A BOBBY ART INTERNATIONAL

v.

OM PAL SINGH HOON AND ORS.

MAY 1, 1996

B

[AM. AHMADI, C.J., S.P. BHARUf".:HA AND B.N. KRIPAL, JJ.]

Cinematograph Act, .1952 : Section 5-B.

Filmr;-Certification of-Held : Test is Film scenes should advance the

C message which the film intends to convey-A film that depicts consequences

of social evil can show the social evil itself which must be sufficient for the

purpose of the film-Guidelines issued by Central Government under S.

5-B(2) are broad standards and should not be read as a statute-Guidelines

require that human sensibilities are not offended by vulgarity, obscenity or

depravity, degrading or denigrating women-Ulhere the theme of the film is to

D condemn rape and degradation of and violence upon women, scenes of nudity

and

rape and use of expletives in aid of the theme to arouse revulsion against

the perpetrators and pity for the victim,

permissibl&-Cinematograph (Cer­

tification) Rules, 1983, R 24-Constitution of India, 1950, Art, 19(2 ).

E

Section 5-C-Film certification-Grant of Appeal againsHnteiference

by High Court-Held: Appellate Tribunal had viewed film in true perspective

and, in compliance with requirements of guidelines, granted '.A' certifi­

cate-High Court in exercise of writ jurisdiction ought not to have inteifered

with view of Tribunal-Constitution of India, 1950, Art, 226.

p "Bandit Queen" is the story of a village child exposed from an early

age to the brutality

and lust of man. Married off to a man old enough to

be her father she was beaten and raped. The village boys made advances,

which she repulsed but the village panchayat found her guilty of enticement

of a village

boy because he was of high caste and she had to leave the

village.

She was arrested and, in the police station, filthily abused. Those

G who stood bail for her did so to satisfy their lust. She was kidnapped and

raped. During an act of brutality the rapist was shot dead and she found

an ally in her rescuer. With his assistance she beat up her husband,

violently. Her rescuer

was shot dead by one whose advances she had

spurned.

She was gang-raped by the rescuer's assailant and his ac-

H complices and they humiliated her in the sight of the village, a hundred

136

BOBBY ARTINTERNA110NAL v. O.P.S. HOON 137

men standing in a circle around the village well and watching her being A

stripped naked and made to walk around the circle and then made to draw

water.

And not one of the villagers helped her. To avenge herself upon her

persecutors, she joined a dacoits' gang and killed twenty Thakurs

of the

village. Ultimatdy, she surrendered aud was in jail for a number of year.

The

film was presented for certification to the Censor Board under

the Cinematograph

Act 1952. The Examining Co1nmittee of the Censor

Board referred it to the Revising Committee under Rule 24(1) of the

Cinematographic (Certification) Rules, 1983. The Revising Committee

recommended that the film be granted an 'A' certificate, subject to certain

excisions

and n1odifications.

Aggrieved by the decision of the Revising Committee, an appeal was

filed under Section

SC of the Cinematograph Act before the Appellate

Tribunal. The Tribunal comprised of a Chairman, a retired Judge of High

Court, and three ladies as members.

Upon the basis or a unanimous order

B

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of the Tribunal, the film was granted an 'A' certificate. thereafter, the D

respondent filed a writ petition before the High Court seeking to quash

the certificate granted to the

film and to restrain its exhibition in India.

The respondent contended

that though audiences were led to believe that

the film depicted the character of

"a former queen of ravines" also known

as Phoolan

Devi, the depiction was

"abhorr~nt and unconscionable and a

slur on the womanhood of India" and that the respondent and his com·

munity had been depicted in a most depraved way specially in the scene of

rape

by B, which scene was

"suggestive of the moral depravity of the Guijar

community". A Single Judge of the High Court allowed the writ petition

and quashed the certificate granted to the

film Having viewed the film, a

Division Bench of the High Court examined it in regard

to. three aspects

viz. the frontal nudity scene relating to the incident of fetching water from

the

well which ran for two minutes, the scene

sho"ing the naked posterior

of the rapist and use of expletives. Overall, the Division Bench was of the

view that the Tribunal's order was vitiated by the use of the wrong tests

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and dismissed the Letters Patent Appeal filed by the appellant. Hence this G

appeal.

Allomng the appeal, this Court

HELD : 1.1. "Bandit Queen' is not a pretty story. It is the serious

and.sad story of a worm turning a village born female child becoming a

H

138 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A dreaded dacuit. An innocent \Vho turns into a vicious criminal because lust

and brutality have affected her psyche so. The film levels an accusing finger

at members of society who had tormented the victim and driven her to become

a dreaded dacoit filled with the desire

to revenge. TI1e

Court should recognise

the message of a serious

film and apply this test to the individual scenes

B thereof; do they advance the message

? If they do they should be left alone,

with only the caution of an 'A' certificate. Adult Indian citizens as a

whole may

be relied upon to comprehend intelligently the message and react to it, not

to the possible titillation of some particular scene. [154-A-B]

c

1.2. The scene where she is humiliated, stripped naked, paraded,

made to draw water from the well, within the circle of a hundred men, the

exposure of

her breasts and genitalia to those men is intended by those

who strip her to demean her. The effect of so doing upon her could hardly

have been better conveyed than by explicitly showing the scene. Nakedness

does

not always arouse the baser instinct. 'Bandit Queen' tells a powerful

D human story and to that story the scene of her enforced naked parade is

central.

It helps to explain why she became what she did : her rage and

vendetta against the society

that had heaped indignities upon her. The rape

scene also helps to explain

why she became what she did. Rape is crude

and it crudity is what the rapist's bouncing bare posterior is meant to

E illustrate. Rape and sex

are not being glorified in the film. Quite the

contrary, it shows what a terrible,

and terrifying, effect rape and lust can

have

upou the victim. It focuses on the trauma and emotional turmoil of

the victim to evoke sympathy for her

and disgust for the rapist. Too much

need not be made o[ a few

s\vear words the like of which can be heard

F

everyday in every city, town and village street. No adult would be tempted

to use them because they

are used in this film.

[154-C-H; 155-A]

1.3. The judgment under appeal does not take due note of the theme

of the film

and the fact that it condemns rape and the degradation of and

violence upon women

by showing their effect upon a village child, trans-

G forming her to a cruel dacoit obsessed with wreaking vengeance upon a

society

that has caused her so much psychological and physical hurt, and

that the scenes of nudity and rape and the use of expletives, so far as the

Tribunal

had permitted them, were in aid of the theme and intended not

to arouse

prurient or lascivious thoughts but revulsion against the per-

H petrators and pity for the victim. [155-H; 156-A-B)

-{

BOBBY ART INTERNAT10NAL v. O.P.S. HOON 139

2. A film that illustrates the conse11uences of a social evil necessarily A

must show that social evil. The guidelines must be interpreted in that light.

No film that extols the social evil or encourages it is permissible, but a

film that carries the message that the social evil is evil cannot be n1ade

impermissible on the ground that it depicts the social evil. At the same

time, the depiction must

be just suflicient

for the purpose of the film, the

drawing of the line

is best left to the sensibilities of the expert Tribunal.

The Tribunal

is a multi-member body. It is comprised of persons who

gauge public reactions to films and, except in cases of stark breach of

guidelines, should

be permitted to go about its task. The guidelines are

broad standards; they cannot

be read as one would read a statute. Within

B

the breadth of their parameters the certification authorities have discre- C

lion. [155-C-D; 153-C]

3. In the present case, apart from the Chairman, three me1nbers of

the Tribunal were women. It is hardly to be supposed that three women

would permit a film to be screened,

which denigrates women, insults D

Indian womanhood or is obscene or pornographic. It would appear from

its order

that the Tribunal took the view that it would do women some

good to see the film. The Tribunal had

viewed the film in true perspective

and bad, in

compliance with the rec1uirements of the guidelines, granted

to the film an 'A' certificate subject to the conditions it stated. The High

Court ought nut to have entertained the first respondent's writ petition

imp.ugning the grant of the certificate based as it was principally upon the

slurs allegedly cast

by the film on the Guljar community. Therefore, the "A" certificate issued to the film "Bandit Queen" upon the conditions

imposed

by Appellate Tribunal is restored. [155-E-H; 156-C]

KA. Abbas v.

Union of India, [1970]2 SCC 780; Raj Kapur v. State,

(1980) 1 SC 43; Samaresh Bose v.Amal Mitra, [1985] 4 SCC 289; State of

Bihar v. Shailaba/a Devi, [1952] SCR 654; Sakal Papers (P) Ltd. v. Union

of India, [1962] 3 SCR 842 and L!C v. Prof Manubhai D. Shah, (1992] 3

sec 637, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7522 of

1996 Etc.

From the Judgment and Order dated 26.3.96 of the Delhi High Court

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in L.P.A. No. 43 of 1996. H

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140 SUPREME COURT REPORTS [1996j SUPP. 2 S.C.R.

M. Chandrasekharan, Additional Solicitor General, Soli J. Sorabjee,

H.N. Salve, Dr. Rajiv Dhavan, A.H. Desai, Shridhar Chitale, Mt>kul

Mudgal, Ms. Neeru Vaid, S. Muralidhar, Nikhil, Ms. Meenakshi, LR.

Singh, Dcvendra Singh, Nandan Sawhney, Indrabir S. Alag, Dr. A.K. Kaul,

Rakesh C. Agrawal, K.K. Kaul, K.S. Chauhan, T.C. Sharma, B.K. Prasad,

Aruneshwar Gupta, Ms. Namita Chadha, N. Ramachandran, Manish Garg,

for the appearing parties.

The Judgment of the Court was delivered by

BHARUCHA, J. Special leave granted.

These appeals impugn the judgment and order of a Division Bench

of the High Court of Delhi in Letters Patent appeals. The Letters Patent

appeals challenged the judgment and order of a learned single Judge

allowing a writ petition. The Letters Patent appeals were dismissed, subject

to a direction to the Union of India (the second respondent). The writ

D petition was filed by the first respondent to quash the certificate of exhibi­

tion awarded to the film

11

Bandit Queen

1

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and to restrain its exhibition in

India.

The

film deals with the life of

Phoolan Devi. It is based upon a true

story. Still a child, Phoolan Devi was married off to a man old enough to

E be her father. She was beaten and raped by him. She was tormented by

the boys of the village; and beaten

by them when she foiled the advances

of one of them. A village

Panchayat called after the incident blamed

Phoolan Devi for attempting to entice the boy, who belonged to a higher

caste. Consequent upon the decision of the village panchayat, Phoolan Devi

F had to leave the village. She was then arrested by the police and subjected

to indignity and humiliation in the police station. Upon the intervention of

some persons she was released on bail; their intervention was not due to

compassion but to satisfy their carnal appetite. Phoolan Devi was thereafter

kidnapped by dacoits and sexually brutalised

by their leader, a man named

Babu Gujjar. Another member of the gang, Vikram Mallah, shot Babu

G Gujjar dead in a fit of rage while he was assaulting

Phoolan Devi. Phoolan

Devi was attracted by Vikaram Mallah and threw her lot in with him: Along

with Vikram Mallah she accosted her husband, tied him to a tree and took

her revenge by brutally beating him.

One

Shri Ram, the leader of a gang

of Thakurs, who had been released from jail, made advances to Phoolan

H Devi and was spurned. He killed Vikram Mallah. Having lost Vikram

'

BOBBY ARTINTERNATIONAL v. O.P.S. HOON [BHARUCHA,J.] 141

Mallah's protection, Phoolan Devi was Gang-raped by Sri Ram, Lalaram A

and others. She was stripped naked, paraded and made to fetch water from

the village

well under the gaze of the villagers, but no one came to her

rescue. To avenge herself upon her persecutors, she joined a dacoits' gang

headed

by Baba Mustkin. In avenging herself upon

Sri Ram, she humiliated

and killed twenty Thakurs of the village of Behmai. Ultimately, she sur­

rendered and was in jail for a number of years.

(We have not viewed the

film. The story thereof as set out above

come from the judgment under appeal.)

B

The film is based on a book written by Mala

Sen called "India's C

Bandit Queen". The book has been in the market since the year 1991

without objection.

On 17th August, 1994, the film was presented for certification to the

Censor Board under the Cinematograph Act,

19S2. The Examining

Com­

mittee of the Censor Board referred it to the Revising Committee under D

Rule 24(1) of the Cinematographic (Certification) Rules, 1983. On 19th

July,

199S, the Revising Committee recommended that the film be granted

an 'A' certificate, subject to certain excisions and n1odifications. (An 'A'

certification implies that the film may be viewed only by adults).

Aggrieved by the decision of the Revising Committee, an appeal

was

filed under Section SC of the Cinematographic Act before the Appellate

Tribunal.

It is constituted by virtue of the provisions of Section SD of the

Cinematograph Act and consists of a Chairman and members

who

__,,are

qualified to judge the effect of films on the the public".In the present case

the Tribunal

was chaired by Lentin, J., a retired Judge of the Bombay High

Court, and three ladies,

Smt. Sara Mohammad, Dr. Sarayu V. Doshi &

Smt. Reena Kumari, were its members.

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F

The Tribunal's order states that the film "portrays the trials and

tribulations and the various humiliations (mental and physical) heaped on

G

her

(Phoolan Devi) from childhood onwards, which out of desperation and

misery drove her to dacoity and the revenge which she takes on her

tormentors and those

who had humiliated and tortured and had physically

abused her.

3.1. The tone and tenor of the dialogues in this

film reflect the H

142 SUPREME COURT REPORTS {1996J SUPP. 2 S.C.R.

A nuances locally and habitually used and spoken in the villages and in the

ravines of the Chambal, not berell of expletives used for force and effect

by way of nonnal and common parlance in those parts; these expletives are

not intended lo be taken literally. There is nothing sensual or sexual about

these expletives used

as they arc in ordinary and habitual course as part of

B

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G

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the language in those parts and express as

they <lo emotions such as anger,

rage, fn1'tration and the like, and represent as they do the color of the

various locales in this film."

The Tribunal accepted the argument of the appellant before it in

respect of certain scenes \.\'here exicisions or n1odifications had been re­

quired. We shall rcstrir.:t ourselves to the Tribunal's findings on the scenes

which are presently in dispute, and to observations relating to the film as

a whole. A scene of policemen hitting Phoolan Devi with the butt of a gun

had been ordered to be deleted; the Tribunal said that the deletion "would

negate the very impact of this film in its emkavor to depict the maltreat­

ment and cruelty heaped upon the victim

by the perpetrators, which

resulted

in

the forn1er turning her face against, and seeking revenge on, the

perpretrators of her humiliation and degradation. Deletion or even reduc.:­

tion of this sequence would have a deleterious effect on the powerful

sequences which

follow, as it would also

leave the average audience be­

wildered

as to the intensity of the bitterness the victim rightly feels towards

her tormentors." Another scene dealt with the rape of Phoolan Devi

by

Babu Gujjar. The sequence was in three parts and the appellant had

volunteered

to reduce the first two sequences

'

1

to the bare cinematic

necessity;"' the Tribunal did not accept this, having ascertained what was

meant. It directed that the second of the three sequences be deleted

altogether, and that there be a reduction

by

30% of the first sequence and

by 20% of the third sequence, with the qualification that the visuals of the

man's bare posterior in the first and third sequences be reduced to a flash.

Exception was taken before the Tribunal to the direction to reduce by 70%

the sequence of Phoolan Devi torturing her husband. The Tribunal found

that the sequence brought to the fore the ferocity of Phoolan Devi's hatred

and revulsion towards the man

who drove her to being the hunted dacoit

she becan1e.

Phoolan Devi's pent-up, anger, emotions and revulsion were

demonstrated

in the scene. It was a powerful scene the reduction of which

would negate

its impact. Much emphasis was laid before us upon the fact

that Phoolan

Devi is shown naked being paraded in the village after being

humiliated. The Tribunal observed that these

visuals could but create

BOBBY ART INTERNATIONAL v. O.P.S. HOON [Bl-JAR UCHA, J.] 143

sympathy towards the unfortunate woman in particular and revulsion A

,,._.,_ against the perpetrators of crimes against women in general. The sequence

was an integral part of the story. It was not sensual or sexual, and \Vas

intended to, as indeed il did, create revulsion in the minds of the average

audience towards the tormentors and oppressors of women. ''To delete or

even to reduce these climactic

visuals

1

1, the Tribunal said, '\vould be a

sacrilcgc

11

• It added,

11

4.9.1. While recommending the deletion of the visuals

arofestated, perhaps the Revising Committee momentarily forgot

"Sehindler's List" which was passed by the Board without a cut and despite

prolonged sequences of frontal nudity of men and women depicted therein,

and rightly so because the scenes of frontal nudity in that film were

intended to create a feeling of revulsion and a sense of horror that such

crimes could indeed be committed. Likewise in the present film." The

Tribunal permitted certain words of abuse in the vernacular lo

be retained

because of the context in which they were spoken and the persons

by whom

they were spoken :

"spoken as they are as colloquially and as part of their

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daily life, it would be unfair on our part lo castigate the use of these words D

which we would other\vise have donc

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Upon the basis of this unanimous order of the Tribunal, the film was

granted an 'A' certificate.

On 31st August, 1995, the film was screened, with English sub-titles, E

at the Siri Fort Auditorium on the occasion of the 27th International Film

Festival of India with the permission of the Ministry of Information and

Broadcasting. From 25th January,

1996, onwards, the censored film was

open lo public viewing at various cinema theatres in the country. On 27th January, 1.996, the first respondent filed the writ petition

before the Delhi High Court seeking to quash the certificate granted to the

fihn and to restrain its exhibition in India. The first respondent stated in

F

the writ petition that he was a Hindu and a Gujjar by caste. He was the

President of the Gujjar Gaurav Sansthan and involved in the welfare of the

Gujjar community. He had seen the

film when it was exhibited at the G

International Film Festival; he had felt aggrieved and his fundamental

rights had been violated. Though audiences were led to believe that the

filn1 depicted the character of

11

a former queen of ravines

11

also known as

Phoolan Devi, the depiction was "abhorrent and unconscionable and a slur

on the \VOn1anhood of India!!. The petitioner and his community had been H

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144 SUPREME COURT REP OR TS [1996] SUPP. 2 S.C.R.

depicted in a most depraved way specially in the scene of rape by Babu

Gujjar, which scene

was "suggestive of the moral depravity of the Gujjar community''. The film depicted the petitioner and his community as rapists

and the used of the name Babu Gujjar for the principal villain lowered the

reputation of the Gujjar community and the petitioner.

It lowered the

respect of the petitioner

in the eyes of society and his friends. The scene

of rape

was obscene and horrendous and cast a slur on the face of the

Gujjar community. The

film went beyond the limits of decency and lowered

the prestige and position of the woman

in general and the community of

Mahallas

in particular. The first respondent had been discriminated against

and Articles

14, 19 and 21 of the

Constitution had been violated.

The learned Single Judge allowed the writ petition and quashed the

certificate granted to the

film. He directed the

Censor Board to consider

the grant of an 'A' certificate to it after excisions and modifications in

accordance with his order had been made. Till a fresh certificate was

granted the screening of the film was injuncted.

The Division Bench,

in the judgment under appeal, upheld the view

taken by the learned single Judge. Having viewed the film, it examined it

in regard lo three aspects. The first dealt with the frontal nudity scene. The

scene, the Division Bench said, ran for a full

two minutes. The heroine was

stripped totally naked in the gaze of about a hundred villagers standing in

the circle at a distance around a well and she

was paraded nude from head

to toe all along the circle, with her front, including her private parts,

exposed. The Division Bench noted the findings of the Tribunal in regard

to this scene (which have been referred to above) and held,

"in the face of

a finding by the Appellate Tribunal of the scene creating revulsion, the only

inference could have been that the scene of total frontal nudity from top

to toes

was 'indecent' within Section 5-B and Article 19(2)". The scene also

offended the guidelines in para 2(ix), para 2(xi) and para 2(vii). The second

aspect that was considered by the Division Bench was that which showed

the naked posterior of Babu Gujjar in the rape scene. As noticed

by the

G

Division Bench by stop watch, this scene ran for about 20 seconds. It

showed sexual intercourse by the man and his physical movement, with his

posterior exposed. The High Court took that the view that the direction of

the Tribunal that the posterior should be shown as a flash was inconsistent

with retention of 70% and 80% of the first and third sequences as directed

H by the Tribunal. The scene of violent rape was disgusting and revolting and

BOBBY ARTINTERNATIONAL v. O.P.S.HOON [BHARUCHA,J.] 145

it denigrated and degraded women. The third aspect that the High Court A

concerned itself with was the use of expletives and it concluded that they

should be deleted. Over-all, the Division Bench

was of the view that the

Tribunal's order

was vitiated by the use of the wrong tests.

Section

5-B of the Cinematograph Act, which echoes Article 19(2),

states that a film shall not be certified for public exhibition if, in the opinion

of the authority competent to grant

the certificate, the film or any part of

it

is against the interests of, inter alia, decency.

Under the provisions of

sub-section

(2) of Section 5-B the Central Government is empowered to

issue directions setting out the principles which shall guide the authority

competent to grant certificates in sanctioning films for public exhibition.

The guidelines earlier issued were revised in

1991. Clause (1) thereof

reads 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;

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

( c) certification is responsive to social change;

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

and

(

e) as far as possible, the film is of aesthetic value and cinematically

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of a good

standard." F

Clause (2) states that the Board of Film Censors shall ensure that -

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

or depravity;

xxx xxx xxx

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

presented;

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(ix) scenes involving sexual violence against won1en like attempt to H

146

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SUPREME COURT REPORTS [1996) SUPP. 2 S.C.R.

rape, rape or any form of molestation or scenes of a similar natt:re

arc avoided, and if any such incident is germane to the theme, they

sh~ll be reduced to the minimum and no details are shown;

xxx xxx xxx"

B Clause (3) reads thus :

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'The Board of Film Certification shall also ensure that

the film -

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

impact; and

(ii)

is examined in the light of the period depicted in the film and

the contemporary standards of the country and the

peoplo to which

the

film

relates, provided that the film does not deprave the

morality of the audience."

Learned counsel for the appellants submitted that the

film had been

scrutinised

by the Tribunal, which was an expert body constituted for that

purpose, and it had

pas;ed the test of such scrutiny. It was emphasised that

three members of the four-member Tribunal were ladies and they had not

found anything offensive in the

film as certified for adult viewing. The

guidelines, it

was submitted, required the film to be seen as a whole and,

seen as a whole, the

film did not offend either Section 5-B(i) or the

guidelines. The submission of learned counsel for the appellants was

supported by

the learned Additional Solicitor General, appearing for the

Union of India. Dr. Kou], learned counsel for the first respondent, sub-

mitted that the machinery under the Cinematograph Act was only for those

who had some concern with the making of the

film and that citizen who

were offended

by it were free to approach the High Court under Article

226. There were compelling reasons for the High Court to pass the order

that it did for the

film was abhorrent. What had also to be considered were

the individual episodes and the episodes depicting

full frontal nudity, rape

G and the use of swear words offended the requirements of sub-clauses (vii),

(ix) and (x) of the guidelines. The film violated the freedom of speech and

expression of the first respondent.

The decision of this Court most relevant to the appeals before us was

delivered by a Constitution Bench in KA. Abbas v. The Union of India &

H Anr., [1970] 2 S.C.C. 780. It related to a documentary film entitled "A Tale

--..:.::::

BOBBY ARTINTERNATIONAL v. 0.P.S. HOON [BHARUCHA,J.] 147

of Four Cities". The appellant contended in a petition under Article 32 that A

he was entitled to a certificate for unrestricted public exhibition thereof.

What Hidayatullah, C.J., speaking for the Court, said needs to be

reproduced :

"49. We may now illustrate our meaning how even the items

mentioned in the directions may figure in

films subject either to

their artistic merit or their social value over-weighing their offend-

ing character. The task of the censor

is extremely delicate and his

duties cannot be subject

of an exhaustive set of commands

estab­

lished by prior ratiocination. But direction is necessary to him so

that he does not sweep within the terms of the directions vast areas

of thought, speech and expression of artistic quality and social

purpose and interest. Our standards must be so framed that

we

are not reduced to a level where the protection of the least capable

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and the most depraved amongst us determines what the morally

healthy cannot view or read. The standards that

we set for our D

censors must make a substantial allowance in favour of freedom

thus leaving a vast area for creative art to interpret

life and society

with some of its foibles along with what

is good. We must not look

upon such human relationships

as banned in toto and for ever from

human thought and must give scope for talent to put them before

society. The requirements of art and literature include within

themselves a comprehensive view of social life and not only in its

ideal form and the line

is to be drawn where the average moral

man begins to feel embarrassed

or disgusted at a naked portrayal

E

of life without the redeeming touch of art or genius or social value.

If the depraved begins to see in these things more than what an

average person would, in much the same way, as, it is wrongly said,

F

a

FrenChman sees a woman's legs in everything, it cannot be

helped. In our scheme of things ideas having redeeming social or

artistic va]ue must also have importance and protection for their

growth. Sex and obscenity are not always synonymous and it is

wrong to classify sex as essentially obscene or even indecent or G

immoral. It should be our concern, however, to prevent the use of

sex designed to play a commercial role by making its own appeal.

This draws in the censor's scissors. Thus audiences in India can

be expected to view with equanimity the story of Oedipus son of

Latius who committed patricide and incest with his mother. When H

A

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G

H

148 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

the seer Tiresias exposed him, his sister Jocasta committed suicide

by hanging herself and Oedipus put out his own eyes. No one after

viewing these episodes would think that patricide or incest with

one's

own mother is permissible or suicide in such circumstances

or tearing out one's

own eyes is a natural consequence. And yet if

one goes

by the Jetter of the directions the film cannot be shown.

Similarly, scenes depicting leprosy

as a theme in a story or in a

documentary are not necessarily outside the protection.

If that

were

so Verrier Elwyn's

Phulmat of the Hills or the same episode

in Henryson's Testament of Cressaid (from where Verrier Elwyn

borrowed the idea) would never see the light

of the day. Again

carnage and bloodshed may have historical value and the depiction

of such scenes as the

Sack of Delhi by Nadirshah may be permis­

sible, if handled delicately and as part of an artistic portrayal of

the confrontation with Mohammad Shah Rangila. If Nadir Shah

made golaothes of skulls, must we leave them out of the story

because people must be made to

view a historical theme without

true history

? Rape in all its nakedness may be objectionable but

Voltaire's Candide would be meaningless without Cunegonde's

episode with the soldier and the story of Lucrece could never be

depicted on the screen. 50. Therefore it is not the elements of rape, leprosy, semal im­

morality with 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 documen­

tary

on the erotic tableaux from our ancient temples with

equanimity or read the Kamasutra but a documentary from them

as a practical sexual would be abhorrent.

51. We have said all this to show that the items mentioned in the

directions arc not

by themselves defective. We have adhered to

the

43 points of

T.P. O'Connor framed in 1918 and have made a

comprehensive list of what

may not be shown. Parliament has left

this task to the Central Government and,

in our opinion, this could

be done. But Parliament has not legislated enough, or has the

c.

BOBBY ARTINTERNATIONAL v. O.P.S. HOON [BHARUCHAJ.] 149

Central Government filled in the gap. Neither has separated the

artistic and the socially valuable from that which

is deliberately

indecent, obscene, horrifying or corrupting. They have not

indi­

cated the need of society and the freedom of the individual. They

have thought more of the depraved and less of the ordinary moral

man. In their desire to keep films from the abnormal, they have

excluded the normal. They have attempted to bring down the

public motion picture to the level of home movies."

In Raj Kapoor & 01'·. v. State of Ors., [1980] 1 S.C.C. 43, this Court

\Vas dealing \Vith a.pro bona public prosecution against the producer, actors

A

B

and others connected with a film called "Satyam, Sivam, Sundaram" on the C

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, D

11

Art, morals and la\v'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

E

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 F

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- G

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

incon­

sequence. 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 H

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150 SUPREME COURT REPORTS [l996J SUPP. 2 S.C.R.

magistrate shall not brush aside what another tribunal has, for

similar purpose, found. May be, even a rebuttable presumption

arises in favour

of the

statutnry 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, tu 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 ~ven as popular ethics arc nut absolutes but abide

and evolve as cornn1unity consciousness enlivens and escalates.

Surely, the satwa of society must rise progressively if mankind i.s

to move lo\vards its tin1elcss destiny and this can be guaranteed

only if lhe ultimate value-vision is rooted in the unchanging basics,

"fruth -Goodness -Beauty, Satyam, Sivam, Sun<laran1. The relation

between Reality and Relativity must haunt the Court's evaluation

of obscenity, expressed in society's pervasive humanity, not la\v's

penal prescriptions. Social scientists and spiritual scientists will

broadly agree thal inan 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 Ocsh. Extremes and excesses boomerang although

some crazy artists and lilm directors do practise Oscar Wilde's

observation : "Moderation is a fatal thing. Nothing succeeds like

excess".

In San1aresh Bose and Anr. v. Ania! .Afitra and Anr., [ l985J 4 S.C.(~.

289, this Court \Vas concerned \vith a normal entitled "Prajapati"; it was

G published in Sarodiya Desh, which was read by Bengalis of both sexes and

almost of

all ages all over

India. A complaint was longed that the novel

was obscene and had the tendency to corrupt the morals of its readers.

This Court said :

H

"A vulgar \Vriting is not necessarily obscene. Vulgarity arouses a

•

~-.

BOBBY ART INTERNATIONAL v. O.P.S. HOON [BHARUCHA,J.) 151

feeling of disgust and revulsion and also boredom but does not A

have the effect of depraving, debasing, and corrupting the morals

of any reader of the novel, whereas obscenity has the tendency to

deprave

and corrupt those

\Vhose 111inds are open to such i1nmoral

inf111ences. We n1ay observe that characters like Sukheni Shikha,

the father and the brothers of Sukhen, the business executives and

others portrayed

in the book arc not just figments of the author's

imagination. Such characters

are often to be seen in real life in the

society. The author who is a powerful writer has used his skill in

focussing the attention of the readers on such characters in society

B

c

and lo describe the situation more eloquently has had used uncon­

ventional and slang words

so that in the light of the author's

understanding, the appropriate emphasis

is there on the problems.

If we place ourselves in the position of the author and judge the

novel from his point of

view, we find that the author intends to

expose various

evils and ills pervading the society and to pose with

particular emphasis the problems which ail and

afflict the society

in various spheres. He has used his own technique, skill and choice D

of words which may in his opinion, serve properly the purpose of

the novel.

J f

\Ve place ourselves in the position of readers, \vho are

likely to read this book, -and we must not forget that in this class

of readers there

will probably be readers of both sexes and of all

ages between teenagers and the aged, - we feel that the readers as

a

class \.Vill rea<l the book \vith a sense of shock, and disgust and

we do not think that any reader on reading this book would become

depraved, debased and encouraged to lasciviousness. It i". quite

possible that they con1c across such characters and such situations

in life and have faced them of may have to face them in life. On

a very anxious consideration and after carefully applying our judi­

cial mind making an objective assessment of the novel

we do not

think that it can be said with an assurance that the novel

is obscene

merely because slang and unconventional words have been used

in the book

in which there have been emphasis on sex and descrip-

E

F

tion of female bodies and there are the narrations of feelings, G

thoughts and actions in vulgar language. Some portions of the book

may appear to be vulgar and readers of cultured

artd refinded taste

may

fell shocked and disgusted. Equally in some portions, the

words used and description given may not appear to be in proper

taste.

In some places there may have been an exhibition of bad

taste leaving

it to the readers of experience and maturity to draw H

152

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SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

the necessary inference but certainly not sufficient to bring home

lo the adolescents any suggestion which is depraving or lascivious.

We have to bear in mind that the author has

written this novel

which came

to be published in the Sarodiya Dcsh for all classes

of readers and it cannot be right to insist that the standard should

always be for the writer to see that the adolescent may not

be

brought into contact with sex. It a reference to sex by itself in any

novel

is considered to be obscene and not fit to be read

by

adolescents, adolescents will not be in a position to read any novel

and "will have to read books which are purely religious".

C In The State of Bihar v. Shailabala Devi, [1952] S.C.R. 654, Mahajan,

J. said that a writing had to be considered as a whole and in a fair and free

and liberal spirit, not dwelling too much upon isolated passages or upon a

strong word here and there, and an endeavour

had to be made to gather

the general effect which the whole composition would have

on the mind of

the public. Mukherjee, J., concurring with Mahajan, J., observed that the

D writing had to be looked at as a whole without laying stress on isolated

passages

or particular expressions used here and there and that the Court

had to take into consideration what effect the writing was likely to produce

on the minds of the readers for whom the publication

was intended.

Account

had

also lo be taken of the place, circumstances and occasion of

E the publication, as a clear appreciation of the back[,'TOund in which the

words were used was of very great assistance in enabling the court to view

them in their proper perspective.

F

G

In Sakal

Papers (P) Ltd. and Ors. v., Union of India, [1962] 3 S.C.R.

842, a Constitution Bench held that the only restrictions which can be

imposed on the rights of an individual under Article 19(l)(a) were those

which clause (2) of Article

19 permitted and no other. This was reiterated

in

Life

Insurance Corporation of India v. Prof Manubhai D. Shah, [1992] 3

s.c.c. 637.

The guidelines aforementioned have been carefully drawn. They

require the authorities concerned with film certification to be responsive

to the values and standards of society and take note of social change. They

are required to ensure that

!!artistic expression and creative freedom are

not unduly curbed". The film must be "judged in its entirety from the point

H of view of its over-all impact". It must also be judged in the light of the

BOBBY ARTINTERNATIONAL v. 0.P.S.HOON[BHARUCHA,J.] 153

period depicted and the contemporary standards of the people to whom it A

relates, but it must not deprave the morality of the audience. Clause 2

requires that human sensibilities are not offended

by vulgarity, obscenity

or depravity, that scenes degrading or denigrating women are not

presented and scenes of sexual violence against women arc avoided, but if

such scenes are germane

to the theme, they be reduced to a minimum and B

not particularised.

The guidelines are broad standards. They cannot be read

as one

would read a statute. Within the breadth of their parameters the certifica-

tion authorities have discretion. The specific sub-ciauscs of clause 2 of the

C

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 sen­

sibilities 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 Jight

of the relevance of the social theme of the film.

'Bandit Queen' is the story of a village child exposed from an early

age lo the brutality and lust of man. Married off to a man old enough to

be her father she

is beaten and raped. The village boys make advances

which she repulses; but the village panchayat finds her guilty of enticement

of a village boy because he

is of high caste and she to leave the village.

She

is arrested and, in the police station, filthily abused. Those who stand bail

for her do so to satisfy their lust. She is kidnapped and raped. During an

D

E

F

act_ of brutality the rapist is shot dead and she finds an ally in her rescuer.

With

his assistance she beats up her husband, violently. Her rescuer is shot

dead

by one whose advances she had spurned.

She is gang-raped by the

rescuer's assailant and

his accomplices and they humiliate her in the sight G

of the village : a hundred men stand in a circle around the village well and

watch the humiliation, her being stripped naked and walked around the

circles and then made

to draw water. And not one of the villagers helps

her.

She burns with anger, shame and the urge for vengeance. She gets it,

and kills many Thakurs too. H

154 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A It is not a pretty story. There are no syrupy songs or pirouetting

round trees.

It is

the serious and sad story of a worm turning : a village

born female child becoming a dreaded dacoit. An innocent who turns into

a vicious criminal because lust and brutality have affected her psyche so.

The

film levels an accusing finger at members of society who had tor-

B mented Phoolan Devi and driven her to become a dreaded dacoit filed with

the desire to revenge.

c

It is in this light that the individual scenes have to be viewed.

First, the scene where she

is humiliated, stripped naked, paraded,

made to draw water from the

well, within the circle of a hundred men. The

exposure of her breasts and genitalia to those men

is intended by those

who strip her to demean her. The effect of so doing upon her could hardly

been better conveyed than by explicitly showing the scene. The object of

doing

so was to titillate the cinema-goer's lust but to arouse in him

D sympathy for the victim and disgust for the perpetrators. The revulsion that

Tribunal referred to

was not at Phoolan Devi's nudity but at the sadism

and heartlessness of those

who had stripped her naked to rob her of every

shred of dignity. Nakedness does not

always arouse the baser instinct. The

reference

by the Tribunal to the film 'Schindler's List' was apt. There is a

E

F

scene in it of rows of naked men and women, shown frontally, being led

into the gas chambers of a Nazi concentration camp. Not only are they

about to die but they have been stripped

in their last moments of the basic

dignity of human beings. Tears are a likely reaction; pity, horror and a

fellow feeling of shame are certain, except in the pervert

who might be

aroused. We do not censor to protect the pervert or to assuage the

susceptibilities of the over-sensitive. 'Bandit Queen' tells a powerful human

story and to that story the scene of Phoolan Devi's enforced naked parade

is central. It helps to explain why Phoolan Devi became what she did : rage

and vendetta against the

society that had heaped indignities upon her.

G The rape scene also helps to explain why Phoolan Devi became what

she did. Rape

is crude and its crudity is what the rapist's bouncing bare

posterior

is meant to illustrate. Rape and sex are not being glorified in the

film. Quite the contrary. It shows what a terrible, and terrifying, effect rape

an lust can have upon the victim.

It focuses on the trauma and emotional

H turmoil of the victim to evoke sympathy for her and disgust for the rapist.

BOBBY ARTINTE!{NA110NAL v. O.P.S. HOON [BHARUCHA,J.] 155

Too much need not, we think, be made of a few swear words the like A

of which can be heard every day in every city, town and village street. No

adult would be tempted to use them because they are used in this film.

In sum, we should recognise the massage or a serious film and apply

this test

to the individual scenes thereof : do they advance the message

'!

If they do they should be left alone, with only the caution of an 'A'

certificate, Adult Indian citizens as a whole may be relied upon to com­

prehend intelligently the message and react to

it, not to the

possible

titillation of some particular scene.

A

film that illustrates the consequences of a social evil necessarily

must that social

evil. The guidelines must be interpreted in that light. No

film that extols the social evil or encourages it is permissible, but a film

B

c

that carries the message that the social evil is evil cannot be made imper­

missible

on the ground that it depicts the social evil. At the same time, the

depiction must be just sufficient for the purpose of the

film. The drawing D

of the line

is best left to the sensibilities of the export Tribunal. The

Tribunal

is a multi-member body. It is comprised of persons who gauge

public reactions to films and, except in cases of stark breach of guidelines,

should be permitted to go about its task.

In the present case, apart from the Chairman, three members of the

Tribunal were women.

It is hardly to be supposed that three women would

permit a

film to be screened which

denib>rates women, insults Indian

womanhood or

is obscene or pornographic. It would appear from its order

that the Tribunal took the

view that it would do women some good to see

the

film.

E

F

We are of the opinion that the Tribunal had viewed the film in true

perspective and had,

in compliance with the requirements of the

guid~lines,

granted to the film an "A" certificate subject to the conditions it stated. We

think that the High Court ought not

to have entertained the 1st G

respondent's writ petition impugning the grant of the certificate based as

it

was principally upon the slurs allegedly cast by the film on the Gujjar

community. We find that the judgment under appeal does not take due

note of the theme of the

film and the fact that it condemns rape and the

degradation of and violence upon women

hy showing their effect upon a H

156 SUPREME COURT REPORTS [1996j SUPP. 2 S.C.R.

A village child, transforming her to a cruel dacoit obsessed with wreaking

vengeance upon a society that

has caused her so much psychological and

physical hurt, an that the scenes of nudity and rape and the use of

expletives, so far

as the Tribunal had permitted them, were in aid of the

theme and intended not to arouse prurient or lascivious thoughts but

B revulsion against the perpetrators and pity for the victim.

c

The appeals are allowed. The judgment and order under appeal is

set aside. The 1st respondent's writ petition is dismissed. The

11

A

11

certifi­

cate issued to film "Bandit Queen" upon the conditions imposed by the

Appellate Tribunal

is restored.

The 1st respondent shall pay to each appellant the costs of his

appeal.

v.s.s. Appeals allowed.