br \/>\nDoordarshan has been finding flimsy excuses time and again<br \/>\nas clear from the facts in not telecasting the documentary film<br \/>\nin question every time the film was sought to be aired either at<br \/>\nthe instance of the respondent or due to the orders of the<br \/>\ncourt. This in our view in highly irrational and is blatant<br \/>\nviolation of the right guaranteed under Article 19(1)(a) of the<br \/>\nConstitution. This behavior of Doordarshan would justify us in<br \/>\nstating that Doordarshan is being dictated by rules of<br \/>\nmalafides and arbitrariness in taking decisions with regard to<br \/>\nIn light of the above, the instant appeal at the instance of<br \/>\nDoordarshan is devoid of any merits.  Thus, the impugned<br \/>\njudgment deserves to be upheld and sustained by this Court.\n<\/p>\n<p>In the result, the appeal is dismissed and the orders<br \/>\npassed by the learned Judges of the Division Bench are<br \/>\naffirmed.  However, there will be no order as to costs.\n<\/p>\n<p>The appellant-Doordarshan is directed to exhibit the<br \/>\nentire documentary film of the respondent Father, Son and<br \/>\nHoly War on Channel No. 1 or 2 within 8 weeks from today on<br \/>\nsuch convenient date and time as may be fixed by<br \/>\nDoordarshan.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Director General,Directorate &#8230; vs Anand Patwardhan &amp; Anr on 25 August, 2006 Author: . A Lakshmanan Bench: Dr. Ar. Lakshmanan, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 613 of 2005 PETITIONER: Director General,Directorate General of Doordarshan &amp; Ors. RESPONDENT: Anand Patwardhan &amp; Anr. DATE OF JUDGMENT: 25\/08\/2006 BENCH: Dr. AR. Lakshmanan [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-181384","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Director General,Directorate ... vs Anand Patwardhan &amp; Anr on 25 August, 2006 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/director-generaldirectorate-vs-anand-patwardhan-anr-on-25-august-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Director General,Directorate ... vs Anand Patwardhan &amp; 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