SWAMI AGNIVESH vs UNION OF INDIA & ORS.

WP(C) No.1557/2018

This writ petition seeks directions to the Central Board of Film Certification, to take ""appropriate steps to stop glorification of the practice of

''Sati'' by deleting the relevant scenes from the film ""Padmaavat"".

The petition is premised on two articles, one by Ms. Charu Gupta in the Indian Express dated 31st of January 2018 captioned ""United in

misogyny"" and another article written by an actor Ms. Swara Bhasker in the Wire captioned ""At the End of Your Magnum Opus ... I Felt Reduced

to a Vagina - Only"". A copy of this article, which stands handed over to this court, would show that it was written on the 27th of January 2018.

The petitioner submits that that after reading these two articles relating to the film Padmaavat, he himself wanted to check the veracity of the

contentions made therein regarding glorification of the practices ''Sati'' and ''Jauhar'' and therefore, personally watched the film at the PVR Plaza in

New Delhi. Having seen the movie, the petitioner is convinced that the abhorrent practice of ''Sati'' has been glorified out of proportion in the said

movie.

The present writ petition, filed against the Union of India (Ministry of Information and Broadcasting) (respondent no.1); Delhi Police

(respondent no.2); Central Board of Film Certification (respondent no.3); Ajit Andhare, Producer, Padmaavat (respondent no.4) and Mr. Sanjay

Leela Bhansali (Director & Producer - Padmaavat) (respondent no.5), seeks the following prayers :

(i) issue a writ of mandamus or any other appropriate writ/order/direction directing the Respondent No.3 to take appropriate steps to stop

glorification of the practice of ''Sati'' by deleting the relevant scenes from the film ""Padmaaavat"" and

(ii) issue a writ of mandamus or any other appropriate writ/order/direction directing the State Authorities to ensure that the scenes promoting and

glorifying the act of ''Sati'' are not screened in public; and

(iii) restrain the Respondents from continuing to glorify the act of ''Sati'' through promotion and further broadcast of the scenes relating to such act

in the film ""Padmaavat""; and

(iv) direct the Respondent No.2 to immediately register F.I.R. against the Respondents No. 4 and 5 on the basis of the complaints filed by the

petitioner;...

The making and exhibition of this film has had a tumultuous background and history. Different aspects thereof have been the subject matter of

challenges before the Supreme Court of India. Even before the Board of Film Certification, exercising jurisdiction under the Cinematograph Act,

1952, had processed the application of the film producers for the requisite certification, a writ petition being W.P.(Crl.)No.191/2017 was filed

before the Supreme Court of India by one Manohar Lal Sharma, a practicing advocate, which was titled Manohar Lal Sharma v. Sanjay Leela

Bhansali & Ors. In this writ petition, a prayer was made seeking prohibition of exhibition of the film ''Padmaavat'' in other countries without

obtaining the requisite certificate from the Central Board of Film Certification and issuance of writ of mandamus to the Central Bureau of

Investigation (CBI), impleaded as respondent No.5 therein, to register an FIR against the respondent Nos.1 and 2 therein and their team members

for commission of offences punishable under Sections 153A, 295, 295A, 499 and 500 of the Indian Penal Code, 1860 read with Sections 4 and 7

of the Indecent Representation of Women (Prohibition) Act, 1986 and a further direction to investigate and prosecute them in accordance with

law.

It appears that this very Manohar Lal Sharma had earlier instituted W.P.(Crl.)No.186/2017 when the Supreme Court took notice of the fact

that the application for grant of requisite certificate was pending before the Board of Film Certification and consequently, disposed of the writ

petition by an order dated 20th of November 2017 observing as follows :

In the course of hearing, we have been apprised that the film in question, i.e., ''Padmavati'' has not yet received the Certificate from the Central

Board of Film Certification.

In view of the aforesaid, our interference in the writ petition will tantamount to pre-judging the matter which we are not inclined to do. The writ

petition is accordingly disposed of.

The court had taken exception to the filing of the writ petition even before the Board of Film Certification, a statutory authority, had taken a

decision in the matter on the application for the certification.

W.P.(Crl.)No.191/2017 was thereafter filed by Manohar Lal Sharma on the apprehension that the first respondent was planning to exhibit the

film in other countries which had an international market and hence the above prayers for registration of the case, investigation and prosecution

thereof by the CBI in accordance with law. This writ petition stands dismissed by an order dated 28th of November 2017 by the Supreme Court

observing, so far as the commission of criminal offences are concerned, as follows :

The controversy does not end there. As stated earlier, the further prayer is for issuance of direction to the respondent no. 5 - CBI to register an

FIR against respondent Nos. 1 and 2 and their team members for offence punishable under Section 7 of the Act read with Sections 153A, 295,

295A, 499 and 500 of the Indian Penal Code read with Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. As far as

Sections 499 and 500 of the IPC is concerned, police has no role. As far as the other offences are concerned, it is unfathomable how any offence

is made out. There is no basis for this Court to direct registration of an FIR and we have no hesitation in stating that the prayer is absolutely

misconceived.

(Emphasis by us)

It is an admitted position that the necessary certification stands granted by the Board of Film Certification to the film. However, the travails of

the film Producer (respondent No.4 herein) and Director (respondent No.5 herein) did not end with these two writ petitions filed in the Supreme

Court.

Mr. Manish Mohan, Central Government Standing Counsel, who appears for the respondent no.1, has handed over a copy of the order dated

18th January, 2018 passed by the Supreme Court in W.P.(C)No.36/2018, Viacom 18 Media Private Limited & Ors. v. Union of India & Ors.

This writ petition was filed by the distributors compelled to challenge notifications/orders issued by the State Governments of Gujarat and

Rajasthan on 13th January, 2018 and 17th January, 2018 respectively prohibiting the exhibition of the film ''Padmaavat''. In the order dated 18th

January, 2018, the Supreme Court has extracted the certificate issued by the Board of Film Certification to the petitioner, which reads as follows :

After examination of the film by the members of the Examining Committee mentioned below and on the recommendation of the said Examining

Committee, the Board hereby certifies that the film is fit for public exhibition with an endorsement of caution that the question as to whether any

child below the age of 12 years may be allowed to see the film should be considered by the parents or guardian of such child, and also subject to

excision and modification listed in part II on the reverse:

ARCHANA VINEET GORE

KALAYANI DESHPANDE

NUTAN JAGDISH SAGAR

HARESH J WADHWANI

DEEPAK RAMAKANT TANDEL (E.O.)

Further certified that the excisions and modifications imposed by the Board have actually been carried out.

(Emphasis by us)

Given the nature of challenge raised in the present case, it is necessary to notice the examination and scrutiny which is undertaken by the Board

of Film Certification before issuing a certificate under the Cinematograph Act, 1952 permitting the release and exhibition of a film. As per the

scheme of the enactment, the Board of Film Certification is constituted under Section 3 of the statute. Any person desiring to exhibit any film is

required to make an application to the said Board for a certificate in respect thereof under Section 4 and the Board, may, after examining or having

the film examined, sanction or refuse to certify a film for public exhibition. The certification of films is effected under Section 5A of the statute.

For the purposes of the present consideration, the relevant portions of Sections 4 and 5A of the enactment in extenso may usefully be

extracted and read as follows:

Examination of films.-(1) Any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for a

certificate in respect thereof, and the Board may, after examining or having the film examined in the prescribed manner,-

(i) sanction the film for unrestricted public exhibition:

Provided that, having regard to any material in the film, if the Board is of the opinion that it is necessary to caution that the question as to whether

any child below the age of twelve years may be allowed to see such a film should be considered by the parents or guardian of such child, the

Board may sanction the film for unrestricted public exhibition with an endorsement to that effect; or

(ii) sanction the film for public exhibition restricted to adults; or

(iia) sanction the film for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and

theme of the film; or

(iii) direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition

under any of the foregoing clauses; or

(iv) refuse to sanction the film for public exhibition.

(2) No action under 1 [the proviso to clause (i), clause (ii), clause (iia), clause (iii) or clause (iv)] of sub-section (1) shall be taken by the Board

except after giving an opportunity to the applicant for representing his views in the matter.

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5A. Certification of films.- (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:

Provided that the applicant for the certificate, any distributor or exhibitor or any other person to whom the rights in the film have passed shall not

be liable for punishment under any law relating to obscenity in respect of any matter contained in the film for which certificate has been granted

under clause (a) or clause (b).

(2) A certificate granted or an order refusing to grant a certificate in respect of any film shall be published in the Gazette of India.

(3) Subject to the other provisions contained in this Act, a certificate granted by the Board under this section shall be valid throughout India for a

period of ten years.

(Emphasis by us).

So far as the certification of films for public exhibition is concerned, in exercise of powers conferred by sub-section 2 of Section 5B of the

Cinematograph Act, 1952, the Central Government has issued ""Guidelines for Certification of Films for Public Exhibition"" which guide the

consideration of a request for the same by the Board of Film Certification. We extract hereunder the relevant portion of Guideline 2 which has a

bearing on the present consideration :

In pursuance of the above objectives, the Board of Film Certification shall ensure that-

(i) anti-social activites such as violence are not glorified or justified;

... ... ...

(vii) human sensibilities are not offended by vulgarity, obscenity or depravity;

... ... ...

(ix) scenes degrading or denigrating women in any manner are not presented;

... ... ...

(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 attitudes are not presented;

... ... ...

(xvii) public order is not endangered;

(Emphasis by us)

In Viacom, the court had noted that the film was given U/A certificate. The Board of Film Certification has applied its mind before grant of

certificate and has left it to the sensibilities and evaluation by the parents or guardians as to whether their child below 12 years of age should be

allowed to see the film.

So far as the film itself is concerned, two disclaimers stand recorded by the Director and Producer of the film (extracted in the order of the

Supreme Court dated 18th January, 2018) which are to the following effect :

Disclaimer -I

The Film ''Padmaavat'' is inspired from the epic poem Padmavat, written by Malik Muhammad Jayasi, which is considered a work of fiction. This

Film does not infer or claim historical authenticity or accuracy in terms of the names of the places, characters, sequence of events, locations,

spoken languages, dance forms, costumes and/or such other details. We do not intend to disrespect, impair or disparage the beliefs, feelings,

sentiments of any person(s), community(ies) and their culture(s), custom(s), practice(s) and tradition(s).

Disclaimer -II

This Film does not intend to encourage or support ''Sati'' or such other practices.

(Emphasis by us)

The first disclaimer therefore, clearly informs the viewer that it is based on an epic poem Padmaavat written by Malik Muhammad Jayasi,

which is considered a work of fiction. It is declared that the film has no historical authenticity or accuracy in any of the material details and that

there is no intention to disrespect, impair or disparage the beliefs, feelings, sentiments of any person(s), community(ies) and their culture(s),

custom(s), practice(s) and tradition(s). The second disclaimer clearly declares the intent of the Director that the film in no manner intends to

encourage or support ''Sati'' or any such practice.

In view of the certification of the film by the Board of Film Certification, the protection under the proviso to Section 5A(1)(b) of the Act would

become available to the persons named.

In this background, the decisions of the State of Gujarat by the order dated 13th January, 2018 and State of Rajasthan by the order dated

17th January, 2018 to ban exhibition of the film in the respective States were assailed by Viacom 18 Media Private Limited before the Supreme

Court. The prayer for grant of an interim order was considered by the court on 18th January, 2018, when the court considered the guidelines

which are required to be kept in mind by the Board of Film Certification before grant of certification. It was directed that there shall be a stay of

the operation of the notifications and orders issued by the respondent States as well as a prohibition against other States from issuing

notifications/orders in any manner prohibiting the exhibition of the film.

It is to be noted that the certifications granted by the Board of Film Certification to the film in question as well as the orders passed by the

Supreme Court in the above writ petitions have received tremendous publicity. The making and completion of the film, its subject matter, the date

of release have all received wide publicity in every medium.

It is not disputed that as on date, the film stands released and has been exhibited in several parts of the country. This writ petition filed long

thereafter on or about the 15th of February 2018 is yet another device to interdict the exhibition of the film.

The basic contention on which this writ petition is premised is that, in the film Padmaavat, the respondent nos.4 and 5 have glorified the act of

self-immolation in one of the most elaborately choreographed ''Sati'' or ''Jauhar'' scenes in the history of Indian cinema"" which act constitutes

''glorification'' under the provisions of the Commission of Sati (Prevention) Act, 1987.

For expediency, we may extract Section 2(b) of the said enactment which defines ''glorification'' in the following terms :

Definitions.- (1) In this Act, unless the context otherwise requires.-

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(b) ""glorification"" in relation to sati, whether such sati, was committed before or after the commencement of this Act, includes, among other things.-

(i) the observance of any ceremony or the taking out of a procession in connection with the commission of sati; or

(ii) the supporting, justifying or propagating the practice of sati in any manner; or

(iii) the arranging of any function to eulogise the person who has committed sati; or

(iv) the creation of a trust, or the collection of funds, or the construction of temple or other structure or the carrying on of any form of worship or

the performance of any ceremony thereat, with a view to perpetuate the honour of, or to preserve the memory of, a person who has committed

sati;

xxx xxx xxx

(Emphasis by us)

A bare reading of the statutory provision would show that the statute refers to Sati, ""whether such Sati was committed before or after the

commencement of this Act"". Therefore, reference in Section 2(1)(b) of the statute is to an actual practice of ""Sati"" and not to a visual depiction of

an imaginary work of fiction as portrayed in the film. Section 2(1)(b)(ii) refers to ""supporting, justifying or propagating the practice of Sati in any

manner"".

As noted, at the outset, this writ petition has come after the film has received the certification under the Cinematograph Act, 1952 after

protracted litigation and a close scrutiny by the experts. Changes and excision which were directed by the Board, stand effected. The Board has

exercised its discretion carefully and not given a ''U'' certificate for unrestricted viewing but granted a ''U/A'' certification.

As on date, the film stands released as well without any complaint. The content of the film has therefore, been in public domain for a long time.

If at all the petitioner had any grievance, he could have placed the relevant material before the Board of Film Certification at an appropriate time.

We also note that the writ petitioner has placed reliance on two articles which are critical of the portrayal by the respondent nos.4 and 5 in the

film. In this regard, it would be appropriate to note that in the aforesaid order dated 18th January, 2018, the Supreme Court has extracted from an

earlier pronouncement dated 16th November, 2017 in W.P.(C)No.1119/2017, Nachiketa Walhekar v. Central Board of Film Certification &

Anr, wherein on the issue of artistic expression, the court observed as follows :

Be it noted, a film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express himself in a manner which is not

prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind. The human history records that there are

many authors who express their thoughts according to the choice of their words, phrases, expressions and also create characters who may look

absolutely different than an ordinary man would conceive of. A thought provoking film should never mean that it has to be didactic or in any way

puritanical. It can be expressive and provoking the conscious or the subconscious thoughts of the viewer. If there has to be any limitation, that has

to be as per the prescription in law.

(Emphasis by us)

Therefore, while the two persons authoring the articles relied upon by the petitioner have critiqued the film, clearly it is their view and

perception regarding the film. The petitioner is entitled to form a similar opinion and agree with them. It is apparent that at the same time, there are

several others who have considered the impact of the film from other perspectives and do not share the views the petitioner or the two authors.

Certainly writs cannot be issued against artistic works premised on individual perceptions.

In para 10 of the writ petition itself, the Disclaimer (1) contained in the film is noted. It is stated that the film was inspired from the epic poem

Padmaavat, written by Malik Muhammad Jayasi, which was considered a work of fiction. Producers of the film do not claim any historical

authenticity or accuracy for the same. The writ petitioner does not contest the correctness of the contents of the disclaimer.

By way of Disclaimer (II), it is unequivocally declared the film does not intend to encourage or support ''Sati'' or such practices.

As noted above, the entire writ petition is premised on the sole submission that it has elaborately choreographed the ''Sati'' or ''Jauhar'' scenes

in the history of Indian cinema. The writ petitioner does not even state at all that the film is ''supporting, justifying or propagating the practice of

sati''. It is therefore, not possible to hold that the film would invite penal action under the Commission of Sati (Prevention) Act, 1987.

So far as the sanctity to be attached to a certificate granted by the Board of Film Certification is concerned, in the order dated 18th January,

2018 in Viacom 18 Media Pvt. Ltd., the Supreme Court of India has held that there would be a prima facie presumption that the concerned

authority has taken into account all the Guidelines before issuance of the certificate. The order stands recorded with regard to the certificate

accorded by the Board of Film Certification to the film ''Padmaavat'' and binds the present consideration.

We have discussed heretofore the scheme of the Cinematography Act, 1952 as well as the Guidelines for Certification of Films for Public

Exhibition which guide the Board considering an application for grant of a certificate to enable exhibition of the film.

The object and impact of these Guidelines were considered by the Supreme Court in the pronouncement reported at (1996) 4 SCC 1, Bobby

Art International v. Om Pal Singh Hoon in the following terms :

The guidelines aforementioned have been carefully drawn. They require the authorities concerned with film certification to be responsive to the

values and standards of society and take note of social change. They are required to ensure that ""artistic expression and creative freedom are not

unduly curbed"". The film must be ""judged in its entirety from the point of view of its overall impact"". It must also be judged in the light of the period

depicted and the contemporary standards of the people to whom it relates, but it must not deprave the morality of the audience. Clause 2 requires

that human sensibilities are not offended by vulgarity, obscenity or depravity, that scenes degrading or denigrating women are not presented and

scenes of sexual violence against women are avoided, but if such scenes are germane to the theme, they be reduced to a minimum and not

particularised.

The guidelines are broad standards. They cannot be read as one would read a statute. Within the breadth of their parameters the certification

authorities have discretion. The specific sub-clauses of clause 2 of the guidelines cannot overweigh the sweep of clauses 1 and 3 and, indeed, of

sub-clause (ix) of clause (2). Where the theme is of social relevance, it must be allowed to prevail. Such a theme does not offend human

sensibilities nor extol the degradation or denigration of women. It is to this end that sub-clause (ix) of clause 2 permits scenes of sexual violence

against women, reduced to a minimum and without details, if relevant to the theme. What that minimum and lack of details should be is left to the

good sense of the certification authorities, to be determined in the light of the relevance of the social theme of the film.

(Emphasis by us)

As noted above, in the present case, the Board has scrutinized the film in the light of the statutory provisions and the above Guidelines. It has

recommended removal of scenes, etc. to the original film which stand effected and even thereafter, a qualified ''U/A'' certificate has been granted

after application of mind and consideration of all relevant materials.

For all these reasons, we find no merit in this writ petition which is hereby dismissed.

CM No.6396/2018

In view of the order passed in the writ petition, this application does not survive for adjudication and is hereby dismissed.