I.G. Shah, J.
1. This appeal was heard by a Division Bench consisting of Lentin and Ashok Agarwal, JJ. The two learned Judges differed and, therefore, they referred the matter to the learned Chief Justice for being placed before the third Judge. The learned Chief Justice for being placed before the third Judge. The learned Chief Justice placed this appeal before me for hearing and disposal.
2. The two main points that arise for consideration are these. (1) Whether the authorities were justified in refusing certification to the film, 'Pati Parmeshwar' on the ground that it violates Guideline 2(iv-a) of the Guidelines issued by the Central Government for certification of films. (2) Whether Guideline 2(iv-a) is beyond the scope of section 5-B(2) of Cinematograph Act, 1952, and ultra vires Article 19 of the Constitution.
3. The facts giving rise to this appeal in a nut-shell are as under. The second respondent one S.K. Nayyar is the producer of cinematograph film called 'Pati Parmeshwar'. The Examining Committee of the Board of Film Certification refused the certificate to the film on the ground that it violated Guideline 2(iv-a). The Revising Committee also refused certification under the same Guideline read with Guidelines 1(c) and 3(ii). The Appellate Tribunal refused to interfere with the decision of the Revising Committee holding that the film in the form in which it was presented contravenes Guideline 2 (iv-a) read with Guidelines 1(a), 1(c) and 3(ii) of the Guidelines.
4. The second respondent thereupon filed a writ petition in this Court under Article 226 of the Constitution of India seeking to challenge the total ban of the said film. The writ petition came up for hearing before the learned Single Judge who saw the film and by his order dated January 28, 1988, directed certain cuts, additions and modifications to certain scenes and dialogues. By his further order dated May 3, 1988 the learned Single Judge referred the viewing of the film to a Board of five members who were directed to record their individual and collective opinions to be kept in a sealed cover and handed over to the learned Single Judge. The three of the said five members of the Board were initially inclined to pass the film with a 'A' Certificate to the film in its revised form with the cuts, deletions modifications and substitutions which were effected and complied with as directed by him. The learned Judge observed that, in any event, the film deserved to be granted a 'A' certificate as tentatively decided by the majority of the earlier Board. The learned Single Judge again referred the viewing of the film to another Board of five members to be chosen from seven persons selected from the panel and supplied by the appellants to the Court. The five members were directed to personally record his/her individual opinion in confidence, the Asstt. Regional Officer was directed to put these individual opinions in a cover to be immediately sealed and handed over to the Chairman for being forwarded to the Court. The final judgment delivered by the learned Single Judge on June 22, 1988 indicates that one member suggested a 'A' Certificate and another a 'UA' certificate and the third a 'U' certificate. It appears that the remaining two members had recommended a total ban. The learned Single Judge ordered six further deletions and finally directed that a 'UA' certificate should be issued in respect of the film in its revised form. The learned Single Judge observed in his judgment ---
'As many as three members of the revising committee had also earlier passed the film. Having personally seen the film, I find myself also in favour of passing it. Its total ban is not sustainable. Seeing the several films passed and mentioned in paragraph 3(e) above, one at once realises how (apart from other contentions) unsustainable the total ban of this film is. However, out of deference to the views of the committee members, I am (in addition to the earlier directed several cuts, deletions and modifications all of which have been already effected by the petitioners) directing further cuts as per the separate order passed today. With these cuts, taken along with the earlier cuts, deletions and modifications, there should now, in all fairness, be issued to this film a 'UA' certificate as a via-media between 'A' certificate recommended by one, 'UA' certificate recommended by another and 'U' certificate recommended by yet another member of the committee.'
5. Aggrieved by the aforesaid decision of the learned Single Judge, the Union of India, the Central Board of Film Certification and the Film Certification Appellate Tribunal have preferred this appeal.
6. Lentin, J. inter alia held---i) Guideline 2(iv-a) cannot be read by itself. It must be read in conjunction with section --- B(i) and must be construed in the light of the reasonable restriction against indecency or immorality contained in section 5-B(1) as also in Article 19(2) of the Constitution. 2) Guideline 2(iv-a) is valid. The expression ignoble servility---appearing in Guideline 2(iv-a) cannot be termed as vague. 3) The certification having been refused to the film, essentially and primarily as it fell foul of Guideline 2 (iv-a), the vires of Guidelines 1(c) and 3(ii) need not be gone into, since it does not arise in this case (4) The film 'Pati Parmeshwar' offends both decency and morality and also violates 'Guideline 2(iv-a). Section 5-B(2) is the genus, the Guideline the species. 5). The manner in which Rekha's servility is depicted and glorified is not in accordance with the standard of decency, as commonly understood and recognised. Put positively, it is indecent to the point of repugnancy. Even worse is the depiction and glorification of Rekha's servility in taking her won husband to the dancing woman Tara, as his 'naukarani' waiting outside while he and Tara are closed together alone in her room, and then taking him back to his house. This episode in particular is more than indecent and offends morality as an average person would understand the meaning of that word. In this view of the matter, Lentin, J., was inclined to set aside the judgment and order of the learned Single Judge and allowed the appeal with the observation that it would be open to the producer to represent the film for certification to the statutory authority after making suitable alterations and the authority must thereafter come to its own conclusion in accordance with the law.
7. In his dissenting judgment Ashok Agarwal, J., held---1) The film 'Pati Parmeshwar' does not violate Guideline 2(iv-a) read with 1(c) and 3(ii). (2) Guideline 2(iv-a) transgresses the limits of the powers conferred on the Central Government by section 5-B(1) and (2) of the Act to issue directions. Consequently the Guideline is ultra vires the Act. 3) Guideline 2(iv-a) infringes upon the fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) and the same cannot be saved by Article 19(2) of the Constitution. The restriction or prohibition contained in Guideline 2(iv-a) read with 1(c) and 2(ii) is not reasonable or in the interest of decency or morality as contemplated under Article 19(2). Hence the same is ultra vires the fundamental right guaranteed under Article 19(1) of the---Constitution. 4) Guideline 2(iv-a) suffers from the vice of vagueness and deserves to be struck down on this count as well. 5) The denial of a certificate to the film'Pati Parmeshwar' denies equality before the law as also the equal protection of the law. 6) The film has been discriminated against vis-a-vis other films of a like nature and thus contravenes the provisions of Article 14 of the Constitution. 7) Lastly he held that the character of Rekha as depicted in 'Pati Parmeshwar' cannot be said to have depicted her in ignoble servility to man nor can it be said that the same glorifies such servility as a praiseworthy quality in women. She is not servile. She, however, is committed to the marriage and she goes all out to save him. What is glorified is not servility, but faith, courage and sacrifice and ultimately she emerges the victor. In this view of the matter, Agarwal, J., affirmed the order passed by the learned Single Judge and dismissed the appeal.
8. It would thus appear that the two learned Judges have differed both on the question of vires and the Guideline 2(iv-a) as also on the question whether the character of Rekha as depicted in the film depicts her in ignoble servility to man or that there in glorification of servility as a praiseworthy quality in women.
9. In order to appreciate the rival contentions, it would be useful at the outset to refer to the Guidelines as also the---provisions of section 5-B of the Cinematograph Act, 1952, under which the Guidelines have been issued by the Central Government. Section 5-B provides---
'(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 interest 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.'
10. Recapitulating the relevant Guidelines issued by the Central Government in exercise of the powers conferred by sub-section (2) of section 5-B of the Act for the guidance of the Board of Film Censors constituted under the Act, Guideline 1 (c) says---The objectives of film censorship will be to ensure that---
(a) ............................
(b).............................
(c) censorship is responsive to social change.
Guideline 2 (iv-a) provides---
'In pursuance of the above objectives, the Board of Film Censors shall ensure that---...........................
(iv-a) visuals or words depicting women in ignoble servility to man or glorify ing such servility as a prarse worthy quality in women are not presented.'
Guideline 3 (ii) reads---
'The Board of Film Censors shall also ensure that the film---......................
(ii) is examined in the light of contemporary standards of the country and the
people to which the film relates.
11. I now proceed to consider whether Guideline 2(iv-a) is beyond the scope of section 5-B(1) of violates the fundamental rights of the respondents. Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression. It has, however, got to be read along with Article 19(2) which lays down certain constitutionally permissible limitations on the exercise of that right. Article 19(2) as substituted by the Constitution (1st Amendment) Act, 1951, with retrospective effect reads as under :
'Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in 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 in relation to contempt of court, defamation or incitement to an offence.'
It follows that any limitation on the exercise of the fundamental right under Article 19(1)(a) which does not fall within the four corners of Article 19(2) cannot be upheld Mr. Setalved relied on certain passages in the 'judgment of the Supreme Court in Express Newsparer Private Ltd. v. Union of India, : (1961)ILLJ339SC . In para-133 of the judgment it has been observed that---
'the fundamental right to the freedom f speech and expression enshrined in Article 19(1)(a) of our Constitution is based on these provisions in Amendment I of the Constitution of the United States of America and it would be therefore legitimate and proper to refer to those decisions of the Supreme Court of United States of America in order to appreciate the true nature, scope and extent of this right inspite of the warning administered by the Supreme Court against the use of American and other cases.'
Para-142 of the judgment sums up the position of law on the point in the United States. In the said para it is said---
'It is clear from the above that in the United States of America:
(a) the freedom of speech comprehends the freedom of press and the freedom of speech and press are fundamental personal rights of the citizens:
(b) the freedom of the press rests on the assumption that the widest possible dissemination of information from diverse and antagonistic courses is essential to the welfare of the public;
(c) Such freedom is the foundation of free Government of a free people;
(d) the purpose of such a guarantee is to prevent public authorities from assuming the guardianship of---the public mind and
(e) freedom of press involves freedom of employment or non-employment of the necessary means of exercising this right or in other words, freedom from restriction in respect of employment in the editorial force.
12. In Sakal Papers Pvt. Ltd. v. Union of India, : [1962]3SCR842 , to which my attention is drawn by Mr. Setalvad, in para---25 it is observed:
'The right to propagate one's ideas is inherent in the conception of freedom of speech and expression. For the purpose of propagating his ideas every citizen has a right to publish them, to disseminate them and to circulate them. He is entitled to do so either by word of mouth or by writing. The right guaranteed thus extends, subject to any law competent to the matter which he is entitled to circulate, but also to the volume of circulation. In other words, the citizen is entitled to propagate his views and reach any class and number of readers as he chooses subject of course to the limitations permissible under a law competent under Article 19(2).'
Further in para-35 of the judgment it is observed by the Supreme Court that---
'The right to freedom of speech and expression is a individual right guaranteed to every citizen by Article 19(1)(a) of the Constitution. There is nothing in clause (2) of Article 19 which permits the State to abridge this right on the ground of conferring benefits upon the public in general or upon a section of public. It is not open to the State to curtail or infringe the freedom of speech of one for promoting the General welfare of a section or a group of people unless its action could be justified under a law competent under Clause (2) of Article 19.'
Finally in para 47 the Supreme Court emphasised---
'To repeat, the only restrictions which may be imposed on the rights of an individual under Article 19(1)(a) are those which Clause (2) of Article 19 permits and no other.'
13. In Santokh Singh v. Delhi Administration, : 1973CriLJ846 the Supreme Court sounded a note of caution as it were as regards the validity of the American decisions when it observed in para - 9 of the judgment that ---
'The learned Counsel also tried to refer us to some American decisions for developing the argument that the guaranteed freedom of speech and expression should be broadly construed but we did not consider it necessary to go into the American decisions notwithstanding the fact that in Express Newspapers (P.) Ltd. Union of India, : (1961)ILLJ339SC it was observed that American decisions were relevant for the purpose of understanding the scope of Article 19(1)(a). In our opinion, it is hardly fruitful to refer to the American decisions particularly when this Court has more than once clearly enunciated the scope and effect of Article 19(1)(a) and 19(2). The test of reasonableness of the restriction has to be considered in each case in the light of the nature of the right infringed, the purpose of the restriction, the extent and the nature of the mischief required to be suppressed and the prevailing social and other conditions at the time. There can be no abstract standard or general pattern of reasonableness. Our Constitution provides reasonably precise, general guidance in this matter. It would thus be misleading to construe it in the light of American decisions given in different context. Section 9 of the Act is, in our view, plainly within the legislative competence of the Public Legislature and it would be for the Court in which the appellant is being tried to decide as to how far the appellant's speech is covered by this section.'
14. Again in a recent decision in Indian Express Newspapers (Bombay) Private Ltd. v. Union of India, the Supreme Court observed that ---
'While examining the constitutionality of a law which is alleged to contravene Article 19(1)(a) of the Constitution, we cannot no doubt, be solely guided by the decisions of the Supreme Court of the United States of America. But in order to understand the basic principles of freedom of speech and expression and the need for that freedom in a democratic country we may take them into consideration. The pattern of Article 19(1)(a) and of Article 19(1)(g) of our Constitution is different from the pattern of the First Amendment to the American Constitution which is almost absolute in its terms. The rights guaranteed under Article 19(1)(a) and Article 19(1)(g) of the Constitution are to be read along with Clauses (2) and (6) of Article 19 which carve out areas in respect of which valid legislation can be made.'
15. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sangathana, : AIR1988SC1642 where the question of the right of a citizen to exhibit film on Doordarshan came up for consideration. The Supreme Court said:---
'Freedom of expression is a preferred right which is always very zealously guarded by this Court.'
16. There in thus no doubt that the freedom of expression is an undeniable right given under the Constitution, but that right is subject to certain well defined and well established limitations which have been incorporated in Article 19(2). Article 19(2) clearly says that the restrictions that can be imposed have to be reasonable, Section 5-B(1) is replice of Article 19(2) and contains the same limitations on the basis of which certification to a film for public exhibition can be denied. Sub-section (2) of section 5-B grants power to the Central Government to issue directions setting out principles which shall guide the authority to grant the certificates under the Act in sanctioning the film for public exhibition, but the exercise of the power by the Central Government in the matter of issuing directions or guidelines are subject to the provisions contained in sub-section (1) of section 5-B, then the same are liable to be struck down as ultra vires.
17. This brings us to the first question as to whether guideline 2 (iv-a) is beyond the scope of sub-section (1) of section 5-B of the Act of Article 19(2) of the Constitution Mr. Shah, the learned Counsel appearing for the appellants urged the following contentions : (1) Guideline 2 (iv-a) falls under 'decency' and /or 'morality'. 2) that offends against the said standards of propriety would amount to 'indecency' or 'obscenity' 3) 'Indecency' or 'obscenity' is not confined to sex nor is 'immorality'. 4) The scope of the true meaning of guideline 2 (iv-a) firstly it has to be read with Guideline 1 (a) 1 (c) and 3 (ii) and secondly the provisions of Article 15(1) and Article 51-A(a) must be done in mind. 5) While construing the standard of propriety one must have regard to the aforesaid constitutional provisions. 6) Guideline 2 (iv-a) cannot be termed as vague and incapable of implementation nor can it be said that because of its alleged vagueness there is a possibility of arbitrary exercise of powers by the certifying authorities.
18. One the other hand, Mr. Setalved, the learned Counsel, appearing for the respondents submitted - 1) all censorship is infringement of Article 19(1)(a) of the Constitution and can only be upheld, if it is saved by Article 19(2).2) Article 19(2) must be strictly construed. 3) The phrase 'decency' or 'morality' must mean sexual 'morality'. In the alternative, the phrase must mean 'immutable principles of morality and 'decency' as understood through the ages. 4) Linking morality or decency with 'propriety' would destroy Article 19(1)(a). 5) Any restriction to be valid must not be vague and also must be reasonable. 6) The norm of the guideline must be precise. On the other hand, the language of Guideline 2(iv-a) uses inherently contradictory language as can be seen from the extra position of the two words 'ignoble' and 'servility'. 7) Servility itself is ignoble and the guideline would mean what is objectionable is 'bad kind of badness' 8) By reason of such vagueness in the Guideline 2 (iv-a), there is a likelihood of arbitrary exercise of power to grant or refuse certification and also permits discriminatory treatment.
19. While dealing with the question of vagueness in Guideline 2(iv-a), it would be useful to recall the observations of the Supreme Court in K.A. Abbas v. Union of India, A.I.R. 1971 S.C. 461
'The real rule is that if a law is vague of appears to be so, the Court must try to construe it, as far as may be, and language permitting the construction sought to be placed on it must be in accordance with the intention of the legislature. Thus if the law is open to diveres construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where, however, the law admits of no such construction and the persons applying it are in a boundless see of uncertainly and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application or the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases.'
20. In order to judge the guideline from this angle one has to see the meaning of servility and ignoble in the context in which it is used, and, therefore, must be construed in the light of reasonable restriction against indency and immorality as envisaged in section 5-B(1). It would not be proper to read the Guideline 2 (iv-a) in isolation. The first question that arises is as to what is the meaning of word 'decency' or 'morality' referred to in section 5-B(1) and Article 19(2). The Random House Dictionary defined 'decency' as '1. The state or quality of being decent, 2. conformity to the recognised standard of propriety, good taste, modesty etc. 3. something decent or proper, 4, decencies, the requirements or amenities or decent living and conduct'. The Concise Oxford Dictionary defines 'decency' as 'propriety of behaviour; what is accepted as being required by good taste or delicacy; avoidence of obscence language and gestures and of undue exposire of person; respectability; (in pl.) requirements of respectable behaviour.'
21. The concept of 'morality' goes even further. Webster's New Collegiate Dictionary, 1983 Edition, defines 'morality' as '..................... particular moral principles of rule of conduct conformity to ideals of right human conduct.'
22. Both in Articles 19(2) and section 5-B(1) the expression used is 'decency' or 'morality'. The use of or' in between these words indicates that a distinction is made between the two viz. decency and morality. What is indecent is not necessarily immoral, but what is immoral must necessarily be indecent.
23. Mr. Setalvad relied on Gherulal Parekh v. Mahadeodas Maiya A.I.R. 1969 S.C. 781 and Fram Nusserwanji Balsara v. State of Bombay 51 Bom L R 799, in support of his contention that 'morality' means sexual morality.
24. In Gherulal Parekh the Supreme Court was called upon to consider the meaning of the word 'immorality' in relation to sections 23 and 30 of the Contract Act. In paras 29 and 30, the Court observed :
'29. Re. Point 3---Immorality : The argument under this head is rather broadly stated by the learned Counsel for the appellant. The learned Counsel attempts to draw an analogy from the Hindu Law relating to the doctrine of pious obligation of sons to discharge their father's debts and contends that what the Hindu Law considers to be immoral in that context may appropriately be applied to a case under section 23 of the Contract Act Neither any authority is cited nor any legal basis is suggested for importing the doctrine of Hindu Law into the domain of contracts. Section 23 of the Contract Act is inspired by the common law of England and it would be more useful to refer to the English Law then to the Hindu Law texts dealing with a different matter. Anson in his Law of Contract states at p. 222 thus :
'The only aspect of immorality with which Courts of Law have dealt is sexual immorality........
Halsbury in his Laws of England, 3rd Edn. Vol. 6, makes a similar statement at p. 138:
'A contract which is made upon an immoral consideration or for an immoral purpose is unenforceable, and there is no distinction in this respect between immoral and illegal contracts. The immorality here alluded to is sexual immorality,'
In the Law of Contract by Cheshire and Pifoot, 3rd Edn., it is stated at p. 279 :
'Although Lord Mansfiled laid it down that a contract contra bonos mores is illegal, the law in this connection gives no extended meaning to morality, but concerns itself only with what is sexually reprehensible.'
In the cook on the Indian Contract Act by Pollock and Mulla it is stated to p. 157 :
'The epithat 'immoral' points, in legal usage to conduct or purposes which the State, though disapproving them, is unable or not advised, to visit with direct punishment.' The learned authors confined its operations to acts which are considered to be immoral according to the standards of immorality approved by courts. The case law both in England and India confines the doctrine to sexual immorality. To cite only some instances, settlements in consideration of concluding, contracts of sale or hire of things to be used in a brothel or by a prostitute for purposes incidental to her profession, agreement to pay money for future illicit ophabitation, promises in regard to marriage for consideration, or contracts facilitating divorce are all held to be void on the ground that object is immoral.'
'30. The word 'immoral is very comprehensive word, Ordinarily it takes in every aspect of personal conduct devisting from the standard norms of life. It may also be said that what is repugnant to good conscience is immoral. Its varying content depends upon time, place and the stage of civilization of a particular society. In short, no universal standard can laid down and any law based on such fluid concept defects its own purpose. The provisions of section 23 of the Contract Act indicate the legislative intention to give it a restricted meaning. Its juxtaposition with an equality illusive concept, public policy, indicates that it is used in a restricted sense, otherwise there would be overlapping of the two concepts. In its wide sense what in immoral may be against public policy, for public policy covers political, social and economic ground of objection. Decided cases and authoritative text books writers, therefore, confined it, with every justification, only to sexual immorality. The other limitation imposed on the word by the status, namely courts consider immoral' brings out the idea that it is a breach of the common law like the doctrine of public policy, and, therefore, should be confined to the principles recognised and settled by Courts. Precedents confines the said concept only to sexual immorality and no case has been brought to our notice where it has been applied to any head other than sexual immorality. In the circumstances, we cannot evolve a new heep so as to bring in wagers within its fold.'
25. In Fram Nusserwanj Balsara v. State of Bombay, certain provisions of the Bombay Prohibition Act, 1949, were challenged. The Court observed-
'In our opinion, the morality referred to in Article 19(1) is not the ad hoc morality created by the State Legislature. It is a morality which is accepted by all the word or at least throughout the length and breadth of India. It is absurd to suggest that when drinking is permissible in the majority of States in India, the more commendation of a drink would constitute an encroachment upon morality.'
26. We may proceed on the basis that the morality as contemplated by Article 19(2) and section 5-B(1) means sexual morality and the depiction of a woman in ignoble servility to man as envisaged by Guideline 2 (iv-a) may not be covered by the restriction relating to morality to Article 19(2) or section 5-B(1), since in my opinion the depiction of a woman in ignoble servility to man would squarely be covered by the restriction relating to decency in Article 19(2) or section 5-B(1). As pointed out above, the Guideline 2(iv-a) cannot be read in isolation and independently of the provisions of section 5-B(1) or Article 19(2). In other words, this Guideline will have to be read in the context and in the light of the restrictions contained in section 5-B(1). If, However, it is found that it cannot be so read or it has no rational connection with the word 'decency' appearing in the aforesaid provisions, then of course it would follow that the Guideline is ultra vires. According to Guideline 2(iv-a) the Board of film Censors shall ensure that visuals or words depicting woman ignoble servility to man or glorying such servility as a praise worthy quality in woman are presented. The Concise Oxford Dictionary gives the meaning of the word 'servile' as---:
'...............As of a slave, slavish cringing, fawning, menial, completely dependent.,'
The Random House Dictionary defines 'servile' thus-
'1. Slavishly submission or obsequious; fawning :
2. Characteristic of, proper to, or customary for slaves; object;
3. Yielding slavishly; truckling (usually fol. by to);
4. Extremely imitative; esp. in the arts, lacking in originality;
5. Being in slavery : oppressed;
6. Of, pertaining to, or involving slaves;
7. Of, pertaining to, or characteristic of a servant;
8. Of or pertaining to a condition of servitude or property ownership in which a person is held as a slave or as partially involved.'
According to Webster's New Collegiate Dictionary, 9th Edition, 'servile' means -
1. Of or befitting a slave or a menial position;
2. Meanly or cravenly submissive; object.,
As per The Concise Oxford Dictionary 'ignoble' means- 'base, dishonourable.'
27. The dictionary meanings tell us what these words mean as commonly understood. Lentin, J., in para 27 of his judgment has rightly observed :---
'I should have thought servility is by itself ignoble. This word 'ignoble' is, to my mind, an unnecessary appendage, which is no way detracts from the plain meaning of guideline 2(iv-a). If the yardstick by which Mr. Setalvad chooses to measure these word is any indication, then even words like 'decency' or 'morality' or even a word commonly used and understood like 'honesty' can be accused of being vague. No one has said that yet.'
28. It is a possible argument that the word 'servility' is used in the sense of mere submissiveness and the intention is clearly brought out by the use of the expression 'ignoble servility' which leaves no doubt as to the meaning and purport of the Guideline in which the said expression is used. Whichever way one looks at the matter, it is not possible to say that the Guideline is defective on the ground of vagueness.
29. Whether the depiction of woman in ignoble servility to a man would amount to assault to 'decency' talked of the Article 19(1) or section 5-B(i). The Random House Dictionary defines 'decency' as---
'1. The state or quality of being decent ;
2. Conformity to the recognised standard of property, good tasts, modesty etc.
3. Something decent or proper...........'
Webster's New Collegiate Dictionary, 9th edition, defines 'decency' as---
'propriety ;................. confirmity to standards of tests, propriety or quality.'
30. Mr. Shah submitted that depiction of something which offends or is repulsive to the set standards of propriety should be considered as 'indecent'. He also submitted that 'indecency' or 'obscenity' is not confined to sex. Reliance was placed by Mr. Shah on (1965)1 Q.B.S. 509, John Calder (Publication) Ltd, v. Powali, where is has been held that obscenity and depravity were not confined to sex.
31. Stroud's Judicial Dictionary of Words and Phrases has described 'indecent' and 'obscenes' as under :
'......................... convey the idea of offending against propriety, Indecency being at the lower and obscenity at the upper and of the scale. An indecent article is not necessarily obscene, but an obscene article is almost certainly indecent.'
32. In K.A. Abbas v. Union of India, : [1971]2SCR446 , the test of 'obscenity as profounded in Roth v. United States (1957)354 US 476 has been recalled thus---
'30. The only test that seemed to prevail was that of obscenity as profounded in Roth v. United States (1957) 354 U.S. 476, in that three tests were laid down :
(a) that the dominant theme taken as a whole appeals to prurient interests according to the contemporary standards of the average man,
(b) that the motion picture is not saved by any redeeming social value; and
(c) that it is patently offensive because it is opposed to contemporary standards.'
33. In my opinion, the main test for considering whether a film or a work of art is 'indecent' or 'obscence' is whether it is offending against the contemporary standards of propriety. Can it be said that depicting women in ignoble servility to man or glorifying such servility as a praiseworthy quality in women is in conformity with the recognised contemporary standards of propriety The answer must be in the negative if that be so, it cannot be said that Guideline 2 (iv-a) is beyond the scope of section 5-B(1) or has no relation to the restrictions in the interests of decency as envisaged in Article 19(2) or section 5-B(1). It is urged by Mr. Setalvad that the expression ignoble servility' is utterly vague and capable of permitting discriminatory treatment. It is not possible to accept this contention. The dictionary meanings do tell us that the words viz ignoble servility mean as commonly understood by the average man In my opinion, therefore, the guideline cannot be faulted on the ground of vagueness. Similar argument of vagueness in the Guideline was turned down in K.A. Abbas, though in relation to some other Guideline issued under section 5-B(1). In para 49 of the judgment the Supreme Court observed ;
'..................... It is argued on the basis of some American cases already noticed by us that these expressions are vague. We do not agree. The words used are within the common understanding of the average man For example, the word 'rape' indicates that the word is, ordinarily, understood to mean. It is hardly to be expected or necessary that the definition of rape in the Penal Code must be set down to further expose the meaning The same may be said about almost all the terms used in the directions and discussed before us. We do not propose to deal with each topic for that is really a profitless venture. Fundamental rights are to be judged in a broad way. It is not a question of semantics but of the substance of the matter. It is significant that justice Douglas who is in favour of a very liberal and absolute application of the First Amendment in America is of the view that 'sexual promiscuity' was not vague, while those in favour of prior restraints thought that it was. We have referred earlier to the case. We are quite clear that expressions like 'seduction' immoral traffic in woman', soliciting prostitution or procuration, indicate sexual situation and scenes suggestive of immorality, 'traffic and use of drugs'. 'class hatred, 'blackmail associated with immorality' are within the understanding of the average man and mote so of persons who are likely to be the panel for purposes of censorship Any more definiteness is not only not expected but is not possible Indeed, if we are required to draw up a list we would also follow the same general pattern.'
34. In my view, the Guideline 2(iv-a) has to be read in the context of the restrictions contained in section 5-B(1) and cannot be read in isolation. The words used in Guideline 2(iv-a) are within the common understanding of an average man. Mr. Setalvad submitted that the impugned Guideline 2(iv-a) is vague firstly because there is inherent defect in the language used in the Guideline; secondly the fact that conscientious people acting on the Guideline do not have the same interpretation, but have diametrically opposite interpretation and thirdly the Guideline permits discriminatory treatment. None of these contentions are sound. There is no inherent defect in the language used in the Guideline. The words 'ignoble servility' in Guideline 2(iv-a) are within the common understanding of an average man and the dictionary meanings tell us what these words mean as commonly understood. Merely because of the fact that the opinions of the members of the Board of Censor have differed in the case of this film, that cannot lead to the inference that the Guideline is vague. It is well known that the statutory provisions have been interpreted differently every of Court of law and it cannot be said that merely because of that the provision is rendered vague. It is equally not possible to strike down the Guideline as vague on the ground that it permits discriminatory treatment If there is discrimination in the application of a Guideline, it is the discrimination and not the Guideline which, in my opinion, must be read in the context of the reasonable restriction in the interest of decency contained in section 5-B(1) or Article 19(2). Mr. Setalvad is right when he contends that the right is subject to constitutionally permissible limitation on the exercise of such rights. The impugned Guideline certainly falls within the permissible restriction and must be held to be ultra vires and valid.
35. Before parting with this question of validity of Guideline 2(iv-a), I must refer to a decision of the Mysore High Court in Monmohan v. State of Mysore), A.I.R. 1966 Mys 361. Which has been relied on by Mrs. Setalvad where the Mysore High Court was invited to decide whether certain rules prohibiting criticism of Government by Government servants was in violation of Article 19(1)(2) of the Constitution. Construing the impugned passage in the pamphlet 'Saga of our Struggle' the Mysore High Court came to the conclusion that it could not be said that the passage was an indecent one and that the impugned rule was wide enough to bring within its net all statements of facts and expressions of opinion whether decent or not. Such construction of the passage and rule, the Court held that the rule was violative of Article 19(1)(a), it being not possible to dissect the rule and remove the invalid portion from the valid portion. Mr. Setalvad relied on the observations of the Mysore High Court to contend that the term 'decency' would not cover 'ignoble servility.' The observations of the Mysore High Court must be read in the context in which it was made and this is clear from what had been observed by the Mysore High Court in in para 18 of the judgment. Firstly, it is stated that the expression 'decency' in article 19(2) is not used in the sense of correct behaviour, secondly it is not that every in appropriate speech or expression in law is an indecent one and lastly the term 'decency' in the context means, avoidence of obscene language and gestures. In my opinion, no assistance can be had from such observations made in a totally different situation and context to ascertain whether depiction of women to ignoble servility to man would not be indecent and covered by reasonable restriction qua 'decency' in Article 19(2).
36. It was further urged by Mr. Setalvad that even 'decency' as contemplated by Article 19(2) also means sexual decency or obscenity. In this regard he relied on the report made by the Khosla Committee. In Ranjit D. Udeshi's case, : 1965CriLJ8 , the Supreme Court laid down certain principles on which the obscenity of a picture was to be considered with a view to decide whether the book should be allowed to circulate or withdrawn As observed by the Supreme Court in K.A. Abbas v. Union of India, : [1971]2SCR446 that the said principles apply mutatis mutandis to films and also other areas besides obscenity. The Khosla committee adopted them and recommended them for the guidance of the film censors. These principles which have been summarised by the Khosla Committee in its report have been reproduced in the case of K.A. Abbas. The Khosla Committee said---
'The Supreme Court laid down the following principles which must be carefully studied and applied by our censors when they have to deal with a film said to be objectionable on the ground of indecency or immorality.
i) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. .........................................................
7) Treating with sex in a manner offensive to public decency or morality which are the words of our Fundamental Law judged by our national standards and considered likely to pander to lascivious, prurient or sexually precocious minds must determine the result ...........'
37. These are broad principles for the guidance of film censors. These principles do not necessarily mean that indecency must means only sexual indecency. The correct test as pointed out above is whether it is patently offensive because it is opposed to contemporary set of standards of propriety. That being the case, it would be indecent or obscene whether it is mixed with sex or not and would be covered by the word 'decency' for the purpose of Article 19(2).
38. In the view that I have taken, therefore, it is not possible for me to agree with the view taken by Agarwal, J., that Guideline 2 (iv-a) is beyond the scope of section 5-B(1) of is invalid on the ground of vagueness. I respectfully agree with the contrary view taken by Lentin, J.
39. The next question is whether the film 'Pati Parmeshwar' violates the Guideline 2 (iv-a) on the ground that it depicts women in ignoble servility to man or glorifying such servility as a praiseworthy quality in women.
The Film -----------
40. The film beings with a soliloquy way of introduction. It is stated that married life is like cart and man and woman are its two wheels of the same size. By chance, if one wheel falls into a mudpit, the cart cannot move further till the other wheel carries the total burden of the cart on its own shoulders and helps in taking out the fallen wheel from the mudpit For this act, whatever trouble it bears, is its strength and not its weakness. God has bestowed this strength more upon woman than to man. Not only woman is strong and powerful, but she has the strength of tolerance and forbearness also. In the turmoil depicted in the script reel 7/3/A to C she is compared to the sacred 'mother earth.'
41. The film depicts two major female characters Tara and Rekha. Rekha is the educated daughter of a wealthy father. After her mother's death, he has brought her up in luxury. Vijay is a young man. He is a drunkard and is addicted to bad company. He is a swindler, and his modus operandis is to pass himself off as a respectable and eligible young man, get his marriage arranged with unsuspecting girls and on the wedding day before going through the ceremony decamp with sizeable amounts taken from the girls' fathers on various pretexts. One such girl whom Vijay jilted was Durga. On the wedding day a demand for money was made from her father who was, however, unable to meet. So to Durga 's and her father's humiliation, Vijay neyer turned up for the wedding, leading her father Dinanath into mental derailment and financial wreck. The dejected Durga turns to Mujra and changes her name to Tara and set up a shop as a dancing woman in a part of the town. Having come to know of Vijay's weakness for dancing women, she was determined to exploit it to her own ends. Out to take revenge, she uses her charm and her Mujra songs to strip Vijay of not only his earthly belongings but also of his mental peace. Vijay lavishes all his illgotten wealth on her and yet is left high and dry leading him to a stage of desperation. Vijay gets married to the unsuspecting Rekha, the daughter of the wealthy and equally unsuspecting father. He goes through the wedding ceremony with Rekha not because he wanted to, but because knew that by doing so he would have access to her father's wealth. As is customary, her father Raosaheb on the eve of the marriage advises Rekha that 'after marriage the house of the in laws is hers, that she should love the mother-in-law as her own mother and sister-in-law as her own sister and that it is only that lady who is married to her husband both in life and death, is the true 'Pativarta'. She is the husband's second half, so his happiness is her happiness and his sorrow hers, in sorrow never leave husband alone as the husband is not only a husband hut is like her God'. Unfortunately for Rekha, her marriage was an absolute disillusionment Rekha goes to her in-laws' house laden with jewellery on her person. One the very first bight Vijay is not there. Rekha spends the wedding night on the bridal bed waiting for him. He does not come. He spent his wedding night with the dancing girl Tara, but does not suspect that she the same girl Durga he had jilted and who is out for revenge. While Rekha is waiting on the bridal bed for Vijay, his mother and sister give her a tongue-lashing as to Rekha's new duties as a wife and in the process forcibly relieve Rekha of her jewellery from her person. Rekha's in-law-make her life miserable. Vijay impliedly sides with them and neglects her. He is madly infatuated with Tara. Then we are shown the two sides of Rekha in mental and emotional conflict. The one tells her to leave Vijay and seek a divorce and the other as a Hindu wife it is her duty, despite her father's wealth, to do everything in her power not to break up her marriage. She remembers her father's post-nuptial advices. Rekha decides to save her marriage she is depicted as meekly submitting to the harassment inflicted on her by her-in laws and husband. Now Vijay wants Rs. 2,00,000/- from Rekha's father on the pretext of saving his factory from being mortgaged. He insists that the draft should be in his name. Rekha writes to her father accordingly. The father obliges and sends a draft. When the draft arrives Vijay is not at home Rekha takes the draft to Vijay at his factory. Vijay is there with his friend and accomplice. Unknown to them Rekha overhears Vijay waxing eloquent over the passion for Tara and the amount of Rs. 2,00,000/- is actually for Tara. It is in this manner Rekha comes to know of Tara and her husband's linson with her. Rekha is horrilied on this revelation. She goes back to the house without handing over the draft. Vijay on his return finds the draft lying on the table which he picks up. Rekha, however does not disclose that she had overheard the conversation in the factory and her having come to know that Vijay has tricked her into sending for this money form her father and that the amount was really intended to be given away to Tara. One day Rekha brings home a sick old unknown man who had fallen on the road. He is none other than the father of Durga (turned Tara) who Vijay had jilted. She nurses him. When Vijay's comes home he recognises the old ,an and asks Rekha to see that the sick oldman leaves the house. When the old man comes to know of Vijay's liason with Tara, not knowing that she is his own daughter Durga, he offers to remonstrate with her. Rekha however, stops him. One day Rekha's father coming to know of the illtreatment Rekha is getting at her-in-laws' home come to take her away. He gives a thrashing to the drunken Vijay. However, Rekha stops him from giving more reminding her father of his post-nuptial advice. While continuing to silently suffer the humiliation in the in-laws' house, she prays for her husband's reformation and also fasts on various days. On the 'Karvachauth' Rekha is doing her pooja. At that time Vijay comes home he insults her. The next day Vijay cannot move. His legs are paralysed Doctor is called. The doctor tells Rekha that Vijay will be alright except that both his legs are paralysed and it would be impossible for him to walk. She prays God : 'God I have always been faithful to you in performing your pooja then why, then why are you giving trouble to my husband ?' Listen to me God from today in front of you I am starting fast and I will not eat and drink a drop of water till my husband is cured. And you will have to honour may fast.' On a night Rekha hears Vijay murmering in bed for Tara. So Rekha takes him in a wheel-chair to Tara's house. Tara asks Vijay who Rekha is, Vijay replies that she is 'naukarani'. Rekha silently bears this insult and waits outside Tara's room while Tara and Vijay are together inside by themselves. Later Rekha wheels Vijay back to his house. During this period Rekha's mother-in-law and sister-in-law had gone out of the town. They come back. They put lethal poison in a glass of milk and give it to her to drink. Rekha declines as it is her day of fasting. They, however, try to force her and in the process the milk split on the floor. The cat laps it up and dies in instant agony. Rekha is horrified, but does not protest. Ultimately, Vijay is thrown out by Tara from her and her life. So returns home, but then sadder and wiser man. Rekha's prayers to Almighty are answered. A series of strokes of lightening suddenly strike Vijay's pralysed limbs and he is restored to health. Vijay realises his mistake and entreats Rekha to forgive him.
42. The film was seen by the learned Single Judge Pratap, J., as well as by the Appellate Bench of Lentin and Agarwal, JJ., before deciding the matter. During the course of the arguments I also decided to see the film for myself. I did so in the company of the learned Counsel for both the sides. The film depicts two main female characters. Tara is depicted as a courageous and bold lady and in her own way avenges the injustice done to her by Vijay. Obviously, there is no question of her being depicted in a manner offending Guidelines 2 (iv-a). It is the depiction of character of Rekha which has been assailed on behalf of the appellants as contravening the Guideline 2 (iv-a) It is submitted by Mr. Shah on behalf of the appellants that throughout the film Rekha has been depicted as a totally servile woman. Notwithstanding the humiliation, harassment and injustice heeped on her by her husband and in-laws, she never raises a finger in protest, much less retaliates at any stage. She has been totally servile and the depiction of her character is a patent depiction of her in ignoble servility to her husband and further there is a clear attempt to glorifying much servility as a praiseworthy quality in women In support of his submission Mr. Shah pointed out---1) Rekha submits to all sorts of humiliation and harassment by her husband and her in-laws. 2) She never protests nor retaliates, but is meekly submissive to any injustice caused to her. 3) On the wedding night she keeps on waiting for her husband on the bridal bad, but her husband spends the night with Tara and returns only in the morning 4) She is deprived of all her jewellery on her person on the pretext of safe custody. 5) Later both her mother-in-law and sister-in-law declined having taken any ornaments. 6) She is asked by the mother-in-law to do all the chores in the house, though she is the daughter of a wealthy father who is prepared to give any amount of money to her. 7) When her father comes to her house on having come to know of the humiliation and harassment heeped on Rekha and the misdeeds of Vijay and gives the drunken Vijay a a thrashing. Rekha is so servile as to ask her father to get out of the house. 8) On one day in the morning Rekha brings tea for Vijay and asks him to wake up and inquires whether he is alright. Vijay, however, spurns her accusing her of having complained to her father about him and even told her father to beat him. Rekha talls him in the name of God that she had not called her father nor did she tell him anything The conversation ends with Vijay telling her that he loves Tara and will always love her and tell her that she and her father may do anything they want to do. 9) The servility goes to the extreme extent when Rekha takes Vijay on the wheel-chair to Tara's house where Vijay tells Tara that Rekha is his 'naukrani'. Mr. Shah submitted that on none of these occasions she raised her finger in protest, but is merely submissive. He also submitted that the inner voice depicted in the turmoil in the script reel 7/3/A to cultimately gives way to submissiveness and even her inner voice fails to pursuade her to take any action against the ill-treatment mated out to her. Even when her father was insulted by Vijay she did not utter a word of protest.
43. Mr. Setalvad on the other hand submitted that Rekha has displayed a trend of character and ultimately triumph has been achieved by her when Vijay pleads with her to forgive him realising his mistake. Her endurance and faith paid her He submitted that the over-all impression on the mind of the average viewer is that Rekha is a good woman who suffers a lot and bears humiliation and ill-treatment. Because of her conviction and faith she persuagest inspite of extreme difficulties. She tries and ultimately succeeds in winning back her husband. One may not agree with the way Rekha approaches the problem. He also submitted that in the circumstances what was the choice before her except to get divorce. In the context of the motivation displayed by her, her character cannot be faulted as displaying ignoble servillity or slavery. The learned Counsel also submitted that the projection of the particular idea may not appeal to the modern elite, but merely because an idea which is out of fashion today is projected can never be something which can be called bad. What the character displayed here is the depiction by Rekha of a path of sacrifice based on conviction and faith. You may think that such depiction as is rational but that is neither here not there.
44. I am inclined to agree with the submissions of Mr. Setalvad. Guideline 3 rightly requires that the film must be judged in its entirety from the point of view of its overall impact and is examined in the light of contemporary standards of the country and the people to which the film relates. It would therefore, be not proper to base the opinion on viewing only certain scenes in isolation. Rekha belongs to a Hindu family and a daughter of a rich father. It was not impossible for her to leave the matrimonial home and return to her father discarding her husband and her marriage. She could have opted for divorce, but then it must not be forgotten that she belongs to a society which believes in sanctity and sacredness in the institution of marriage The turmoil in her mind as depicted shows that she knew well that she could choose the path of divorce. The character of Rekha as depicted in the film is one of faith, dedication and endurance and out of sanctity. This is consistent with the traditions of the Hindu society to which she belonged. I agree with the view taken by Agarwal, J., that there should be some element of compulsion, fear or force by someone else to dub the conduct as one of servility. In this case Rekha is not servile, but on the contrary she is committed to her marriage and she goes all out to save her marriage. What is glorified is not servility, but faith, compassion, courage and sacrifice. Her ultimate success one may say is the result of her faith, courage, endurance and sacrifice or even a miracle. We are not here to dissect the character of Rekha with a view to find out the correctness of her behaviour. The question is whether it amounts to ignoble servility with in the the meaning of Guideline 2 (iv-a), and in my opinion it is not.
45. In para 17 of his judgment Agarwal, J, has quoted the view expressed by the learned Single Judge. I am also in broad agreement with the view expressed by the learned Single Judge. It would not be out of place to repeate what the learned Single Judge has said---
'The personality of Rekha is an epitome of faith and dedication, of consideration, compassion and sensitivity in the true spirit of Indian ethos. Being a rich father's daughter she could as well have walked out of her matrimonial home and returned to her father's home discarding her husband and her marriage. But though that was to her the easy way out, it would have been contrary to the traditions of Hindu Society which believes in maintaining the sanctity and piousness inherent in the sacred institution of marriage. Rekha, therefore chooses not the easy was out but the better and righteous path, and raising to the occasion and accepting the challenge, succeeded with all the strength of her conduct and character in bringing her recalcitrant and repentant husband down to her feet as it were. It is ultimately his surrender and forgiveness.
Unlike many in this modern world always turning westward for everything, the heroine Rekha is not colour blind to basis Hindu culture, heritage and tradition. She exemplifies the inner strength and character of Indian womanhood. Her commitment to marriage is total and supreme and she honour it in full mannure. A true Saubhagayavati, she steadfastely holds on to the higher values which, in many a Matrimonial home today, are seen falling by the wayside. It is ultimately his repentance and her mercy, his surrender and her forgiveness. Could a book, a novel, based on such story be constitutionally banned I think not. The same constitutional test would apply to a film based thereon.'
46. With respect it is not possible to agree with the view taken by Lentin, J., that---
'With the overall impact the film would create on the average audience, it would not at all be likely to appreciate this, and would understand that it is the wife's bounden duty to silently suffer tortures, degradation and shame inflicted on her by a husband howsoever unworthy because he is Pati Parmeshwar as the title of the film itself blazons forth.'
47. In my opinion, the average audience would not be misled in this manner, but on the other hand would view Rekha's character as one which projects Rekha as a person who suffers all the humiliations out of her commitment to marriage and acts in full faith and dedication that ultimately she will be able to straight her matrimonial home.
48. In the view that I have taken viz. 1) Guideline 2(vi-a) is not beyond the scope of section 5-B(1) or is not ultra vires Article 19(2) of the Constitution and (2) that the film 'Pati Parmeshwar' does not any manner violate the said Guideline 2 (iv-a), the Appeal fails and is accordingly dismissed. However, having regard to the points involved and argued by both the sides, I would leave the parties to bear their respective costs.