Vadlapatla Naga Vara Prasad Vs. Chairperson, Central Board of Film Certi - Court Judgment

VILAS V. AFZULPURKAR, J.

ORDER:

1. This writ petition is filed questioning the action of respondents 4 to 8 in portraying the sister of the petitioner in the movie 'The Dirty Picture' in a defamatory and obscene manner and consequential restraint on respondents 1 to 3 from issuing certification for exhibition of this film.

2. On 16.11.2011, when the writ petition was listed for admission, learned standing counsel for respondents 1 to 3 as well as the learned counsel, appearing on caveat, for respondents 4 to 8 sought time to get instructions and the learned counsel for the petitioner also sought time to file additional documents. Hence, the writ petition was directed to be listed on 23.11.2011. On 23.11.2011, counter affidavits on behalf of the contesting respondents were filed and as the petitioner had sought to move additional applications, the writ petition together with such applications were directed to be listed on 28.11.2011. On 28.11.2011, detailed arguments were advanced by all the learned counsel appearing for the parties, hence, listed 'for orders' on 01.12.2011.

3. It is not in dispute that respondents 1 to 3 have granted the certificate for theatrical release of the said film on 18.11.2011 and the petitioner also has sought consequential amendment seeking to challenge the said certificate. The said miscellaneous application WPMP.No.38842 of 2011 was ordered during the hearing of the writ petition on 28.11.2011, as it was not opposed. All the learned counsel have made submissions based on the said amended relief wherein the said certificate itself is questioned as a primary relief in the writ petition.

4. Petitioner claims that his sister - Kum.Vadapatla Vijaya Lakshmi, popularly know as 'Silk Smitha', acted in about 400 films in various South Indian languages and has attained celebrity status as film actress. She, however, died on 23.09.1996 and petitioner claims that he is the only surviving legal heir. Respondents 4 and 5 together with respondents 7 and 8 allegedly produced the film 'The Dirty Picture', which was directed by respondent No.6 under banner of respondent No.8. It is alleged that through the print and electronic media various statements were issued on behalf of respondents 4 to 8 proclaiming that the said film is based upon the life of the said sister of the petitioner resulting in lot of curiosity and unwanted attention to the petitioner's family members and relatives. It is also alleged that neither of the respondents directly or indirectly approached the petitioner nor have obtained any information as to the personal details of the petitioner's sister, but have depicted a derogatory and distorted version of her personality and character, which seriously defames the deceased actress as well as the family of the petitioner. It is also alleged that the said film portrays the petitioner's sister as a woman of very loose and immoral character and the film contains obscene scenes, which are opposed to public morality and decency and deprive and degrade the women in general. The petitioner, therefore, seeks protection by alleging that the right of privacy of the deceased is violated apart from the film being highly defamatory to the person, who is no longer alive to defend it. Along with the writ petition, the petitioner has annexed number of press clippings appearing in regional as well as in English print media, which are said to support the petitioner's allegations, referred to above. The petitioner has also annexed a family member certificate to substantiate that he is the only legal heir of the deceased actress.

5. Counter affidavit is field by respondents 1 to 3 stating that an application for issuance of certificate for the said film was received by the Central Board of Film Certification on 11.11.2011 and the film was examined by a examining committee on 17.11.2011 and as per the recommendation of the said committee, a certificate under category 'A' was issued restricting the exhibition of the film for adult viewing. It is stated that the said certificate is issued in accordance with Section 5-B of the Cinematograph Act, 1952 (for short 'the Act') as well as keeping in view the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India and on being satisfied that the film does not fall within the rarest of the rare cases to which certificate can be denied.

6. Respondents 4 to 8 also filed a counter affidavit denying the locus standi of the petitioner by contending that according to the best of their knowledge, the deceased actress did not leave any immediate family or blood relative surviving. It is also specifically denied that the said film is based on biopic of the said actress and that it portrays the said actress in any obscene or improper manner. The respondents, therefore, assert that the said film is only a fiction and is not based upon the biopic of the said actress and all the statements published in the print as well as electronic media attributing that the said film is based on the real life story of the deceased actress is unauthorized, hearsay and not published with the respondents permission and consent and is merely a conjecture. Reliance, therefore, is placed upon a legal noticed of the petitioner, replied to by the respondent through their counsel under reply dated 03.11.2011 as well as the specific official press release issued by respondent No.8 dated 04.11.2011 addressed to the print media. It is also stated that the counsel for respondents 4 to 8 had earlier specifically addressed to respondents 1 to 3 under their letter dated 09.11.2011 by enclosing the press release, referred to above, that the said film is only a fiction and is neither a biopic nor a biography of the said deceased actress. The counter affidavit, therefore, denies that the said film, in any way, defames the said actress, as alleged and it is specifically denied that the respondents have misused the name of the said actress by making any announcement that the film is a real life story of the said actress. The respondents, therefore, deny that there is any defamation or violation of right to life and liberty under Article 21 of the Constitution of India in any manner and questions the maintainability of the writ petition. A copy of the certificate dated 18.11.2011 issued by respondents 1 to 3 is also annexed to the counter affidavit.

7. During the hearing, Smt. K. Shesharajyam, learned counsel for the petitioner has placed strong reliance upon various publications appearing in the print and electronic media and has placed strong reliance upon the interview of the actress, who acted in the said film, which is allegedly recorded in the television media. A Compact Disc (CD) containing the said interview was also filed requesting the Court to view the CD so that it would be clear to the Court that the film is, undoubtedly, based upon the life of the said actress and it contains highly defamatory and distorted representation of the said deceased actress, which clearly infringes her privacy, reputation and amounts to defaming her and her family and on that ground the maintainability of this writ petition is defended. Learned counsel also submitted that after this Court entertained the writ petition on 16.11.2011, respondents 1 to 3 ought not to have granted the certificate on 18.11.2011 knowing fully well that this Court is seized of the writ petition and as such, the action of respondents 1 to 3 showing undue haste in granting the certificate is rightly questioned by the petitioner. Learned counsel would also submit that the said certificate is contrary to the limitations imposed under Section 5-B of the Act inasmuch as it is not appreciated by respondents 1 to 3 that the said film offends the decency and morality and also involves defamation of the deceased actress.

8. Per contra, Mr. B. Mayur Reddy, the learned standing counsel for respondents 1 to 3 has submitted that on the application for grant of certificate, an examining committee has examined the film on 17.11.2011 and on being satisfied, has recommended issuance of certificate under 'A' category for restricted viewing. Apart from placing reliance upon Section 5-B of the Act, learned counsel also placed reliance upon the notification of the Government of India dated 06.12.1991 issued under in exercise of powers conferred under sub-section (2) of Section 5-B of the Act. Learned counsel contends that certification ensures compliance with several aspects as per the above notification. Learned counsel, therefore, states that all the aspects are kept in mind by respondents 1 to 3 apart from regulation 3, which mandates that the Central Board of Film Certification shall ensure that the film as judged in its entirety from the point of view of overall impact. Learned counsel also placed strong reliance upon the following decisions of the Supreme Court: R. RAJAGOPAL v. STATE OF T.N.1; BOBBY ART INTERNATIONAL v. OM PAL SINGH HOON2; DIRECTOR GENERAL OF DOORDARSHAN v. ANAND PATWARDHAN3 and DIRECTIOR GENERAL OF FILM FESTIVALS v. GAURAV ASHWIN JAIN4

9. Mr. S. Niranjan Reddy, learned counsel appearing for respondents 4 to 8, also contends that the primary allegation of the petitioner with regard to defamation cannot be examined under Article 226 of the Constitution of India and it is for the petitioner to approach the competent civil Court, if according to him, the said film leads to defamation of the petitioner or his deceased sister. Learned counsel also submits that the said film is yet to be released and all the allegations of the petitioner are based upon various statements in the print and electronic media, which have no authenticity so far as respondents 4 to 8 are concerned, including that of the alleged interview of the actress, who has acted in the film. Learned counsel points out that the specific replies by the respondents' counsel to the petitioner's counsel, letters addressed by the respondents' counsel to respondents 1 to 3 and the press statements officially issued by respondent No.8 to print media; all of which are much before the filing of the writ petition, clearly establishes that the film is not based on the life of the deceased actress nor is her biopic or her biography. Learned counsel, therefore, submits that there is no cause of action for even defamation arising in the matter. He has also placed reliance upon a decision of the Delhi High Court in RAGHU NATH PANDEY v. BOBBY BEDI5. Learned counsel referred to the ratio of the decisions of the Supreme Court in K.A. ABBAS v. THE UNION OF INDIA6; RAJ KAPOOR v. STATE7 and LAKSHMI GANESH FILMS v. GOVERNMENT OF ANDHRA PRADESH8 in support of his contentions and urged the Court to dismiss the writ petition at this stage, as not maintainable.

10. On consideration of the rival contentions of the learned counsel, as recorded above, it is apparent that the record does not disclose any statement or representation by respondents 4 to 8 that the said film is a biopic or is a fictional representation of the life of the petitioner's sister. The press note; replies to the legal notice as well as the representation to respondents 1 to 3 on behalf of respondents 4 to 8, on the contrary, reiterate that the said film is merely based on a fictitious character and as such, the character of the heroine in the said film cannot be linked or equated to the sister of the petitioner. The reports published in the print media, which is the basis for this writ petition, cannot be relied upon, as it is well settled that press reports cannot be equated to documentary evidence against a party. In this context it would be appropriate to extract the following para from the decision of the Supreme Court in RAVINDER KUMAR SHARMA v. STATE OF ASSAM9. "25. Newspaper reports regarding the Central Government decision could not be any basis for the respondents to stop action under the Assam Control Order of 1961. The paper reports do not specifically refer to the Assam Control Order, 1961. In fact, Government of Assam itself was not prepared to act on the newspaper reports, as stated in its wireless message. Section 81 of the Evidence Act was relied upon for the appellant, in this behalf, to say that the newspaper reports were evidence and conveyed the necessary information to one and all including the respondents 2 and 3. But the presumption of genuineness attached under Section 81 to newspaper reports cannot be treated as proof of the facts stated therein. The statements of fact in newspapers are merely hearsay [Laxmi Raj Setty v.State of Tamil] 1988 (3) SCC 319 : (AIR 1988 SC 1274)]" In this context, relevant portion of para 3 of the decision of the Supreme Court in Dr. B. SINGH v. UNION OF INDIA10 is extracted as under: 3. ...The petitioner nowhere has stated that he has nay personal knowledge of the allegations made against Respondent No.3. He does not even aver that he made any effort to find out whether the allegations have any basis. He only refers to the representation of Ram Sarup and some paper cuttings of new items. He has not indicated as to whether he was aware of the authenticity or otherwise of the news items. It is too much to attribute authenticity or credibility to any information or fact merely because it found publication in a newspaper or journal or magazine or any other form of communication, as though it is gospel truth. It needs no reiteration that newspaper reports per se do not constitute legally acceptable evidece..."

11. The CD, which the learned counsel for the petitioner urged this Court to consider, is, admittedly, an alleged interview by the actress, who acted in the said film, and not by any of the respondents 4 to 8. Any inference drawn or opinion expressed by print or electronic media or any other person other than respondents 4 to 8, therefore, cannot be relied upon to even, prima facie, find that respondents 4 to 8 have portrayed the real life story of the said deceased actress in the film in question. In view of this, the primary allegation of petitioners remains unsubstantiated and leaves out any consideration of the petitioners' contentions from the standpoint of violation of any right of privacy or reputation of the said deceased actress or her family including the petitioner.

12. Perhaps, realizing the aforesaid, the learned counsel for the petitioner has alternatively supported the submissions by contending that the certificate issued by respondents 1 to 3 does not even take into consideration the aspects of decency or morality and on that ground also the scenes, depicted in the film as reported in the print and electronic media, are required to be taken note of while examining the validity of the said certificate.

13. Firstly, the aforesaid allegation also is based on hearsay evidence, as the film is not released as yet and at the moment, all the allegations of the petitioners are merely speculative based on inference drawn in the print and electronic media, which cannot form basis for finding against the respondents. Secondly, respondents 1 to 3 have examined the film through its examining committee and have issued the certificate for restricted viewing in conformity with the guidelines issued by the Government of India, by judging the film in its entirety for its overall impact.

14. At this stage, it would be appropriate to notice Sections 5-A(1) and 5(B) of the Act as well as the directions of Central Government issued under Section 5-B(2) of the Act vide S.O.836-(E) dated 06.12.1991 and so far as is relevant herein clauses 7, 9, 10, 11 and 18 are reproduced hereunder:. Top of Form 5-A. 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).] 5-B. Principles for guidance in certifying films.-

(1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of1[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 (I), 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.

"GOVERNMENT OF INDIA MINISTRY OF INFORMATION AND BROADCASTING New Delhi, the 6th December, 1991. NOTIFICATION S.O.836-(E) In exercise of the power conferred by sub-section (2) of Section 5 B of the Cinematograph Act, 1952 (37 of 1952) and in supersession of the notification of the Government of India in the Ministry of Information and Broadcasting No.S.O.9(E), dated 7th January 1978, except as respects things done or omitted to be done before such supersession, the Central Government hereby directs that in sanctioning films for public exhibition, the Board of Film Certification shall be guided by the following principles: -

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

(a) the medium of film remains responsible and sensitive to the values and standards of society;

(b) artistic expression and creative freedom are not duly curbed;

(c) certification is responsive to social change;

(d) the medium of film provides clean and healthy environment; and

(e) as far as possible, the film is of aesthetic value and cinematically of a good standard.

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; ...

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

(x) scenes involving sexual violence against women like attempt to rape, rape or any form of molestation, or scenes of similar nature are avoided, and if any such incident germane to the theme, they shall be reduced to the minimum and no details are shown:

(xi) scenes showing sexual perversions shall be avoided and if such matters are germane to the theme, they shall be reduced to the minimum and no details are shown; ...

(xviii) visuals or words involving defamation of any individual or a body of individuals, or contempt of court are not presented:

EXPLANATION: Scenes that tend tot create scorn, disgrace and disregard of rules or undermine the dignity of court will come under the term "contempt of Court" The certificate by respondents 1 to 3 that the said film is certified for restricted adult audience presupposes that the film is not otherwise objectionable and satisfies Section 5-B(1) of the Act as well as the directions under Section 5-B(2), referred to above.

15. Precedentially, reference may be to the decision of the Supreme Court in BOBBY ART INTERNATIONAL's case (2 supra) where the Supreme Court has considered it's earlier decision as well and it would be appropriate to extract para 18 as under: 18. In Raj Kapoor and Ors. v. State: (1980) 1 SCC 43, this Court was dealing with a pro bono public prosecution against the producer, actors and others connected with a film called "Satyam, Sivam, Sundaram" on the ground of prurience, moral depravity and shocking erosion of public decency. A petition to quash the proceedings was moved and procedural complications brought the matter to this Court. One of the questions considered was : when can a film to be publicly exhibited be castigated as prurient and obscene and violative of norms against venereal depravity. Krishna Iyer, J., speaking for the Court, said, "Art, morals and law's manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics. 9. The world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes an prigs and State moralists prescribe paradigms and prescribe heterodoxies. 14. I am satisfied that the Film Censor Board, acting under Section 5-A, is specially entrusted to screen off the silver screen pictures which offensively invade or deprave public morals through over-sex. There is no doubt and Counsel on both sides agree - that a certificate by the high-powered Board of Censors with specialised composition and statutory mandate is not a piece of utter inconsequence. It is relevant material, important in its impact, though not infallible in its verdict. But the Court is not barred from trying the case because the certificate is not conclusive. Nevertheless, the magistrate shall not brush aside what another tribunal has, for similar purpose, found. May be, even a rebuttable presumption arises in favour of the statutory certificate but could be negatived by positive evidence. An act of recognition of moral worthiness by a statutory agency is not opinion evidence but an instance or transaction where the fact in issue has been asserted, recognised or affirmed. 15. I am not persuaded that once a certificate under the Cinematograph Act is issued the Penal Code, pro tanto, will hang limp. The court will examine the film and judge whether its public display, in the given time and crime, to breaches public morals or depraves basic decency as to offend the penal provisions. Statutory expressions are not petrified by time but must be updated by changing ethos even as popular ethics are not absolutes but abide and evolve as community consciousness enlivens and escalates. Surely, the satwa of society must rise progressively if mankind is to move towards its timeless destiny and this can be guaranteed only if the ultimate value-vision is rooted in the unchanging basics, Truth - Goodness - Beauty, Satyam, Sivam, Sundaram.The relation between Reality and Relativity must haunt the Court's evaluation of obscenity, expressed in society's pervasive humanity, not law's penal prescriptions. Social scientists and spiritual scientists will broadly agree that man lives not alone by mystic, squints, ascetic chants and austere abnegation but by luscious love of Beauty, sensuous joy of companionship and moderate non-denial of normal demands of the flesh. Extremes and excesses boomerang although some crazy artists and film directors do practise Oscar Wilde's observation: "Moderation is a fatal thing. Nothing succeeds like excess." Following the above, it was held in para 22 as under: 22. 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 Clause 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 the determined in the light of the relevance of the social theme of the film.

16. In another decision in DIRECTOR GENERAL OF DOORDARSHAN's case (3 supra) the Supreme Court has observed as follows: 32. Therefore, one can observe that, the basic guidelines for the tier of fact must be:

(a) whether " the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest.;

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value. 33. The Constitution of India guarantees everyone the right to freedom of expression. India is also a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof, which states: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in form of art, or through any other media of his choice. 34. This right guaranteed by the Indian constitution is subject to various restrictions. Like, respect of the rights or reputation of others; protection of national security or of public order, or of public health or morals etc. The catchword here is 'reasonable restriction' which corresponds to the societal norms of decency. In the present matter, the documentary film Father, Son and Holy War depicts social vices that are eating into the very foundation of our Constitutional. Communal riots, caste and class issues and violence against women are issues that require every citizen's attention for a feasible solution. Only the citizens especially the youth of our Nation who are correctly informed can arrive at a correct solution. This documentary film in our considered opinion showcases a real picture of crime and violence against women and members of various religious groups perpetrated by politically motivated leaders for political, social and personal gains."

17. Applying the aforesaid tests, therefore, it cannot be said that the certificate granted in favour of respondents 4 to 8 by respondents 1 to 3 is violative of Section 5-B of the Act or otherwise unconstitutional.

18. So far as defamation, as alleged, by the petitioner is concerned, it is already noted that the film is yet to be released and this allegation has to be viewed from the specific stand of the respondents 4 to 8 that the said film is only a work of fiction. It is also specifically stated by respondents 4 to 8 that the film carries a specific disclaimer that the film is a work of fiction and that all characters therein are fictitious and any resemblance to real persons living or dead would be purely coincidental. Thus, even if the film is released and the petitioner feels that it has resulted in damaging his prestige and reputation including that of his deceased sister, the petitioner is not precluded from taking an action for defamation, as observed by the Supreme Court in para 29 of its decision in R. RAJAGOPAL's case (1 supra), which is extracted hereunder for the sake of convenience: 29. Applying the above principles, it must be held that the petitioners have a right to publish, what they allege to be the life-story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But if they go beyond that and publish his life-story, they may be invading his right to privacy and will be liable for the consequences in accordance with law. Similarly, the State or its officials cannot prevent or restrain the said publication. The remedy of the affected public officials/public figures, if any, is after the publication, as explained hereinabove.

19. The contentions of the learned counsel for respondents 4 to 8 based upon the decision of the Delhi High Court in RAGHU NATH PANDEY's case (5 supra) and other decisions deal with wider aspects where a film is based on a real life character but is dramatized and fictionalized for the purpose of cinematographic presentation. In that context it was held that in such situations a fictional modification for dramatic presentation is permissible. However, those wider questions do not arise in the present case and as such it is not necessary to deal with the said part. In the result, the writ petition fails and is accordingly dismissed subject to the liberty, as mentioned in para 18 and consequently, WPMP.No.38045 of 2011 to receive copies of notices as additional material is ordered and WPMP.Nos.37626, 37627, 38415, 38416 and 38843 of 2011 are dismissed. There shall be no order as to costs.