AI Structured Summary
Not yet generated for this judgment
Judgment
S.No.,Cuts/modifications/Excisions,Guidelines,
1.,"Delete the dialogue of Savitriâ€s
neighbour
“Tumhare gharwale langot ke pakke
hai na†and “Dono tango ke beech
meinâ€",2(vii),
2.,"Reduce to flash the love making scene of
Indian man and foreign girl.",2(vii),
3.,"At 08:03, Delete the word “Marogeâ€
from
the dialogue “Brahmano ki maroge.",2(xii),
4.,"At 14:20, Delete the word
“Pichwadeâ€",2(vii),
5.,"At 11:56, Delete the word “Rashtraâ€
from
“Rashtrabhasha†from the dialogue
“Yeh Assi ki Rashtra Bhasha Haiâ€",2(xiv),
6.,"At 15:00, delete the word
“Bhosdike†said
by man dressed as Shiva while talking to
Panditji at the Ghat and wherever else.",2(vii),
7.,"At 45:00, in the love making scene delete
visual of man feeling/touching woman
between her legs.",2(vii),
8.,"Delete the conversation/scene where
suggestion is made to remove the Shiv
temple and make a latrine there. Further
also remove the scenes taking away the
Shiv idol and putting the same at various
places.",2(vii),
9.,"Mute the word “Babri†wherever it
occurs.",,
10.,"Mute the words Bhajpa, Advani, Atal
Bihari, Mulayam, Laloo†etc. wherever
they occur.",,
f “Kashinamaâ€, a play based on the fourth story of “Kashi Ka Assi†has represented Asia at the German theatre festival and has",,,
also been performed several times by veteran theatre actor and director “Usha Ganguli†at various places including at Varanasi. In its,,,
first performance at Kolkata, respected people of Kolkata were present viz. Hon Chief Minister of Bengal, Shri Buddhadev Dasgupta,",,,
internationally acclaimed film maker Mrinal Sen, etc. The same story is the central story of the FILM. Even, the performance of Kashinama",,,
was initially opposed by a section of audiences in Varanasi before the play was staged as they were ignorant of the content of the story.,,,
However, after its performance it was well received by the audiences. The same story is the central story of the FILM as both the play and",,,
the FILM are based on the book “Kashi Ka Assiâ€. The latest edition of the play was held in Shri Ram Centre recently without inciting,,,
any communal disharmony and public disorder.,,,
That extensive works and material related to the book “Kashi Ka Assi†on which the FILM is based are already available in the,,,
public domain for several years. The said works and material are in continued existence without inciting any communal disharmony and/or,,,
disturbing the peace of people for several years. It is pertinent to note here that, the Director and screenplay Writer of the FILM, Dr.",,,
Chandraprakash Dwivedi is a national award winning film maker and several creative professionals involved in creation of the FILM are,,,
National award winners or recipient of National Honours like Padma Shree and Sangeet Natak Akademy Award etc. As noted earlier,",,,
majority of the dialogues that form a part of the screenplay of the FILM are a part of the original text of the said book “Kashi Ka,,,
Assiâ€.,,,
That the main protagonist of the FILM, Dharmanath Pandey, is a Sanskrit Scholar who teaches “Vedantâ€. He also sits on the Ghat",,,
of Assi in the mornings to attend to pilgrims visiting Banaras and offers them “Ganga Jalâ€. Dharmanath Pandey is a crusader against,,,
the cultural pollution that is slowly spreading in Banaras. Protecting Sanskrit and Sanskriti are his main concerns. He is caught between,,,
sweeping changes that are happening in the country post liberalization and his personal crisis. The FILM depicts that India is going,,,
through times of turbulence. The agitation for Ram Janma Bhoomi has started getting momentum and the Nationalist parties and Nationalist,,,
social forces are emerging strongly and successfully on the political and social scene. In this social and political back drop, the FILM is a",,,
unique and interesting story of Dharmnath Pandey and a popular tea shop known as “Pappu ki Dukan†and some other interesting,,,
characters. It is a poignant tale of how culturally conscious people, trying to live with righteous means and trying to protect traditions and",,,
cultural heritage, are being marginalized and struggling for their existence and on the other hand those who spare no foul means are",,,
becoming successful. The story of the Film revolves around the cultural degradation, that it is threatening present day Banaras and issues",,,
that needs to be looked into. Apart from the said Dharmanath Pandey, the FILMâ€S characters have a crafty and clever tourist guide and",,,
an unsuccessful barber in prominent roles in the FILM. There is also a character of “Bahurupiya†(an imposter) in the FILM. This,,,
Bahurupiya impersonates himself as Shiv and earns his livelihood by getting himself clicked with foreign tourist for a price. He constantly,,,
fights with Dharmnath Pandey as Pandey is against his way of living by impersonating Shiv for his livelihood. The FILM depicts how the,,,
several characters of the FILM come to accept the realities of their existence and time. The FILM is a story of the Cultural and Spiritual,,,
capital of India-Banaras and its Mohalla Assi.,,,
That Varanasi or Kashi (the ancient name of Varanasi) is known for promoting debates, discussions and dialogues. “Pappu ki",,,
dukaan†in Mohalla Assi represents the same tradition of dialogues, debates and discussion with their unique humour. The discussions",,,
between Mends in the shop depicted in the FILM do not depict malice, jealousy, anger or hatred, but, it is a healthy criticism which reflects",,,
social realities of its time in Varanasi. There is real freedom of expression and speech in the said Pappuâ€s Tea Shop which its inhabitants,,,
utilize regularly with their unique style, peppered with humour and loving expletives as are very common to the place where the story of the",,,
FILM originates. Overall, the central theme of the FILM as stated above which has been depicted in a creative manner refers to some events",,,
of 1989 and 1990 such as Ram Janmabhoomi movement and Mandal Commission and it is obvious from the very contents and debates,,,
depicted in the FILM that the characters of the FILM are a group of highly patriotic individuals who believe in healthy debates. Further, a",,,
very important scene in the FILM clearly depicts a scenario, wherein, the regular group of persons who meet at the said Tea Shop have a",,,
healthy and peaceful debate with a Muslim character in the FILM and the complete discussion in this scene is enough to depict the FILM is,,,
bent towards promoting communal harmony and not communal disharmony or disturb the peace of people. All discussions in the FILM,,,
depict healthy mutual logical debates which depict the views of several persons from both sides of the coin and balance out the same in a,,,
manner that the same cannot be derogatory to humans, cult, culture, religion or mythology in any manner.",,,
That people of Assi (a locality depicted in the said FILM), participating in debates over a cup of tea are having diverse political views",,,
and they are of all political hues and colour, but, there is under current of unity as society. They fiercely debate, the issue troubling the",,,
discussing parties and the Nation “India†without malice and any hatred that, makes people of Assi and Pappu ki Dukan a unique",,,
society and place in the whole of Banaras and India, which represent “Unity in diversity†of India.",,,
It is submitted that debates, dialogues, discussions (known as vada in Sanskrit language) depicted in the FILM were the quintessential",,,
of Indian spirit, enabling and promoting the growth of different philosophical and knowledge systems of India. It percolated deep into our",,,
mindset and enriched the moral, ethical, religious and socio-cultural edifice of anything that was essentially Indian in nature. It subsists on",,,
diversity and its tradition envisages pluralism. Debates, dialogues, discussions involved verbal duals, attacks and even violence of speech,",,,
and all major religious systems-old or modem-were parties to it.â€,,,
Since the Cinematograph Act, 1952 (hereinafter referred to as “the Actâ€) operates in the realm of a reasonable restriction imposed by the",,,
State, in terms of Article 19(2) of the Constitution of India, on the fundamental right of freedom of speech and expression, it would be appropriate to",,,
examine some of the relevant provision thereof as well as the guidelines framed thereunder:,,,
Section 5A of the Act reads as under:-,,,
“5A. Certification of films â€" (1) If, after examining a film or having it examined in the prescribed manner, the Board considers that-",,,
(a) the film is suitable for unrestricted public exhibition, or, as the case may be, for unrestricted public exhibition with an endorsement of",,,
the nature mentioned in the proviso to clause (i) of sub-section (1) of section 4, it shall grant to the person applying for a certificate in",,,
respect of the film a “U†certificate or, as the case may be, a “UA†certificate, or",,,
(b) the film is not suitable for unrestricted public exhibition, but is suitable for public exhibition restricted to adults or, as the case may be, is",,,
suitable for public exhibition restricted to members of any profession or any class of persons, it shall grant to the person applying for a",,,
certificate in respect of the film an “A†certificate or, as the case may be, a “S†certificate; and cause the film to be so marked in",,,
the prescribed manner.â€,,,
Section 5B of the Act lays down the principles for guidance in certifying films and runs as under:-,,,
5B. Principles for guidance in certifying films.(1) 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 [the sovereignty and integrity of India] the security of",,,
the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to",,,
incite the commission of any offence.,,,
(2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out",,,
the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.â€,,,
The guidelines framed by the Central Government in terms of Section 5B(2) of the Act to achieve the objects of the Act inter alia lay down that,,,
CBFC shall ensure that:-,,,
“(i) anti-social activities such as violence are not glorified or justified;,,,
(ii) the modus operandi of criminals, other visuals or words likely to incite the commission of any offence are not depicted;",,,
(iii) scenes â€",,,
(a) showing involvement of children in violence as victims or perpetrators or as forced witnesses to violence, or showing children as being",,,
subjected to any form of child abuse.,,,
(b) showing abuse or ridicule of physically and mentally handicapped persons; and,,,
(c) showing cruelty to, or abuse of animals, are not presented needlessly",,,
(iv) pointless or avoidable scenes of violence, cruelty and horror, scenes of violence primarily intended to provide entertainment and such",,,
scenes as may have the effect of desensitising or dehumanising people are not shown;,,,
(v) scenes which have the effect of justifying or glorifying drinking are not shown;,,,
(vi) scenes tending to encourage, justify or glamorise drug addiction are not shown;",,,
(a) scenes tending to encourage, justify or glamorise consumption of tobacco or smoking are not shown;",,,
(vii) human sensibilities are not offended by vulgarity, obscenity or depravity;",,,
(viii) such dual meaning words as obviously cater to baser instincts are not allowed.,,,
(ix) scenes degrading or denigrating women in any manner are not presented;,,,
(x) scenes involving sexual violence against women like attempt to rape, rape or any form of molestation or scenes of a similar nature are",,,
avoided, and if any such incidence is germane to the theme, they shall be reduced to the minimum and no details are shown.",,,
(xi) scenes showing sexual perversions shall be avoided and if such matters are germane to the theme, they shall be reduced to the minimum",,,
and no details are shown.,,,
(xii) visuals or words contemptuous of racial, religious or other groups are not presented.",,,
(xiii) visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitude are not presented.",,,
(xiv) the sovereignty and integrity of India is not called in question;,,,
(xv) the security of the State is not jeopardized or endangered.,,,
(xvi) friendly relations with foreign States are not strained;,,,
(xvii) public order is not endangered,,,
(xviii) visuals or words involving defamation of an individual or a body of individuals, or contempt of court are not presented",,,
Explanation: Scenes that tend to create scorn, disgrace or disregard of rules or undermine the dignity of court will come under the term",,,
“Contempt of Court†and,,,
(xix) National symbols and emblems are not shown except in accordance with the provisions of the Emblems and Names (Prevention of,,,
Improper Use) Act, 1950 (12 of 1950).â€",,,
In the present case the Board has relied upon guidelines 2(ii)(vi)(vii)(ix)(xii)(xviii) (underlined hereinabove) for denying the certification of the,,,
subject film and Guideline 3(i) which stipulates that the Board of Film Certification shall also ensure that the film inter alia is judged in its entirety from,,,
the point of view of its overall impact.,,,
As noticed above, the FCAT in its order has held that the film deals with both political and religious issues which are sensitive in nature and",,,
therefore the film in its present format may require certain modifications. It has directed introduction of a disclaimer as well as certain cuts prior to,,,
submission of the film for a review.,,,
The petitioner rendered an explanation/clarification with regard to the each of the cuts/excisions/modifications directed by FCAT in the following,,,
manner:-,,,
Cuts/Excisions/Modifications,,,
S.No.,"Cuts/modifications/Exci
sions",Explanation/Clarification,Judgment
1.,"Delete the dialogue of
Savitri‟s neighbour
“Tumhare gharwale
langot ke pakke hai
na†and “Dono
tango ke beech meinâ€","“Langot ka pakka
hona‟ is a popular phrase in
Hindi and used in Hindi
heartland. It means man of
character.
It is clarified Taang†is not
“Jaanghâ€. There are
several references in
Upanishads regarding
vulva and vagina. The
dialogue of Ashwamedh
yagya is provocative and
obscene still are accepted
as part of our rituals. The
poetry of Kalidas explicitly
depicts the union of Shiva
and Parvati. There are
plenty of classical Sanskrit
poetry depicting love and
erotic art.
[Please note that we are
seeking a certificate under
category ‘A’.","K.A. Abbas vs,
Union of India &
Anr.,
(1970) 2 S.C.C.
780.
[Para 49 and Para
50]
Bobby  Art
International, Etc
vs Om Pal Singh
Hoon & Ors
AIR 1996 SC 1846
2.,"Reduce to flash the love
making scene of Indian
man and foreign girl.","India has adorned erotic
sculptures on temple walls.
Reducing the length or
reducing it to flash does not
change the content of the
scene. Obscenity cannot be
decided on the length of the
scene. We would like to
mention here a film Heat
and Dust where the prince
or the king thrust his hand in
the undergarment of the
foreign actress (the prince
role was played by shashi
kapoor). Please refer to the
matter of bond kissing his
girls in films or making love in
his films. India has produced
literature on art of love
making â€" Kamasutra, kok
shastra, kuttanimatam are the
revered literature of India.
[Please note that we are
seeking a certificate under
category ‘A’.","Bobby  Art
International Etc
vs. Om Pal Singh
Hoon & Ors AIR
1996 SC 1846
3.,"At 08:03, Delete the word
“Maroge‟ from the
dialogue “Brahmano
ki maroge.","It is an expression used by a
brahmin priest reflecting
current situation where
Dharmanath pandey a
Brahmin himself is against
Brahmin. It is frequently used
in television and radio.
Bajate raho is one such
example.","Phantom Films
Pvt. Ltd. and Anr
vs The Central
Board of
Certification 2016
(4) ABR 593
[Para 60]
4.,"At 14:20, Delete the word
“Pichwade‟","The same word has been
used in many Hindi films.
(e.g. saat ucchakke)","Director General,
Directorate
General  of
Doordarshan and
Ors. vs Anand
Patwardhan &
Anr
AIR 2006 SC 3346
[Para 13 and Para
14]
5.,"At 11:56, Delete the word
“Rashtra‟ from
“Rashtrabhasha‟
from
the dialogue “Yeh Assi
ki Rashtra Bhasha Hai‟","It is the exact dialogue from
the novel kashi ka assi. It is
in no way derogatory or hurt
the sensibilities of the
audience.","S. Rangarajan v.
P. Jagjivan Ram
[1989] 2 SCR 204
6.,"At 15:00, delete the word
“Bhosdike‟ said by
man dressed as Shiva
while talking to Panditji
at the Ghat and wherever
else.","Bhosadi ke has been used in
several Hindi films. He is not
shiva here, he is an imposter.
He is talking as bahrupiya, a
person who
earn his livelihood.","Ajay Gautam V.
Union of India
AIR 2015 Delhi 92
[Para
9, 10, 11 and 12]
,,,
7.,"At 45:00, in the love
making scene delete
visual of man
feeling/touching woman
between her legs.","These scenes are common in
movies with category “A‟
certificate and in no
circumstance promotes
obscenity or depicts vulgarity.
[Please note that we are
seeking a certificate under
category ‘A’.]","Bobby  Art
International, Etc
vs Om Pal Singh
Hoon & Ors AIR
1996 SC 1846
8.,"Delete the
conversation/scene
where suggestion is made
to remove the Shiv temple
and make a latrine there.
Further, also remove the
scenes taking away the
Shiv idol and putting the
same at various places.","This is the essence of the
film. The play based on it has
been performed in kashi and
all over the country by
veteran theatre director usha
ganguli, 125 shows have been
performed. Play with the
same theme was the only
entry from Asia in Stutgart
theatre festival. Please refer
to the comment of Hon‟ble
PM of India â€" Toilet first
temples later and subsequent
reaction of Shri Pravin
Togadia. The matter is
available on the internet. This
is the foundation of the film
that a man in need will do
any compromise. Even faith
would be compromised in
struggle to survive. Every
place is created by god that is
the final argument given by a
resident of Assi.","S. Rangarajan v.
P. Jagjivan Ram
[1989]2SCR204
[Para 21]
9.,"Mute the word
“Babri‟ wherever it
occurs.","Babri has a historical
connotation. We cannot
remove this page of history
from consciousness of India
and our political and social
and historical discourses. It is
noteworthy that films like
chandani bar and saat khoon
maaf have shown babri
falling.","Lakshmi Ganesh
Films and Ors. vs
Government of
A.P. And Ors.
2006 (4)
ALD 374 [Para 82]
10.,"Mute the words Bhajpa,
Advani, Atal Bihari,
Mulayam, Laloo‟ etc.
wherever they occur.","There is word “Laluaaâ€
and not Laloo, There is word
“Mulaima†and not
mulayam and only surnames
have been used. Further,
these names are not shown in
a derogatory manner.
Further, movies like Happy
bhaag jayegi mentions
“Jinnah†and several
other names like Ghalib
And “Phas gaye re
obama‟
mentions name of American
president.","F.A. Picture
International vs
Central Board of
Film v CBFC &
Anr. [Para 13]
It may also be expedient to examine the legal position with regard to Certification of Films keeping in view the dynamics of the society and the,,,
reasonable restrictions on the fundamental right of Freedom of Speech and expression.,,,
In F.A.Pictures International Vs. CBFC and Anr. AIR 2005 BOM 145, the Court inter alia held as under:-",,,
“6A. ...........Films have always been regarded as constituting a powerful medium of expression. Succeeding generations bred on a diet of,,,
the electronic media may well cause a sense of spondaic to those who decry the loss of the habit of reading........,,,
Artists, writers, play rights and film makers are the eyes and the ears of a free society. They are the veritable lungs of a free society",,,
because the power of their medium imparts a breath of fresh air into the drudgery of daily existence. Their right to communicate ideas in a,,,
medium of their choosing is as fundamental as the right of any other citizen to speak. Our Constitutional democracy guarantees the right of,,,
free speech and that right is not conditional upon the expression of views which may be palatable to mainstream thought. Dissent is the,,,
quintessence of democracy. Hence, those who express views which are critical of prevailing social reality have a valued position in the",,,
constitutional order. History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned,,,
assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to,,,
clamp down on the free expression of opinion must hence be frowned upon.,,,
***** ***** *****,,,
Films which deal with controversial issues necessarily have to portray what is controversial. A film which is set in the backdrop of,,,
communal violence cannot be expected to eschew a portrayal of violence. The producer of a film on the Second World War cannot be true,,,
to his conscience if the horrors of war not brought home by the film. The film “Life is Beautiful†constitutes a contemporary master,,,
piece as much for its moving depiction of the atrocities of the period as much as in the ability of the director to find humor in the lives of,,,
those on the verge of extinction in gas chambers. The director has available to him all the tools of trade. Satire, humor and the ability to",,,
shock each one out of the mundane levels of existence is what embellishes are forms. The Constitution protects the right of the artist to,,,
portray social reality in all its forms. Some of that portrayal may take the form of questioning values and mores that are prevalent in society.,,,
The power of literature lies in the ability of the writer to criticise commonly held beliefs and ordinary human foibles. Equally, a writer,",,,
producer and director of a film have the discretion to depict the horrors of social reality. In a film based on a theme of communal violence it,,,
would be most inappropriate to expect that the film should eschew a reference to what has taken place.,,,
Both the certifying authority and the Tribunal were of the view that certain characters and incidents are identifiable with actual,,,
personalities and individuals. This again is a most impermissible ground to reject the certification of a film. The protection of the,,,
Constitution does not extend only to fictional depictions of artistic themes. Artist, film makers and play rights are affirmatively entitled to",,,
allude to incidents which have taken place and to present a version of those incidents which according to them represents a balanced,,,
portrayal of social reality. To say that the violence which took place in the stage of Gujarat is a “live issue†and a “scar on national,,,
sensitivity†can furnish absolutely no ground for preventing the exhibition of the film. No democracy can countenance a lid of suppression,,,
on events in society. The violence which took place in the State of Gujarat has been the subject-matter of extensive debate in the press and,,,
the media and it is impermissible to conjecture that a film dealing with the issue would aggravate the situation. On the contrary, stability in",,,
society can only be promoted by introspection into social reality, however grim it be. Ours, we believe, is a mature democracy. The view of",,,
the censor does no credit to the maturity of a democratic society by making an assumption that people would be led to disharmony by a free,,,
and open display of a cinematographic theme. The certifying authority and the Tribunal were palpably in error in rejecting the film on the,,,
ground that it had characters which bear a resemblance to real life personalities. The constitutional protection under Article 19(1)(a) that a,,,
film maker enjoys is not conditioned on the premise that he must depict something which is not true to life. The choice is entirely his. Those,,,
who hold important positions must have shoulders which are broad enough to accept with grace a critique of themselves, critical appraisal",,,
is the cornerstone of democracy and the power of the film as a medium of expression lies in its ability to contribute to that appraisal.,,,
***** ***** *****,,,
The Supreme Court had occasion to revisit the issues which arise before the Court when an appeal was carried against the judgment of,,,
the Delhi High Court in relation to the film “Bandit Queenâ€. In {Bobby Art International versus Om Pal Singh Hoon), Mr Justice",,,
S.P.Bharucha (as the learned Chief Justice then was) held that a film “that illustrates the consequences of a social evil necessarily must,,,
show that social evil.†No film that extols the social evil or encourages it is permissible, but a film that carries the message that the social",,,
evil is evil cannot be made impermissible on the ground that it depicts the social evil.†Dealing with the theme of the film, the Court held",,,
thus:,,,
“First the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men.",,,
The exposure of her breasts and genitalla to those men is intended by those who strip her to demean her. The effect of so doing upon her,,,
could hardly have been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinema goers lust,,,
but to arouse in him sympathy for the victim and disgust for the perpetrators...... “Bandit Queen†tells a powerful human story and to,,,
that story the scene of Phoolan Deviâ€s enforced naked parade is central. It helps to explain why Phoolan Devi became what she did : her,,,
rage and vendetta against the society that had heaped indignities upon her.â€,,,
The Supreme Court in K.A.Abbas Vs. Union of India & Another: (1970) 2 SCC 78 0elucidated the task and role of the censors in the following,,,
terms:,,,
“50. We may now illustrate our meaning how even the items mentioned in the directions may figure in films subject either to their artistic,,,
merit or their social value over-weighing their offending character. The task of the censor is extremely delicate and his duties cannot be the,,,
subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep,,,
within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. our",,,
standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us,,,
determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in,,,
favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We,,,
must not look upon such human relationships as banned in toto and forever from human thought and must give scope for talent to put them,,,
before society. The requirements of art and literature include within themselves- a comprehensive view of social life and not only in its ideal,,,
form and the line is to be drawn where the average man 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 womanâ€s legs in everything, it cannot be helped. In our",,,
scheme of things 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,,,
concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censors",,,
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 the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his",,,
own eyes. No one after viewing these episodes would think that patricide or incest with oneâ€s own mother is permissible or suicide in such,,,
circumstances or tearing out oneâ€s own eyes is a natural consequence. And yet if one goes by the letter 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. If that were",,,
so Verrier Elwynâ€s Phulmat of the Hills or the same episode in Henrysonâ€s Testament of Cresseid (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 sack 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 theme without true history ? Rape in all its nakedness may be objectionable but Voltaireâ€s Candide would†be,,,
meaningless without Cunegondeâ€s episode with the soldier and the story of Lucrece could never be depicted on the screen.,,,
Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censorâ€s scissors but how the theme is",,,
handled by the producer. It must, however, be remembered that the, cinematograph is a powerful medium and its appeal is different. The",,,
horrors of war as depicted in the famous etchings of Goya do not horrify one so much as the same scenes rendered in colour and with,,,
sound and movement, would do. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the",,,
Kamasutra but a documentary from them as a practical sexual guide would be abhorrent.â€,,,
Phantom Films Private Limited Vs. The Central Board of Certification, 2016 (4) ARB 593, the Bombay High Court elaborated the concept of",,,
examination of the work as a whole by the Censor Board in the following words:,,,
“43. Once the test is that the work must be seen as a whole and viewed in entirety, then, it will not be permissible to pick and choose",,,
isolated scenes or events or characters. It will not be permissible to pick up some lines from some scenes and few dialogues and read them,,,
out of context. We have noted that there is no denial of the fact that “Udta Punjab†is a film depicting the menace of drugs. The,,,
backdrop and setting chosen is of the State of Punjab. It is open to a creative person to choose a particular setting and backdrop and move,,,
his story forward with due regard to the same. It is entirely for him to choose the underlying theme and story line. The creative freedom,,,
envisages presentation of certain works as per the choice of the maker or writer. None can dictate to him as to how he should produce or,,,
make his film and what should be the contents thereof. One acting as a Board of Film Certification is not obliged to censor films. Though,,,
the word J.V.Salunke, PA Judgment - WPL.1529.2016.doc “censor†is not to be found in the Cinematograph Act, 1952, the common",,,
parlance and dictionary meaning of that word means “an official authorised to examine printed matters, films, news etc. before public",,,
release and to suppress any part thereof on the ground of obscenity, vulgarity etcâ€. It is in that sense the word has been understood by the",,,
Act. It refers to a official performing a statutory duty of certifying films. The word also means “making deletions and changesâ€, but that",,,
is inbuilt in the power of certification of films by the board. That is but a part and parcel of the larger power. However, that is not the",,,
essential function.,,,
Else, every certificate application can be simply refused or granted conditionally by applying a formula already evolved.",,,
Therefore, if by law the board is empowered to make changes or deletions or cuts and these are the words employed in the impugned order,",,,
then, that power must be exercised consistent with the constitutional guarantee and the decisions of the Honâ€ble Supreme Court of India.",,,
The Honâ€ble Supreme Court of India, while upholding the Act, has held that it tries to achieve a balance so that creative freedom is not",,,
unnecessarily curbed.â€,,,
With regard to the objection to use of swear words in a film, the Supreme Court of Indian in Bobby Art International etc. Vs. Om Pal Singh Hoon",,,
& Others : AIR 1996 SC 1846 held as under:,,,
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.â€",,,
The Principles that emerge from the above judgments can be summarised as under:,,,
i. [Films are regarded as constituting a powerful medium of expression.,,,
ii. Artists, writers, play rights and film makers are the eyes and the ears of a free society. They are the veritable lungs of a free society",,,
because the power of their medium imparts a breath of fresh air into the drudgery of daily existence.,,,
iii. Their right to communicate ideas in a medium of their choosing is as fundamental as the right of any other citizen to speak.,,,
iv. Our Constitutional democracy guarantees the right of free speech and that right is not conditional upon the expression of views which,,,
may be palatable to mainstream thought. Dissent is the quintessence of democracy. Hence, those who express views which are critical of",,,
prevailing social reality have a valued position in the constitutional order.,,,
v. Dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the,,,
alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free,,,
expression of opinion must hence be frowned upon.,,,
vi. Films which deal with controversial issues necessarily have to portray what is controversial.,,,
vii. The director has available to him all the tools of trade. Satire, humor and the ability to shock each one out of the mundane levels of",,,
existence is what embellishes are forms.,,,
viii. The Constitution protects the right of the artist to portray social reality in all its forms. Some of that portrayal may take the form of,,,
questioning values and mores that are prevalent in society. The power of literature lies in the ability of the writer to criticise commonly held,,,
beliefs and ordinary human foibles. Equally, a writer, producer and director of a film have the discretion to depict the horrors of social",,,
reality.,,,
ix. It is impermissible ground to reject the certification of a film on the ground that certain characters and incidents are identifiable with,,,
actual personalities and individuals. The protection of the Constitution does not extend only to fictional depictions of artistic themes. Artist,",,,
film makers and play rights are affirmatively entitled to allude to incidents which have taken place and to present a version of those,,,
incidents which according to them represents a balanced portrayal of social reality. No democracy can countenance a lid of suppression on,,,
events in society.,,,
x. Stability in society can only be promoted by introspection into social reality, however grim it be.",,,
xi. The constitutional protection under Article 19(1)(a) that a film maker enjoys is not conditioned on the premise that he must depict,,,
something which is not true to life. The choice is entirely his. Those who hold important positions must have shoulders which are broad,,,
enough to accept with grace a critique of themselves, critical appraisal is the cornerstone of democracy and the power of the film as a",,,
medium of expression lies in its ability to contribute to that appraisal.,,,
xii. 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.] [F.A.Pictures International Vs. CBFC and Anr (Supra)],,,
xiii. [The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior,,,
ratiocination. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area,,,
for creative art to interpret life and society with some of its foibles along with what is good.,,,
xiv. The requirements of art and literature include within themselves- a comprehensive view of social life and not only in its ideal form and,,,
the line is to be drawn where the average man 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, it",,,
cannot be helped.,,,
xv. 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 concern, however, to",,,
prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censors scissors.] [K.A.Abbas Vs.,,,
Union of India & Another (supra)],,,
xvi. [Once the test is that the work must be seen as a whole and viewed in entirety, then, it will not be permissible to pick and choose isolated",,,
scenes or events or characters. It will not be permissible to pick up some lines from some scenes and few dialogues and read them out of,,,
context.,,,
xvii. It is open to a creative person to choose a particular setting and backdrop and move his story forward with due regard to the same. It,,,
is entirely for him to choose the underlying theme and story line. The creative freedom envisages presentation of certain works as per the,,,
choice of the maker or writer. None can dictate to him as to how he should produce or make his film and what should be the contents,,,
thereof.] [Phantom Films Private Limited Vs. The Central Board of Certification (supra)],,,
xviii. [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.,,,
xix. 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.] [Bobby Art International etc. Vs. Om Pal Singh Hoon & Others (supra)],,,
Examining the underlying theme and storyline of the subject film “Mohalla Assi†in context of the above principles, as contended by the",,,
petitioner, the film is a poignant tale of how culturally conscious people, trying to live with righteous means and trying to protect traditions and cultural",,,
heritage, are being marginalized and struggling for their existence and on the other hand those who spare no foul means are becoming successful. The",,,
story revolves around the cultural degradation, that is threatening present day Banaras and issues that needs to be looked into. The FILM depicts that",,,
India is going through times of turbulence. The FILM depicts how the several characters of the FILM come to accept the realities of their existence,,,
and time. The FILM is a story of the Cultural and Spiritual capital of India-Banaras and its Mohalla Assi. ‘Pappu ki dukaan’ in Mohalla Assi,,,
represents the same tradition of dialogues, debates and discussion with their unique humour. Overall, the central theme of the FILM refers to some",,,
events of 1989 and 1990 such as Ram Janmabhoomi movement and Mandal Commission and the debates depicted in the FILM show that the,,,
characters of the FILM are a group of highly patriotic individuals who believe in healthy debates.,,,
The film is stated to be based on works and material related to the book ‘Kashi Ka Assi’ by Shri Kashinath Singh, according to whom, the",,,
novel is an account of debates that took place in a popular tea shop of Assi in Banaras called ‘Pappu ki Dukah’. It is claimed that that ‘Kashi,,,
ka Assi’ had such an impact on its readers that special editions were published on critique of ‘Kashi Ka Assi’ and several articles were,,,
written by scholars in the Hindi Heartland praising the unique work of Shri. Kashinath Singh. Till date, there have been 12 editions of the said novel",,,
(Kashi ka Assi) published in the last 10 years after its first publication in year 2006 as a collection of stories/novel. Special editions on critique of the,,,
novel have also been published in several literary magazines including Banas - a literary magazine which clearly reflects the popularity of the novel,,,
among the public at large. ‘Kashi Ka Assi’ has also been interpreted in the visual medium as Dramas by prominent theatre directors of the,,,
country.,,,
The proposed cuts by FCAT need to be examined in the light of the central theme and principles mentioned above. It may also be kept in mind that,,,
the Petitioner has sought a certificate under category ‘A’ i.e. restricted to Adult audience.,,,
The proposed cuts at serial no. 1 (Delete the dialogue of Savitriâ€s neighbour “Tumhare gharwale langot ke pakke hai na†and “Dono,,,
tango ke beech meinâ€), serial no. 3 (At 08:03, Delete the word “Maroge†from the dialogue “Brahmano ki maroge) and serial no. 4 (At 14:20,",,,
Delete the word “Pichwadeâ€) when viewed in the overall context of the film do not offend sensibility or morality. The manner of use of the,,,
dialogues is such that they merge with the context. The words have not been used in a vulgar or obscene manner.,,,
The cuts proposed at Serial No. 2 (Reduce to flash the love making scene of Indian man and foreign girl.) and serial No. 7 (At 45:00, in the love",,,
making scene delete visual of man feeling/touching woman between her legs.) are in fact only one scene and not two. The said scene is contextual. It,,,
does not in any manner portray obscenity or depict vulgarity. Rather the scene have been handled delicately; while depicting the context, the director",,,
has refrained from crossing the threshold of decency.,,,
Cut proposed at serial No. 5 (At 11:56, Delete the word “Rashtra†from “Rashtrabhasha†from the dialogue “Yeh Assi ki Rashtra",,,
Bhasha Haiâ€) relates to the use of the word ‘Rashtrabhasha†in the dialogue. Though the literal meaning of the word “Rashtrabhasha†is,,,
National Language, however in the film the word is used in the sentence “Yeh Assi ki Rashtra Bhasha Haiâ€. The word has been used in the",,,
context of an ordinarily spoken language of ‘Assi’. The word has not been used in the context of a national language. The character in the film,,,
is using the said word to describe a universally accepted and spoken language of the people of ‘Assi’. It is apparent from the depiction that the,,,
character is loosely using it only in the context of ‘Assi’.,,,
Objection raised to serial no. 6 (At 15:00, delete the word “Bhosdike†said by man dressed as Shiva while talking to Panditji at the Ghat and",,,
wherever else.) is factually incorrect. The character playing the role of a Bahrupiya (an impressionist in the traditional performing arts of India) and,,,
dressed as Shiva does not use the word ‘Bhosdike’. Rather the word is spoken by Panditji to him. Though the objection taken is factually,,,
incorrect, however, the word spoken by him or to him could offend the religious sentiments of some sections of the society. It is observed that the said",,,
word is not necessary for the central theme of the film. The said word in the scene, therefore should be deleted, muted or bleeped.",,,
The cut proposed at serial no. 8 (Delete the conversation/scene where suggestion is made to remove the Shiv temple and make a latrine there.,,,
Further, also remove the scenes taking away the Shiv idol and putting the same at various places.). The said scenes are the very essence of the film.",,,
The story of the film revolves around the cultural degradation, that it is threatening present day Banaras and issues that needs to be looked into. The",,,
FILM depicts how several characters of the FILM come to accept the realities of their existence and time and as to how the people of Banaras are,,,
making space in their houses by replacing temples to make accommodation available for renting to tourists to earn money for their very subsistence.,,,
How they are willing to compromise, even with faith, in their struggle to survive.",,,
Objections at serial No. 9 (Mute the word “Babri†wherever it occurs.) and serial No. 10 (Mute the words Bhajpa, Advani, Atal Bihari,",,,
Mulayam, Laloo†etc. wherever they occur.) are also not sustainable. The film depicts the contemporaneous period of the demolition of the Babri",,,
Masjid. However, the depiction of the same and the use of the word Babri and the reference to certain political leaders is not in any derogatory",,,
manner.,,,
In addition FCAT has directed that the following disclaimer be incorporated at the beginning of the film which should be shown for a minimum of,,,
10 seconds and the disclaimer should be visually prominent and in audio format also in both English and Hindi,,,
“Disclaimer,,,
The views expressed by individuals in the film are solely their own views and the same are not intended to hurt/defame any person, caste,",,,
community, religion, institution, organization or nationalityâ€",,,
The incorporation of the disclaimer does not warrant any interference as it does not prejudice the petitioner in any manner.,,,
The Judgment in the case of B.K. Adarsh Vs. Union of India : AIR 1990 AP 100 relied upon by learned counsel for the Respondent does not,,,
further the case of the Respondents. The said judgment was cited to contend that merely because other films, with more or equal obscenity and",,,
pornography, have been certified for exhibition, it does not automatically entitle the producer of a film for certification under section 5A for exhibition.",,,
As noticed above, when the subject film is examined in the light of the principles for examination of the film as a whole, the alleged offending",,,
scenes do not militate against the central theme of the film rather, they aid in conveying the message behind the predominant theme of the film. In",,,
B.K. Adarsh (supra), itself the court has held; “it is the duty of the Judge to consider in each case whether a particular book, article or a",,,
motion picture is obscene. The offending portion or parts are also to be independently considered. In that context the tests to be laid down,,,
are the predominant theory or theme taken as a whole whether appeals to prominent interest according to the contemporary standards of,,,
the reasonable average man; whether the motion picture is not saved by any redeeming social values; whether it is patently offensive,,,
because it is opposed to contemporary standards and whether the story, incident or the dialogue likely to impair the moral standards of the",,,
public by extenuating vice or crime or depraving moral standards was it likely to give offence to reasonable minded cinema audience; what,,,
effect would it have on the minds of the general public including adolescent young children, etc. and whether it is portrayed or",,,
photographed beyond decency or morality. The decency or indecency of a particular picture, sequence or scene cannot depend upon the",,,
nature of the subject matter, but the question is one of the manner of handling with the subject matter and sociological or ethical interest or",,,
message which the film conveys to the reasonable man. The approach of the court would be from the perspective of social pathological,,,
phenomenon with a critical attitude and perform the role of a clinical doctor keeping the balance between the felt necessities of the time and,,,
social consciousness of the progress of the society eliminating the evils and propagating for the cultural evolution literary taste and pursuit,,,
of happiness in social relation, national integration and solidarity of the nation and the effect of the film thereon.â€",,,
The Judgments in the case of A. Arulmozhi Vs. Government of India : AIR 2006 Mad 49 and P. Jagajeevan Vs. Government of India : AIR 1989,,,
Mad 149, relied upon by learned counsel for the Respondents also enunciate the broad principles for examination of films by the censor board,",,,
however they are not applicable, because assessment of each film would have to be made, keeping in mind the central theme of the film, the handling",,,
of the subject and sociological or ethical interest or message which the film conveys to the a man.,,,
In view of the above discussion, the Writ Petition is allowed in part. The impugned orders are set aside. The cuts proposed by FCAT at serial no.",,,
1 to 5, 7 to 10 are quashed. The cut at serial no. 6 (At 15:00, delete the word “Bhosdike†said by man dressed as Shiva while talking to Panditji at",,,
the Ghat and wherever else.) is sustained, however in terms of the observations with regard to the same. The incorporation of disclaimer is also",,,
sustained. The film “Mohalla Assi†is directed to be certified accordingly as restricted in its exhibition to the adult audience. The Respondent shall,,,
issue the “A†certificate within a period of one week from today.,,,
Dasti under signatures of Court Master.,,,