R BASU Vs. NATIONAL CAPITAL TERRITORY OF DELHI
LAWS(DLH)-2007-6-6
HIGH COURT OF DELHI
Decided on June 04,2007

R. BASU Appellant
VERSUS
NATIONAL CAPTIAL TERRITORY OF DELHI Respondents

JUDGEMENT

A.K.Sikri, J. - (1.) Mr. Arun Aggarwal, a practising Advocate has filed a complaint before the learned Chief Metropolitan Magistrate, under Sections 293,293 & 294 IPC, inter-alia, against Star TV, Star Movies and V Channels as many as 30 (thirty) persons have been arraigned as accused persons in the said complaint. Other persons, apart from aforesaid Star TV channels, are the persons who are incharge of and responsible for the day to day affairs of these channels or the various cable" operators transmitting these channels. This is termed as probono public prosecution by the complainant in which he brought to the notice of the learned Chief Metropolitan Magistrate that on these channels obscene and vulgar TV films were shown and transmitted through various cable operators. According to the complainant, this amounted to obscenity and, therefore, accused persons committed offence under Sections 292/293/294 IPC and under Section 6 read with Section 7 of the Indecent Representation of Women (Prohibition) Act, 1986. On this complaint, learned CMM viewed these films. Thereafter, on 9.4.1997, he ordered police inquiry referring to the police the issue as to 'who are the persons responsible for the exhibition of the films?'. After the police report was received, the complainant was examined on 17.7.1997. Thereafter, arguments were heard and impugned order dated 24.9.97 was passed, prima facie finding that the four films shown on these TV channels as obscene and taking cognizance, accused persons No. 1, 2, 4, 5 & 7 to 30 (i.e., except accused No. 3 & 6) were summoned under Section 292 IPC, Section 4 read with Sections 6 & 7 of the Indecent Representation of Women (Prohibition) Act, 1986 and Section 5A read with Section 7 of the Cinematograph Act, 1952. Challenging this summoning order, these petitions are filed by accused No. 5, 8 & 22.
(2.) Before adverting to the nature of challenge on the basis of which petitioners seek quashing of the proceedings, it would be necessary to scan through the impugned order which is very detailed one running into twenty two pages. In this order after highlighting that TV as a power, which like all other power, can be used for constructive as well as destructive purposes; highlighting importance and significance of television and its impact on the life of public; explaining the concept of freedom of speech as enshrined under Article 19(1)(a) of the Constitution and the reasonable restrictions which can be imposed thereupon, the learned Judge proceeds to comment upon the tendency of showing obscene programmes on TV. There is also a discussion, in the impugned order, about the effect of movies on children. Thereafter, he has commented that it is the right of every nation to maintain a decent society and in view of Article 19(2) of the Constitution of India, various legislations have been enacted by the Parliament which are named in the impugned order including Cinematograph Act, 1952, Indecent Representation of Women (Prohibition) Act, 1986 and Cable Television Network (Regulation) Act, 1995 and Indian Penal Code. The learned Judge, thereafter, examines in detail the issue of censorship in the light of various judgments given by the Supreme Court from time to time, the guidelines issued by the Censor Board and also provisions of some statutes in this behalf. In this perspective, the learned Judge then explains the contents of four movies which were shown on Star TV and finds them as obscene and, therefore, summons the accused persons as mentioned above. Without going into the other aspects of the order, it would be, however, apposite to reproduce the discussion dealing with the law on censorship and the infringing films. These portions of the order are extracted below which are self-speaking: "CENSORSHIP Censorship is permitted mainly on the ground of social interests specified under Art. 19(2) with emphasis on maintenance of values and standards of society. Censorship by prior restraint, therefore, seems justified for the protection of society from the ill effects that a motion picture may produce if unrestricted exhibition is allowed. It is because of this that a special legislation viz. the Act of 1952 sets up a Board of Censors of High Calibre and expertise, provides hearings, appeals and ultimate judicial review, pre-censorship and conditional exhibitions and wealth of other policing strategies. In short a special machinery and processnal justice and a host of wholesome restrictions to protect State and society and woven into the fabric of the Art. If the Board blunders, the Act provides remedies. By amending Act 49 of 1981 the Appellate Jurisdiction against the orders of the Board was transferred from Central Govt. to an independent tribunal whose Chairman is a retired Judge of a High Court or is a person who is qualified to be a Judge of a High Court. The film Censor Board is specially entrusted to screen off the silver screen pictures which offensively invale or deprave public morals through over sex. In the case of Raj Kapoor v. Laxman, AIR 1980 S.C. 605 the Supreme Court held that all freedom is a promise, not a menace and therefore, is subject to specially necessary restraints permitted by the Constitution. Having regard to the instant appeal of the motion picture, its versatility, realism and its co-ordination of the Visual and aural senses, what with the art of the cameraman with trick photography, vistovision and these dimensional representation, the celluloid art has greater capabilities of stirring up emotions and making powerful mental impact so much so that the treatment of this form of art on a different footing with pre-censorship may well be regarded as a valid classification as was held in K.A. Abbas (1971) 2 SCR 446. In S. Rangarajan's case (Supra) the Apex Court observed: "The Censors Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country. The Moral values in particular should act be allowed to be sacrificed in the guise of social change or cultural assimilation. Our country has had the distinction of giving birth to a galaxy of great sages and thinkers. The great thinkers and sages through their life and conduct provided principles for people to follow the path of right conduct. There have been continuous efforts rediscovery and reiteration of those principles. Adi-guru Shankaracharya, Ramanujacharya, Madhwacharya Chaitanya Maha Prabhu, Swami Ram Krishan Paramhansa, Guru Nanak, Santikabir and Mahatma Gandhi have all enlightened our path. If one prefers to go yet ethical code from Tiruvalluver teaching which is a general human morality and Isdom'. Besides, we have the concept of 'Dharam' (righteousness in every respect) a unique contribution of Indian Civilization to humanity of the world. These are the bed rock of our civilization and should not be allowed to be shaken by unethical standards. We do not however mean that the Censors should have an orthodox or censervative outlook. Far from it, they must be responsive to social change and they must go with the current climate. All we wish to state is that the Censors may display more sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of these who see it." In Raj Kapoor's case Justice Iyer expressed in words meaningful a similar thought that the ultimate censorship over the Censors belongs to the people and by indifference, laxity or abetment, pictures which pollute public morals are liberally certified the legislation, meant by Parliament to protect people's good morals, may be sabotaged by statutory enemies within. Section 54 states that if after examining a film or having its examined in the prescribed manner, the Board considers that the film is suitable for un-restricted public exhibition, such a certificate is given which is called 'U' certificate. Section 58 provides principles for guidance in certifying films. It is significant to note that Article 19(2) has been practically read into section 5(B)(1). Section 5(c) confers right of appeal to tribunal against refusal of certificate. Under Section 6 of the Act, the Central Government has revisional power to call for the record of any proceedings in relation to any film at any stage, which it is not made the subject matter of appeal to the Appellate Tribunal. Under Section 8 of the Act, the Rules called the Cinematograph (Certification) Rules 1983 have been framed. 'Under Section 58(2) the Central Government has prescribed certain guidelines for the Censors Board. Guideline (1) relates to the objectives of film censorship. The Board shall 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 and (c) censorship is responsive to social change. Guideline (2) requires the Board to ensure that (i) antisocial activities such as violence is not glorified or justified; (ii) two modus operandi of criminal or other visuals or words likely to incite the commission of any offence are not deposited. (iii) pointless or avoidable scenes of violence, cruelty and horror are not shown; (iv) the sovereignty and integrity of India is not called in question; (v) the security of the State is not jeopardised or endangered; (vi) friendly relations with foreign states are not strained and (vii) public order is not endangered. Guideline (3) also requires the Board to ensure that the film; (i) is judged in its entirety from the point of view of its overall impact and (ii) is examined in the light of contemporary standards of the country and the people to whom the film relates. The most important guidelines which are heard of the matter in so far as television viewing is concerned are guidelines 4 to 6 which are as under: (4) Films that meet the above mentioned criteria but are considered suitable for exhibition to non adults shall be certified for exhibition to adult audience only. (5)(1) while certifying films for unrestricted public exhibition, the Board shall ensure that the film is suitable for family viewing, that is to say the film should be such that all the members of the family including children can view it together. (2) If the Board having regard to the nature, content and theme of the film, is of the opinion that it is necessary to caution the parents/guardian to consider as to whether any child below the age of twelve years may be allowed to see such a film, the film shall be certified for un-restricted public exhibition with an endorsement to that effect. (3) If the Board having regard to the nature, content and theme of the film, is of the opinion that the exhibition of the film should be restricted to members of any professional or any class of persons, the film shall be certified for public exhibition restricted to the specialised audience to the specified by the Board in this behalf. (6) The Board shall scrutinise the titles of the films carefully and ensure that they are not provocative, vulgar, offensive or violative of any of the above mentioned guidelines. T.V. FOR FAMILY VIEWING The Upshot of the entire discussion is that the programmes, serials, films on TV have to be such that are suitable for family viewing that is to say that all the members of the family including children can view it together. In other words only such programmes can be filmed which are fit for a 'U' Certificate. THE REGULATORY SYSTEM The television today is a big commercial industry. There has been a haphazard mushrooming of cable television networks all over the country during the last few years as a result of all the availability of signals of foreign television network via satellites. The programmes available on these satellite channels are predominantly western and totally alien to our culture and way of life. Such programmes play havoc with the moral fabric of the society and need to be regulated. In the 46th year of the Republic of India, the Parliament came out with law to regulate the operation of the cable television networks in the country. The cable operators have certain obligations towards the society in seeing that do not display programme of foreign channels which certain anti national broadcast, Obscene, indecent and vulgar programmes and operate within the framework of the laws of the land. For example the Cinematograph Act 1952, the Copy Right Act, 1952 and the Indecent Representation of the Women (Prohibition) Act, 1986. Section 5 of the Cable Television Network (Regulation) Act, 1995 provides that no person shall transmit or retransmit through a cable service any programme unless such programme is in conformity with the prescribed Programme Code. The central Govt. has made rules known as the Cable Television Network Rules, 1994 which have prescribed a Programme Code under Rule 6. No programme should be carried in the Cable Service which inter-alia offends good taste or decency, contain anything obscene; Denigrates women through the depiction in any manner of the figure of A women, her form or body or any part thereof in such a way as to have the effect of being indecent or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals; denigrates children; Contravenes the provisions of the Cinematograph Act. Mention may also be made of rule 6(3) which permits programmes for adults after 11 p.m. and before 6 a.m. and rule 6(5) that programmes unsuitable for children must not be carried in the cable service at times when the largest number of children are viewing. These sub rules cannot overweigh the sweep of the rule 6(1) or negate the standards laid therein. In fact besides the rule 6(l)9n), language of section 21 of the Cable Television Network (Regulation) Act 1995 specifically provides that, the provisions of the Act shall be in addition to, and not in derogation of interalia the Cinematograph Act, 1952. As already stated in detail herein before, the cinematograph film when exhibited on television can be meant for family viewing for which 'U' certificate is granted by the Board of Censors u/s 5A of the said Act. As regards the Indecent Representation of Women (Prohibition) Act, 1986, the act was enacted because inspite of the law relating to obscenity in this country codified in section 292 to 294 of the IPC, there is a growing body of indecent representation of women or references to women in publications, particularly advertisement etc. which have the effect of denigrating women and are derogatory to women. According to Section 2(c) of the Act the Indecent Representation of Women means the depiction in any manner of the figure of a women, her form or body or any indecent or derogatory to, to denigrating women or is likely to deprave corrupt or injure the public morality or morals. Section 4 of the act provides that no person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form. Thus indecent representation of women even in film is prohibited. Section 6 of the act provides penalty for contravention of Section 4 which extends to two years and with fine. Section 7 of the act provides that where an offence under this Act has been committed by a company, every part on, who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The offences under the act are cognizable and believable in view of the section 8 of the Act. MOVIES ON STAR TV Coming now to the complaint of the activist advocate regarding movies that have been displayed by the Channel 'Star Movie' through Cable Operators arrayed at serial No. 7 to 30 of the complaint. The complainant has placed on record video cassettes Ex. CW1/1 to Ex. CW1/4. These are the video-cassettes of movies titled "Dance of the Damned", "Stripped to Kill", "Big Bad Mama" and "The Jigsaw Murders". These cassettes were displayed to the court. The movie "Stripped to Kill" is a murder mystery. A night club topless dancer is killed. A lady copy also becomes a topless dancer and mixes with the topless night dancers. Another murder takes place by a masked man. Ultimately she is able to solve the murder mystery and kills the murderer by pouring petrol on him. There is no story worth the name. The movie is full of nude, obscene and topless dancers. In a dance in progress, dancer shouts at Bob. You Bastard, you killed, you son of a bitch. The dancer dances stripping her clothes. These are scenes of love making. The language is filthy, vulgar and indecent. For example, a lady to the Manager of the Dance Group says; "Angel's Fucking Dead". During the dance, the dancer shouts at Bob "You bastard, you killed, you son of a bitch". The dance contains expression like: "O Fuck Roxy; says: "I want you to see me naked". The topless dancing to shown number of times. The scenes in the move are repulsive, filthy, indecent, obscene and show indecent representation of women. The other film "Dance of the Damned" is also about a dancer. Her husband is a richman. She gives birth to a son after divorce. A vampire chosed to kill her. However, he starts liking her and changes his plan to kill her and released her. The film contains topless dances various times and also contains love making scene. "The Jigsaw murder" is a movie in which a female model was killed and her body was cut into pieces and each piece was placed at different locations. The detective tried to find the killer. The daughter of detective aspires to become a model. The detective finds her photograph in Mosley's Studio. He wants her daughter to keep away from him. She refuses. One day Musley abducts her and takes her to a lonely place. There he makes her wear swimsuit and takes her photographs. He asks her to be topless. She refuses. She remains in the captivity of Mosley. The detective finds her. There is fight. Finally the daughter shoots down Mosley. The film contains topless dancing and uses filthy language and shows women in an indecent form. "Big Bad Mama" is another movie which was shown on the channel. In this movie also there is no proper story. The rick over night and enjoy life. They do what they see their mother doing. They are caught by the police. The police is bribed. The girls go to a place where men are having party time, drinking, playing cards and watching a women dancing almost naked. They also join the dance on stage and imitate her strip dancing. The mother reaches there and feels upset. She takes out her revolver and runs with them after collecting all the cash on board. They are chased by notice. They check into a hotel. The next day the mother visits bank where armed robbers storm in. She takes the opportunity and collects the cash from the counter and runs away. One robber manages to jump on the car. They become partners. The next day they are at race course. There she falls for another man and he also joins their gang. All of them commit crime together. They abduct daughter of a rich man who pays them ransom but the police follows. Her partners are killed in the firing. She is badly injured and ultimately dies. The film contains various topless dance sequences. A topless lady is also shown pulling down her skirt. They lady is standing nude showing her back. There are totally nude love making sequence. A couple is shown nude in bed. A girl is trying to seduce a man, topless and then nude. There is no theme in these films. These films offensively invade and deprave public moral through over sex. The film directors practise what Oscar Wilde observed - "moderation is a fatal thing. Nothing succeeds like success". These films are not conducive to the values and standards of our society. The over all impact of these films, judged in their entirety, is that these tend to deprave the morality of the audience. These movies are not meant to e watched by public at large including young and adolescents. These are indecent to women and obscene having regard to the existing standards of decency and morality of our society. An average moral citizen, watching these movies would feel embarrassed or disgusted at a naked portrayed of life without the redeeming touch of art or genius or social value. These movies are exploiting sex commercially. Applying the test of obscenity as laid down by the Apex Court in K.A. Abbas (Supra), Raj Kapoor & others (Supra) Bobby Art International etc. v. Om Pal Singh and others, 1996 IV A.D. SC 231 it is clear that these movies prima facie contravene the provisions of Sec. 292 IPC. besides section 4 read with Sec. 6 of the Indecent Representation of Women (Prohibition) Act, 1986. Moreover these movies cannot be exhibited without the necessary certificate from the Censor Board Certificate or films is necessary u/s 5A of the Cinematograph Act, 1952. Section 7 provides the penalty for exhibition or permitting the exhibition in any place by any person of any film other than the film which has been certified by the Board as suitable for un-restricted public exhibition or for public exhibition restricted to adults. The movie channel with the help of cable operators by use of decoder cards have displayed these movies through cable network from their respective places. Every ordinary antenna cannot receive the signal of the Star movie channel displaying these movies. It is with the help of decoder that accused No. 7 to 30 have been receiving scrambled signal and descramble them to the ultimate viewers. An application was even filed before this court by the President All India Aavishkar Dish Antenna Sangh that he has collected near about 100 decoders and also intends to produce the decoder cards of Star Movies. Viewing of these by movies by the public at large, from the Star Movie Channel would not have been possible without the display by these Cable operators. The report on the Video cassettes of these English films was called from the Crime Branch in which it is mentioned that Sh. Ruper Murdoch is the Proprietor of the Star TV Network for the entire World while Sh. R.K. Basu is the official who works for Sh. Ruper Murdoch and is incharge of entire transmission for our country. It is also mentioned in the report that in addition to these persons the cable operators with their details given in the report are responsible for exhibition of the programmes of Star Movies to the public at large. It is also clear from the testimony of the complainant."
(3.) May be, detailed discussion on various aspects, including lecture on morality, was not needed. We are concerned with the contents of the movies shown on T.V. Prima facie view of the learned CMM that the movies are obscene in nature is not questioned before me. That is a matter of evidence, in any case. It seems that petitioners are conscious of this fact. Therefore, they have not challenged the impugned order on this aspect. Obviously, in a case like this, argument had to be of technical nature and that is precisely the course of action adopted by the counsel for the petitioners.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.