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446 K.A.ABBAS v. THE UNION OF INDIA & ANR. September 24, 1970. :[M. HlDAYATULLAH, C.J., J. M. SHELAT, G. K. MITTER, C. A. VAIDIALINGAMAND A. N. RAY, JJ.] Constitution of India Article 19(1) (") and (2)-Pre-censoT3hip of films-If unconstitutional-CinematographAct, 1952, s. 5-B-Provisions of"--Directions under s. 5-B(2)'-lf. vague and therefore unconstitutional. The petitioo« made -e d<><::umentary film called "A Tale of Four ·Cities" which attemptedto portraythe contrastbetweenthe lifeof the .richand the poorin thefourprincipalcities of thecountry.The film included certain shots of thered light district in Bombay. Allhoughthe petitionerapplied to the Board of FilmCensorsfor a 'U' Certificatefor unrestrictedexhibition of the film, he was granteda certificate onlv for exhibitfonrestricted to adults. On anappealmade to it by the.petitioner, the CentralGovernment i8'ued a directionon July 3, 1969 thata 'U' Certificate may_ be granted providedcertain specified cuts were· made in the film. The petiti.:iner thereafter field the presentpetitionseeking a declaration that the provisionsof Part II oftheCinematographAct, 1952, together with the rulesprescribed by the CentralGovernment on February 6, 1960 in the exercise of· its powers under s. 5-B of theAct were un constitutionaland void;he furtherprayed that the directiondated July 3, 1969should be quashed.The petitionerclaimed thaf his fundamental right of free speech and expression was denied by the orderof theCentral Government andthat he was entitledto a ·'U' Certificatefor the film as of riaht. At thehearingof the petition the CentralGovernmentjndicated it had decided to granta 'U' Certificate to the petitioner's film withoutthe cuts previouslyordered. The l'etitioner then appliedfor amendmentof the petition so as to enable him. to challenge pre-censorship as offensive to freedomof speech and expressionand alternativelythe provisfons of the Actand the Rules, orders and directionsunder the Act as vague, arbitrary andindefinite.The Court allowe_d the amendmentholding the petitioner was ri~t in contendingthat a person who investscapital .in promotingor producmga film must h~ve ·clear guid~nce in adv~nce in the .mat!er of censorship of films even 1f the law of pre-censorship be not v10la!Ive of thefundamental right. It was contended- inter alia on beloalf of _the Petitioner (a)that pl'e censorship .jtself violatedthe right to freedom of speechand e.xpression; and (b) that even if it were a legitimaterestraint on the freedom,it. must be exercisedon very definite principles 'which leave no roomfor arbitrary .action . . HEW : (i). Censorshipof films including prior restraint is justified under the Constitution. It hasbeenalmostuniversallyrecognised that the treatment of mo~ion picturesmust be different from that of other forms of artandexpression. A B c D E E G H A B c D E F G H II:. A. ABBAS v. UNION (Hltfayatullah, C.J.) 447 This arises from the instantappeal of the motionpicture,its versatility, realism (often surrealism). and its coordinatio of the of cinemahouses,and (b) the certlfymgof fil~1is for publrc ex11- bition.The. censors had a wide discretionand no standardsfor theiraction . wereindicated.Boards of Film Censorscame into existencein thethreePresidencytowns and Rangoon.The Bombay BoaFd drew. up someinstitutionsfor Inspectorsof Filmsand it copied the 43 rulesformulatedby T. P."O'Connor in England. Theseare moreor lesscontinuedeven today. We do notwish to tracehere the his~ory of thedevelopment of film censorshipin India.That task has been" admirablyperfor medby theKhoslaCommittee.Legislation in theshapeof amend mentsof theActof 1918and a ProductionCode were the high lights of theprogress. In 19S2 a fresh consolidatingAct was passed and it is Act 37 of 19S2(amendedin 19S9by Act 3 of I 9S9)and that is. the presentstatutoryprovisionon thesubject. Itestablisheda Board of Film Censors andprovidedfor Advi~ory Panels at Regional Centres. Every persondesiring to exhibitany film has to applyfor a certificateand the· Board after examining the film orhavingthe .filmexamineddeals with it by :· (a) sanctioningthe film fo1 unrestrictedpublic e~hi bition· (b) sanctioning the film for publicexhibitionrestrict ed to adults; (c)directingsuch excisionsand modifications as it thinks fit, beforesanctio1,ingthe film for unrestrictedpub licexhibition or forpublicexhibitionrestricted to adults, asthecasemay be; or (d) refusingto sanctionthe film for public exhibition. The film producer is allowedto representhis viewsbeforeaction under (b) (c) and (d) is taken.The sanctionunder (a) is by grant ing a 'U' certificateand under (b) by an'A'certificareand the certificatesare validfor ten years. TheAct thenlays downthe principles for guidanceand for appealsin ss. SB and SC respectively. The>e sectionsmay be read here: "SB. Principlesfor guidancein certifying films. (1)A film shallnot be certifiedfor publicexhibition if, i1_1 theopinionof theauthoritycompetentto grantthe certificate,the film or any partof it is againstthe i11terests of thesecurityof the State, friendlyrelationswith foreign A B c D E F G H A B c D E F G H ·K. A. ABBAS v. UNION (Hkfayatullah, C.J.) 455 States, public order, decencyor morality,or involvesde famationor contemptof court or 1s !Jkely to mcitethe commissionof anyoffence. . (2) Subjectto theprovisionsc.ontained in ~ub-~ection (1), the CentralGovernment may 1~sue such dJrections. as it may think fit setting out the pnnctple~ which shall gu1~e the authoritycompetent to gram cert~!i~~tes .• under th ts Act in sanctioning films for pubhc exl11b1t10n. "SC. Appeals. Anypersonapplyingfor a certificatein respec< of a film who is aggrieved by anyorderof the Board- (a)refusingto granta certificate;or (b) granting only an "A" certificate;or (c) directing the applicantto carryout any exci>ions or modifications; may,withinthirty days fromthe dateof ~uch or~er, ap peal to theCentralGovernment,and the Central Govern mentmay, after such inquiryinto the matter as it con sidersnecessaryand after 杩瘊朠 the appdlantan oppor tunityfor reptesenting his views in thematter, make such orderin relationthereto as it thinks fit." By s. 6, theCentralGovernmenthas reserveda generalrevising powerwhich may be exercisedduring the pendencyof a him before theBoardand evenafterit is certified. under the latterpart of thispowerthe CentralGovernmentmay cancela certificatealready granted or change the 'U' certificateinto an 'A'certificateor may suspendfor 2 monthsthe exhibitionof any film. Theabove is the generalschemeof thelegislationon the sub ject omittingallied mattersin . which we arenotinterestedin this. case. It willbe noticedthat s. 5B(l) really reproduces clause (2) of Art. 19 as it wasbeforeits amendmentby theFirstAmendment. Thisfact has led to anargumentwhich we shall noticepresently. Thesecondsub-sectionof s. 5B enablesthe Central Governm~nt to state· theprinciplesto guidethe censoringauthority, by issuing directions.In furtheranceof thispowerthe CentralGovernment hasgivendirectionsto theBoardof FilmCensors. Tiley are divid ed intoGeneralPrinciplesthree in number,followedby directions fortheirapplicationin whatare called'ruled'.The partdealing withthe applicationof theprinciples is dividedinto four sections and each 8C<'.tion contains matter~ which muy not be the subject of portrayalm films. We may quotethe General Principleshere : "I. No pictureshall be certifiedfor publicexhibition whichwill lowerthe moralstandardsof those who see it. 456 SUPREME COURT REPORTS [1971] 2 S.C.R Hence,the sympathyof ~he audien~c shall not Le thrownon thesideof crime,wrong-doing, evil or sin. 2. Standardsof life, having regard Iv the standards of the countryand the people to whichthe storyrelates, shallnot be so portrayed as to deprave themoralityof theaudience. 3. Theprevailing laws shallnot be so ridiculed as to createsympathyfor violationof such laws." Theapplicationof theGeneralPrinciples is indicatedin thefour sectionsof therulesthat follow so thata uniformstandardmay be applied by the differentregional panels and Boards.The first sec tiondealswith films whichare consideredunsuitable for public exhibition.This section is dividedinto clausesA toF. Clause A dealswith the delineationof crime,B withthat of vice or immora lity,C withthat of relationsbetween sexes, D with tlhe exhibition ofhumanform, E withthe bringinginto contemptof armedforces, orthepublicauthoritiesentrusted with the administrationof law andorderand F withthe protectionof thesusceptibilitiesof foreign nations ·and religiouscommunities,with fomentingsocial unrestor discontentto such an extent as toincitepeopleto crimeand pro motingdisorder,violence,a breachof thelawor disaffectionor resistance to Government. ClausesE andF arefurtherexplainedby stating wh::.c is un suitableand what is objectionablein relationto thetopicsunder thoseclauses. Section IT thenenumeratessubjects which may be objectionable ina contextin whicheither they amountto indecency,immorality, illegalityor incitementto commitabreachof thelaw. Section III thenprovides: "It is not proposedthat certificationof a film should be refusedaltogether, ·or that it should be certified as suitablefor adultaudiencesonly, wherethe deletionof apartor parts,will renderit suitablefor unrestricted pub lic exhibition or forexhibitionrestricted to adults,and such deletion is made,unless the film is such as to de prave the majorityof theaudienceand evenexcisions will not curethe defects." Section IV dealswith the protectionof youngpersonsand en 'joins refusal of a certificatefor unrestrictedpublic exhibitionin respectof a fi.hn depictinga story or containingincidents unsuitable foryoungpersons.Emphasisin thisconnect.ion is laidin parti cular upon- , A 'B c D E F G H A B c D E F G H K. A. ABBAS v. UNION (Hidayatullah, C.J.) 457 (i) anything which may striketerrorin a young per son, e.g., scenesdepictingghosts, brutality,mutilations, torture,cruelty,etc.; (ii) anythingtending to disrupt domesticharmonyor theconfidenceof a childin its parents, e.g. scenes depic ting parentsquarrellingviolently, or one of themstriking theother, or ~ne or bothof thembehavingimmorally; (iii)anythingtending to makea personof tender yearsinsensitiveto crueltyto othersor to animals." In dealingwith crimeunder sectionI clauseA, theglorification or extenuationof crime,depictingthe modus operandi of criminals, enlistingadmirationor sympathyfor smiminals,holding up to contemptthe forces of_ law aga_inst crimeetc. are indicated.as makingthe film unsuitablefor exhibition.In ClauseB s!lni!ar directionsare givenwith regardto viceand immoralacts and vici ous andimmoralpersons.In ClauseC theunsuitabilityarises fromloweringthe sacrednessof theinstitutionof marriageand depictingrape, seductionand criminalassaults on women, immo ril trafficin women,solicitingprostitution or procuration,illicit sexualrelations, excessively passionatelove scenes,indelicate sexualsituationsand scenessuggestiveof immorality. In Clause D!heexhibitionof humanform in nakednessor indecorously or suggestivelydressed and indecorousand sensuouspostures are condemned. In Section II arementionedconfinements,details of surgical operations, ven~real diseasesand loathsomediseases like leprosyand sores,suicide or genocide,female under clothing, indecorousdancing, importunationof women,cruelty to children, tortureof adults,brutal fighting,gruesomemurders or scenes of strangulation,executions, mutilationsand bleeding,cruelty to ani mals, drunkenness or drinkingnot essentiill to thethemeof the story,trafficand use of drugs, cliiss hatred,horrorsof war,horror asa predominantelement, scenes likely to affordinformation to the enen_iy in ti~e of war,exploitationof tragicincidentsof war, blackmail associated withimmorality,intimate biologicalstudies, crippledlimbs or malformations,gross travestiesof administration of justiceand defamationof anylivingperson. . We ha~e covered al_most the entir~ rangeof instructfons. It will be noticed thatthecontrolis boththematicand episodic. If the themeoffendsthe rulesand eitherwith or withoutexcision of the offendingparts, the film remainsstill offensivethe certificate isrefused. If theexcisions-canremove its offensi~eness the film is granteda certificate.Certifiable films are classified ~ccording to ~ir suitabilityfor adults or ·young people.This is the essential workmgof Censorship of motion pictures in ourcountry. . 458 SUPREME COURT REPORTS [1971] 2 S.C.R . The first question is whetherthe films need censorshipat all'? Pre-censorship is butan aspectof censorshipand bearsthe same relationship in qualityto thematerial as censorshipafter the mo tionpicture .has had a run.The onlydifference is one of the stage at whichthe State interposes its regulationsbetween the indi vidualand his freedom.· Beyondthis there is no vitaldifference. Thatcensorship is prevalentall theworldover in someform or otherand pre-censorshipalso playsa partwheremotionpictures ar~ involved,shows the desirabilityof censorship in thisfield.The KhoslaCommitteehas givena descriptiongenerally of the recrula tionstor censorship(including pre-censorship)obtaining in ;ther countriesand Hunning's book dealswith thesetopicsin detail s:p.arately foreachcountry.The methodchanges,the rulesare differentand censorship is morestrict in someplaces than in others,but censorship is universal.Indeed the petitioner· himself pronouncedstrongly in favour of it in a paper entitled'Creative Expression'written by him. This is what he said: "But evenif we believethat a novelistor a painter or amusicianshould be freeto write,paint and co.rri pose musicwithoutthe interferenceof the Statemachi nery, 1 doubt if anyonewill advocatethe same freedom to beextendedto thecommercialexploitationof a powerfulmedium of expressionand entertainmentlike thecinema. One canimaginethe resultsif an 1mbrid leing and ap provingonly suchof them as arein thejudgmentof theboard, moral,educationalor amusingand forbiddingthose that are not. Speakingof th~ criteria stated in generalwords, it was said that generalterms get "precision from the senseand experienceof menand becomecertain and usefulguides in reasoningand con duct". Thefirst noticeof changecame in 1925in Git/ow v. New York('), whenit was said that censorshiphad to passthe scrutiny oftheFirstAmendmentthrough the Fourteenth Amendment be fore speechand expressioncould be. abridgedby Statelaws. To· this, was added i~ 1919the testof 'clearand presentdanger' pro poundedby JusticeHolmesas theonlybasisfor curtailingthe freedom of speech and expression,see Shenck v. U.S.(') and Justice Brandeis in Whitney v. California(') laid down three com ponentsof thetest: (a) Theremust be a clearand present _danger that speechwould produce a substantialevil thatthe State has power to prevent.This is not to saythatit is enough if there is 'fear', theremust be reasonablegrounds to fear thatserious evil wouldresult from the exerciseof speech and expression. ill0915l 236u-:-S.-2io-. - (2) 0925) 268 u. s. 65/, (ll (1919 249 U.S. 47. (4) (192'7) 274 U.S. 357. 460 SUPREME COURT REPORTS [1971) 2 S.C.R. (b) Theremust be a 'present'or ~mmiaent' danger andfor thistheremust be reasonablegrounds to hold thisopinionand thatno reasonableopportunity was available to avertthe consequences;and (c)Thesubstantiveevil to bepreventedmust be 'serious'before there. can be a prohibitionon freedom ofspeechand expressionfor the policepowerof the State couldnot be exercisedto takeawaythe guaran tee to averta relativelytrivial harm to society. In1931in Near v. Minnesota(!) im11lllnity of pressfrom pre censorshipwas deniedbut pre-censorship (as it is termedprevious restraint) was not to be unlimited.A majorpurposeof theFirst Amendment was topreventprior restraint.The protectfon was not unlimited but put on thestatethe burdenof showirgthat the limitationchallengedin the case wasexceptional. In 1941the Courthandeddown in Chap/insky v. New Ham pshire(") the opinionthat freespeechwas not absoluteat alltimes andin allcircumstances,that there existl:d certain "well-defined . andnarrowlylimited classes of speech,the preventionand punish ment of whichhad neverbeen thoughtto raiseany constitutional problem". Thisstateof affairsconiinuedalso in respectof motion pic turesand the regulationof theirpublicexhitition.Real attention was focu~sed oncensorshipafter 19 51.The effectof WorldWar II on Americansociety was the rea.l cause becausepeoples notions ofrightand wrongfrom a socialpoint of viewdrasticallyaltered. Addedto thiswerethe inroadsmade by JusticesDouglasand .Blackin Dennis v. U.S.( 8 ) iin thepreviouslyaccepted propositions whichaccording to them madethe Firs~ Amendment no more than anadmonitionto Congress. In Beauharnois v. Illinois(') Justice Douglasclaimed for thefreedomof speech,a preferredposition becausethe provisionwas in absolute terms·, an opinion whieh has sincenot beensharedby themajorityof theCourt. · In 1951there camethe leadingdecision Burstyn v. Wilson("). This case firmly established that motionpictureswere within t~e protectionof theFirstAmendmentthrough the Fourtee.9,t~. Vlule recognising that therewas no absolutefreedom to exhibit every motionpicture of everykind at all timesand piac~s, and that con stitutbnalprotectioneven againsta priorrestraint was not abso lutelyunlimited,limitation was saidto be onTy in exceptiOnal (I) (1931) 283 U.S. 697 (2) (1941) 315 U. S. 567. (3) (1951) 341 u. s. '494. (4) (19~2) 343 u. s. 250. (5) (1951) 343 U.S. 495. A B c D G H " B K. A. ABBAS v. UNION (Hidayatullah, C.J.) 461" cases, It however laid downthat censorshipon free speech and expression was ordinarilyto becondemnedbut the pre~ise rul~ governingother methodsofexpressionwere not necessanly appli· cable. Theapplicationof the14th Ami:ndment hasnowenabledthe Courtto interfere in allcasesof staterestrictions where censorship failsto followdue process.The result has led to a seriousconflict in the acceptedlegal opinion.The Supreme Court has hadto deal withnumerous cases in whichcensorship was questioned. Thedivergenceof opinionin recentyears has beenvery deep. Censorshipof press,art andliterature is on thevergeof extinction· C exceptin theevershrinkingarea of obscenity.In thefieldof censorshipof the mot.ion picturethere has beena tendencyto applythe 'voidfor vagueness'doctrine evolved under the due pro cess clause.Thus regulationscontaining such words as 'obscene', 'indecent','immoral','prejudicialto thebestinterestsof people', 'tendingto corruptmorals','harmful'were consideredvague cri- Dteria. In Kingsley International Pictures Corpn. v. Regents( 1 ) wherethe film Lady Chatterley'sLover was in question,certain opinionswere expressed.These opinions fonne?d on thebasis.of !he recognillionof theneedsof a permissi.ve SOCiety. · Thus M1shkm v,. New York('} removesthe testof tbe ave~age personby sayingthatifthe material is de~igned fora de'V!ant sexualgroup,the materialcan only be. censored· if taken as a whole,it appeals to the purien~ interestin sexof themembers ofthatgroup.This is known as the selective-audienceobscenity testandevenchildrenare a specialclass. See Ginsberg v. New (I) (1968) 390 U.S. 616. <2l (1964) 378 U. S. 184. (3) (1968) 390 U.S. 629. !4) (1969) 3~4 u. S. 557. (5) (1966) 383 U. S. 502. 464 SUPREME COURT REPORTS [1971] 2 S.C.R, York (1) . On the whole,however,there is in this Ia~t casea returnto theHicklintest in thatobscenity is considered even from isolatedpassages. To summarize.The attitudeof the SupremeCourt- of the UnitedStates is not as uniform as one could wish. It maybe taken as setded thatmotionpicture is considereda formof expression andentitledto protectionof FirstAmendment.The view that it is onlycommercialand businessand, therefore,not entitled to the protection, as was saidin MutualFilm Corpn. (2) is not now accepted.It is also settledthat freedomof speechand expression admitsof extremelynarrow restraintsin casesof clearand present danger,but includedin therestraintsare prior as well as subse quentrestraints.The censorshipshould be basedon precise state" mentof whatmay not be subjectmatter of film-makingand this should allowfull libertyto thegrowthof artandliterature. Age classificationis permissibleand suitabilityfor specialaudiences is no~ todependon whetherthe averageman wouldhave con ·sidered the film suitable.Proceduralsafeguards as laiddown in the Freedman case( 3 ) mustalso be observed.The film can only becensoredif itoffends in·the mannerset outin Roth's case. Thepetitionerput beforeus allthesedictafor ouracceptance andadded to themthe rejectionof censorship, par(icularly prior cen~orship byChiefJusticeWarrenand Justices Black and Dou-. glas.He pointedout thatin England too the censorshipof the theatrehas beenabolishedby theTheatresAct 1968(1968C. 54)andsubmittledthat this is the trendin advancedcountries. He also broughtlo ournoticethe provisionsof theObscene Pub licationsAct, 1959 (7 & 8 Eliz.2 C.66),wherethe testof ob scenity is statedthus : "!. Testof obscenity. (1) For thepurposes of this Actan articleshall be deemedto beobsceneif itseffector (where the· article comprisestwo or moredistinctitems) the effectof any one of itsitems is, if taken as a whole,such as to tend to depraveand corruptpersonswho are likely,having regardto allrelevant circumstances,. t0 read,see or hear themattercontainedof embodiedin it. andthe defenceof publicgood is stated thus : A B c D E ' G "4. Defenceof publicgood. II (0 (!968) 390 U. s. 629. (2) (1915)236 U.S. 230. (3) ('965) 380 us. 51. A B c D E r G H K. A. ABBAS v. UNION (Hidayatullah, C.J.) 465 ( 1 )A personshall not be convictedof anoffence against section two of this Act, :.nd an or~er for ~or feitureshall not be madeunderthe foregomg secl!on .• if it is provedthat publication of the articlein question is justified as being fot thepublicgood on the ground that ir, is in the interests of science,literature,art or learning, or of other objects of generalconcern. (2) It is hereby declaredthat the opinion of experts as to theliterary,artistic, scientificor othermeritsof anarticle may· be admitt1ed in any proceedingsunder thisAct eitherto establishor to negativethe said ground." He contendedthat we must follow the aboveprovisions. We may now considerthe Englishpractice. In Englandthere was little freedom of speech to start with. The Common Law madeno provisionfor it.Thetwo constitutional documents the Petition of Right(1628)and the Bill of Rights (1689)- do notmention it. By the time of QueenElizabethI presseswere controlledthrough licences and althoughthey were granted, '!lo book couldbe issuedwithoutthe sanction of Government.The Star Chamber triedseveral cases of censorship ~d it even con tinuedin the days of Cromwell.· Milton was the firstto attack censorshipin. his Areopagiticaand 'that had profoundeffect on thefreedomof speech. We find quotationsfrom his writings in the opinionsof Chief Justice Warrenand JusticeDongles. Free dom of speech cameto berecognisedby slow 11tafe11 and it was Blackstone who wrote in his Commentaries (Book V p. 1'17)- "The libertyof the Press is indeedessential r.<> the nature of a freeState, but thisconsists in layingno pre vious restraintsupon publications." But censorshipof theatrescontinuedand no theatrecould be licensed ora playperformedwithout the sanctionof theLord Chamberlain. By theTheatresAct 1843the Lord Chamberlain was givenstatutorycontrol over the th~es. He couldforbidthe production of aplayfor thepreservation of goodmanners, de a>rum or thepublicpeace.There was ordinarilyno censorsbip of the press in England.When cinematograph came infio being the Cinematograph Act 1909 was passedto controlcinemas. It has nowbeenamendedby the Cinematograph Actof 1952. Res trictionswere placedon theexhibitionof films to children(s.4) and on the admissionof childrento certaintypes of film. Today censorship of films is throughthe BritishBoard of Film Censors which is anindependentbody not subjectto controlby the State. An elaborateinquiry is already on footto considerwhether state control is needed or not. Censorship of films is runon the lines 466 SUPREME COURT l |
