Sunday 9 October 2016

Whether reference to homosexuality and masturbation of women in movie will amount to obscenity or vulgarity?

As noted above, the impugned order is passed in

exercise of the power of the State to impose restrictions on the

fundamental right of freedom of speech and expression

guaranteed to the petitioner. Since the same is a restriction on

the fundamental right guaranteed to the petitioner under Article

19(1) (a) of the Constitution, the same has to be viewed with

suspicion, and the burden is heavy on the authorities to show

that the restrictions are reasonable and permissible under law.

Though the respondents have attempted to support the

impugned decision by supplementing reasons in the counter

affidavit, I do not propose to advert to the said reasons, for, it

is settled that the orders have to stand by the reasons stated


therein itself. The essence of the impugned decision is that the

contents of the film is insulting and humiliating Hindu religion

and that the film contains scenes which are vulgar and

obscene. To demonstrate the stand that the contents of the

film are insulting and humiliating Hindu religion, it is stated in

the impugned order that the Hindu God Hanuman is shown in

the film as coming in the books titled 'I am a Gay'. Likewise, to

demonstrate the vulgarity, it is stated in the impugned order

that the film refers to masturbating women and homosexuality.

There is no other reference in the impugned order with

reference to the specific scenes in the film which violate the

Guidelines. It is relevant to note that the impugned order bans

the exhibition of the film. If the objection concerns only the

depiction of the Hindu God Hanuman in the manner indicated in

the impugned order and the reference to masturbation of

women and homosexuality, there is no need to ban the

exhibition of the film altogether, for, the objectionable scenes

could be deleted or modified. It is thus evident that the basis of

the impugned order is not as disclosed in the impugned order.


Since the decision is that the film is not fit for public exhibition,

it has to be on the basis that the theme of the film offends the

Guidelines. There is no such statement in the impugned order.

Further, mere reference to homosexuality and masturbation of

women may not amount to obscenity or vulgarity. As stated by

the Apex Court, only if the entire theme is disclosed, the

question   whether    the   reference   to    homosexuality     and

masturbation of women would amount to vulgarity or obscenity

can be ascertained. There is nothing in the impugned order as

to the context in which those references have been made in the

film. True, some persons may hold an orthodox or conservative

view in matters like this, but that by itself is not sufficient to

come to the conclusion that the contents of the film are

contemptuous of religious groups. As held by the Apex Court,

the question whether a scene is vulgar or obscene is to be

determined in the context of the work as a whole. When the

respondents take the most extreme step of banning the

exhibition of the film, allegedly made spending approximately

one crore rupees, according to me, an order in the nature of


one impugned is far from satisfactory. In this context, we must

also bear in mind that freedom to think and act differently is an

essential feature of democracy. The said freedom includes

freedom to react and respond to same situations differently and

distinctly. One cannot expect everybody to express themselves

in the same manner. After all, film making is a creative work. If

freedom to express one's ideas is not conceded, there will not

be any creativity at all. Looking at one or two scenes or

expressions in the film, it cannot be said that the film offends

religious sentiments or that it is vulgar and obscene. In the said

view of the matter, according to me, the matter has to be

reconsidered by the Revising Committee, after affording the

petitioner an effective opportunity for hearing.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                             PRESENT:

                   THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

           27TH DAY OF SEPTEMBER 2016

                                WP(C).No. 27418 of 2016 (B)
                              

             JAYAN CHERIAN,
                  
Vs
            UNION OF INDIA,

                    


           The petitioner is the producer, director and script

writer of the feature film, "KA bodyscapes". According to the

petitioner, "KA bodyscapes" ('the film') portrays through its

protagonists the attitude of the society towards homosexuality

and feminism. It is stated that the film revolves around the

experiences of three protagonists in the film, Haris, a gay free

spirited painter, his love interest, Vishnu, a Hanuman bakth

from a conservative Hindu right wing family and Sia, a feminist

from a conservative Muslim family. According to the petitioner,

the film touches upon the aggression shown by right wing

activists towards artists and writers and it highlights the

struggles of their friend Sia, who rebels against dehumanising

surveillance at her work place and misogynist punishments

meted out to menstruating women.


            2. The petitioner approached the second respondent,

the Regional Officer of the Central Board of Film Certification

('the Board' for short) for certification of the film for public

exhibition under the Cinematograph Act, 1952 ('the Act'). On

receipt of the application, the Board constituted an Examining

Committee      as    provided   for  under    Rule   22   of    the

Cinematograph (Certification) Rules, 1983 ('the Rules').       The

Examining Committee, after viewing the film, recommended to

the Board to refer the film to the Revising Committee, as

provided for under Rule 24 of the Rules. On the basis of the

recommendation made by the Examining Committee, the

Chairman of the Board referred the film to the Revising

Committee at the Regional Office of the Board at Chennai. The

Revising Committee consisting of a member of the Board and

eight others, after viewing the film, recommended to the Board

to refuse certification to the film on the ground that it

contravenes paragraphs 1(a), 1(d), 2(vii), 2(ix), 2(xii), 2(xiii), 3

(i) and 3(ii) of the Guidelines issued by the Central Government

for certification of film for public exhibition ('the Guidelines').


The decision of the Revising committee has been forwarded to

the petitioner as per Ext.P2 communication. The petitioner is

aggrieved by the said decision of the Revising Committee and

hence, this writ petition.

            3. A counter affidavit has been filed in this matter

by the respondents supporting the impugned decision.

According to the respondents, the film contains scenes that

promote gay and homosexuality, nudity that contains vital

parts of the male nude body and there are many vulgar scenes

and dialogues throughout the film, which contravenes para 2

(vii) of the Guidelines which provides that films for public

exhibition   shall   not  contain   scenes   offending    human

sensibilities by vulgarity, obscenity or depravity.    It is also

stated in the counter affidavit that the film contains scenes

showing menstrual blood and sanitary napkins, posting of

pictures of menstrual blood stains in the sanitary napkins in the

face book etc. that contravenes para 2(ix) of the Guidelines

which provides that films for public exhibition shall not contain

scenes degrading or denigrating women in any manner. It is


also stated in the counter affidavit that the film contains scenes

that are ridiculing, insulting and humiliating Hindu Religion, in

particular, portraying Hindu Gods in poor light with both visuals

and dialogues by throwing off the portrait of Lord Hanuman to

the floor, the Hindu God 'Hanuman' is shown as coming in the

Books titled 'I am a Gay' and other homosexual books that

contravenes Para 2(xii) of the Guidelines which provides that

films for public exhibition shall not contain visuals or words

contemptuous of racial, religious or other groups. In short, the

stand of the respondents is that the film was refused

certification as it contravenes Guidelines in paragraphs 1(a), 1

(d), 2(vii), 2(ix), 2(xii), 2(xiii), 3(i) and 3(ii) of the Guidelines.

             4. Heard the learned counsel for the petitioner as

also the learned Central Government Counsel for the

respondents.

             5. I am conscious of the fact that the petitioner has

a right of appeal against the impugned decision before the film

certification appellate tribunal, but I propose to decide the

matter on merits since the film is entangled in the dispute since


April 2016 and since an expeditious resolution of the dispute is

warranted, for, films of the instant nature which are addressed

to the contemporary audience would lose its significance and

charm by passage of time.

           6.    A film is a medium for expressing and

communicating      ideas,   thoughts,    messages,     information,

feelings and emotions. The right of a film maker to make and

exhibit his film, is part of his fundamental right of freedom of

speech and expression guaranteed under Article 19(1)(a) of the

Constitution. Section 5B(1) of the Act provides that a film shall

not be certified for public exhibition if, in the opinion of the

authority competent to grant 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 relationship 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. The restriction contained in Section 5B(1) of the Act is

the restriction introduced in the light of the provisions

contained in Article 19(2) of the Constitution. Section 5B(2)


provides that subject to the provisions contained in Section 5B

(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 the Act in

sanctioning films for public exhibition. It is in exercise of the

power conferred on the Central Government under Section 5B

(2) of the Act that the Guidelines have been formulated by the

Central Government. As far as the present case is concerned,

the petitioner has no case that the Guidelines or any one of

them is unreasonable and offends the provision contained in

Article 19 (2) of the Constitution. As such, since the film is

intended for public exhibition, the same has to be in conformity

with the Guidelines.

           7. In the context of obscenity contained in a book

while deciding the issue whether the same can be permitted to

be circulated, the Apex Court in Ranjit D. Udeshi v. The

State of Maharashtra, (AIR 1965 SC 881), held that treating

with sex and nudity in art and literature cannot be regarded as

evidence of obscenity without something more and if the rigid


test, of treating sex as the minimum ingredient, were accepted,

hardly any artist or writer will be able to do his creative work. It

is also held by the Apex Court in the said case that an overall

view of the obscene matter in the setting of the whole work

would be necessary to ascertain whether the matter is

objectionable.      It is also held in the said case that while

examining the issue, the interest of the contemporary society,

particularly the influence of books etc., must not be overlooked.

Paragraphs 16, 21 and 22 of the said decision of the Apex Court

read thus :

             "16. The important question is whether this test of obscenity

             squares with the freedom of speech and expression guaranteed

             under our Constitution, or it needs to be modified and, if so, in

             what respects. The first of these questions invites the court to

             reach a decision on a constitutional issue of a most far reaching

             character and we must beware that we may not lean too far

             away from the guaranteed freedom. The laying down of the

             true test is not rendered any the easier because art has such

             varied facets and such individualistic appeals that in the same

             object the insensitive sees only obscenity because his attention

             is arrested, not by the general or artistic appeal or message

             which he cannot comprehend, but by what he can see, and the

             intellectual sees beauty and art but nothing gross. The Indian

             Penal Code does not define the word 'obscene' and this delicate


            task of how to distinguish between that which is artistic and

            that which is obscene has to be performed by courts, and in the

            last resort by us. The test which we evolve must obviously be

            of a general character but it must admit of a just application

            from case to case by indicating a line of demarcation not

            necessarily sharp but sufficiently distinct to distinguish

            between that which is obscene and that which is not. None has

            so far attempted a definition of obscenity because the meaning

            can be laid bare without attempting a definition by describing

            what must be looked for. It may, however, be said at once that

            treating with sex and nudity in art and literature cannot be

            regarded as evidence of obscenity without something more. It

            is not necessary that the angels and saints of Michael Angelo

            should be made to wear breeches before they can be viewed. If

            the rigid test, of treating with sex as the minimum ingredient,

            were accepted hardly any writer of fiction today would excape

            the fate Lawrence had in his days. Hald the book-shop would

            close and the other half would deal in, nothing but moral and

            religious books which Lord Campbell boasted was the effect of

            his Act.

                                 


            21. The Court must, therefore, apply itself to consider each

            work at a time. This should not, of course, be done in the spirit

            of the lady who charged Dr. Johnson with putting improper

            words in his Dictionary and was rebuked by him. "Madam, you

            must have been looking for them." To adopt such an attitude

            towards Art and Literature would make the Courts a Board of

            Censors. An overall view of the obscene matter in the setting of

            the whole work would, of course, be necessary, but the


            obscene matter must be considered by itself and separately to

            find out whether it is so gross and its obscenity so decided that

            it is likely to deprave and corrupt those whose minds are open

            to influences of this sort and into whose hands the books if

            likely to fall. In this connection the interests of our

            contemporary society and particularly the influence of the book

            etc. on it must not be overlooked. A number of considerations

            may here enter which it is not necessary to enumerate, but we

            must draw attention to one fact.


            22. We may now refer to Roth's case, (1957) 354 US 476 : 11

            Law Ed 2nd 1498, to which a reference has been made. Mr.

            Justice Brennan, who delivered the majority opinion in that

            case observed that if obscenity is to be judged of by the effect

            of an isolated passage or two upon particularly susceptible

            persons, it might well encompass material legitimately treating

            with sex and might become unduly restrictive and so the

            offending book must be considered in its entirety. Chief Justice

            Warren on the other hand made "Substantial tendency to

            corrupt by arousing lustful desires" as the test. Mr. Justice

            Harlan regarded as the test that it must "tend to sexually

            impure thoughts". In our opinion, the test to adopt in our

            country (regard being had to our community 'mores') is that

            obscenity without a preponderating social purpose or profit

            cannot have the constitutional protection of free speech and

            expression and obscenity is treating with sex in a manner

            appealing to the carnal side of human nature, or having that

            tendency. Such a treating with sex is offensive to modesty and

            decency but the extent of such appeal in a particular book etc.,

            are matters for consideration in each individual case."



In K.A. Abbas v. Union of India, (1970) 2 SCC 780), the Apex

Court, in the context of Cinematograph Act, following the

decision in Ranjit D. Udeshi, held that it is not the elements of

sexual immorality which should attract the censor's scissors,

but how the theme is handed by the producer. Paragraph 50 of

the decision of the Apex Court in the said case reads thus :



          "50. Therefore it is not the elements of rape, leprosy, sexual

          immorality which should attract the censor's scissors but how the

          theme is handled by the producer. It must, however, be

          remembered that the cinematograph is a powerful medium and

          its appeal is different. The horrors of war as depicted in the

          famous 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."



The decision of the Revising Committee, as forwarded to the

petitioner as per Ext.P2 communication, reads thus :



         "The Revising Committee felt that the entire content of the


        Malayalam feature film 'KA BODY SCAPES' is ridiculing, insulting

        and humiliating Hindu Religion, in particular portraying Hindu Gods

        in poor light. Derogatory words are used against women. The

        Hindu God 'Hanuman' is shown as coming in the Books titled 'I am

        a Gay' and other Homo-sexual books. The film has also references

        to lady masturbating, highlighting 'Gay' by many 'Gay' posters.

        The film offends human sensibilities by vulgarity, obscenity or

        depravity. As the film violates guidelines 1(a), 1(d), 2(vii), 2(ix), 2

        (xii), 2(xiii), 3(i) and 3(ii), therefore, the Certificate is 'Refused'."



Paragraphs 1(a), 1(d), 2(vii), 2(ix), 2(xii), 2(xiii), 3(i) and 3(ii) of

the Guidelines, which are relevant in the context, read thus :

         "1. The objectives of film certification will be to ensure that--

         (a) the medium of film remains responsible and sensitive to the

         values and standards of society;              x x x x

         (d)    The     medium       of   film  provides     clean     and  healthy

         entertainments;                        x x x x

         2.    In pursuance of the above objectives, the Board of Film

         Certification shall ensure that --

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

         depravity;       x x x x

         (ix)    scenes degrading or denigrating women in any manner are

         not presented;                  x x x x

         (xii) visuals or words contemptuous of racial, religious or other

         groups are not presented;              x x x x

         (xiii) visuals or words which promote communal, obscurantist,

         anti-scientific and anti-national attitudes are not presented;

                                         x x x x

   (3) The Board of Film Certification shall also ensure that the film--

          (i) is judged in its entirety from the point of view of its overall

          impacts; and

          (ii) is examined in the light of the period depicted in the film and

          the contemporary standards of the country and the people to

          which the film relates, provided that the film does not deprave the

          morality of the audience."

The correctness of the impugned decision has to be examined

in the light of the principles and guidelines referred to above.

            8. As noted above, the impugned order is passed in

exercise of the power of the State to impose restrictions on the

fundamental right of freedom of speech and expression

guaranteed to the petitioner. Since the same is a restriction on

the fundamental right guaranteed to the petitioner under Article

19(1) (a) of the Constitution, the same has to be viewed with

suspicion, and the burden is heavy on the authorities to show

that the restrictions are reasonable and permissible under law.

Though the respondents have attempted to support the

impugned decision by supplementing reasons in the counter

affidavit, I do not propose to advert to the said reasons, for, it

is settled that the orders have to stand by the reasons stated


therein itself. The essence of the impugned decision is that the

contents of the film is insulting and humiliating Hindu religion

and that the film contains scenes which are vulgar and

obscene. To demonstrate the stand that the contents of the

film are insulting and humiliating Hindu religion, it is stated in

the impugned order that the Hindu God Hanuman is shown in

the film as coming in the books titled 'I am a Gay'. Likewise, to

demonstrate the vulgarity, it is stated in the impugned order

that the film refers to masturbating women and homosexuality.

There is no other reference in the impugned order with

reference to the specific scenes in the film which violate the

Guidelines. It is relevant to note that the impugned order bans

the exhibition of the film. If the objection concerns only the

depiction of the Hindu God Hanuman in the manner indicated in

the impugned order and the reference to masturbation of

women and homosexuality, there is no need to ban the

exhibition of the film altogether, for, the objectionable scenes

could be deleted or modified. It is thus evident that the basis of

the impugned order is not as disclosed in the impugned order.


Since the decision is that the film is not fit for public exhibition,

it has to be on the basis that the theme of the film offends the

Guidelines. There is no such statement in the impugned order.

Further, mere reference to homosexuality and masturbation of

women may not amount to obscenity or vulgarity. As stated by

the Apex Court, only if the entire theme is disclosed, the

question   whether    the   reference   to    homosexuality     and

masturbation of women would amount to vulgarity or obscenity

can be ascertained. There is nothing in the impugned order as

to the context in which those references have been made in the

film. True, some persons may hold an orthodox or conservative

view in matters like this, but that by itself is not sufficient to

come to the conclusion that the contents of the film are

contemptuous of religious groups. As held by the Apex Court,

the question whether a scene is vulgar or obscene is to be

determined in the context of the work as a whole. When the

respondents take the most extreme step of banning the

exhibition of the film, allegedly made spending approximately

one crore rupees, according to me, an order in the nature of


one impugned is far from satisfactory. In this context, we must

also bear in mind that freedom to think and act differently is an

essential feature of democracy. The said freedom includes

freedom to react and respond to same situations differently and

distinctly. One cannot expect everybody to express themselves

in the same manner. After all, film making is a creative work. If

freedom to express one's ideas is not conceded, there will not

be any creativity at all. Looking at one or two scenes or

expressions in the film, it cannot be said that the film offends

religious sentiments or that it is vulgar and obscene. In the said

view of the matter, according to me, the matter has to be

reconsidered by the Revising Committee, after affording the

petitioner an effective opportunity for hearing.

            In the result, the writ petition is allowed, the

impugned order is set aside and the Revising Committee of the

Board is directed to give notice to the petitioner indicating

clearly the reason for banning the exhibition of the film

altogether with specific reference to the theme of the film and

the relevant guidelines. Thereafter, the petitioner should be


heard on the reasons disclosed to him. The suggestion, if any,

of the petitioner to delete the objectionable scenes, modify the

theme etc., wherever necessary, conforming to the Guidelines,

shall also be considered by the Revising Committee.       If the

Revising Committee maintains that the film is not suitable for

public exhibition even with the modifications/suggestions, if

any, made by the petitioner, an order has to be passed stating

the objections as to the theme with reference to the scenes in

the film and the Guidelines. The order should also disclose the

suggestions/modifications made by the petitioner and the

reasons for not accepting the same. The above direction shall

be complied with, within one month from the date of receipt of

a copy of this judgment.


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