Hidayatullah, C.J.@mdashThis petition seeks a declaration against the Union of India and the Chairman, Central Board of Film Censors, that the
provisions of Part II of the Cinematograph Act, 1952 together with the rules prescribed by the Central Government, 6th February 1960, in the
purported exercise of its powers u/s 5-B of the Act are unconstitutional and void. As a consequence the Petitioner asks for a writ of mandamus or
any other appropriate writ, direction or order quashing the direction contained in a letter (Annexure X) dated 3rd July 1969 for deletion of certain
shots from a documentary film entitled ''A Tale of Four Cities'' produced by him for unrestricted public exhibition.
2. The Petitioner is a journalist, play-wright and writer of short stories. He is also a producer and director of cinematograph films. He was a
member of the Enquiry Committee on Film Censorship (1968) and is a member of the Children''s Film Committee. He has produced and/or
directed many films some of which have been well-received here and abroad and even won awards and prizes.
3. The Petitioner produced in 1968 a documentary film in 2 reels (running time 16 minutes) called a Tale of Four Cities. In this film he purported to
contrast the luxurious life of the rich in the four cities of Calcutta, Bombay, Madras and Delhi, with the squalor and poverty of the poor, particularly
those whose hands and labour help to build beautiful cities, factories and other industrial complexes. The film is in black and white and is silent
except for a song which the labourers sing while doing work and some background music and sounds for stage effect. The film, in motion
sequences or still shots, shows contrasting scenes of palatial buildings, hotels and factories-evidence of the prosperity of a few, and shanties, huts
and slums-evidence of poverty of the masses. These scenes alternate and in between are other scenes showing sweating labourers working to build
the former and those showing the squalid private life of these labourers. Some shots mix people riding in lush motor cars with rickshaw and
handcart pullers of Calcutta and Madras. In one scene a fat and prosperous customer is shown riding a rickshaw which a decrepit man pulls,
sweating and panting hard. In a contrasting scene the same rickshaw puller is shown sitting in the rickshaw, pulled by his former customer. This
scene is the optimization of the theme of the film and on view are the statues of the leaders of Indian Freedom Movement looking impotently from
their high pedestals in front of palatial buildings, on the poverty of the masses. On the boulevards the rich drive past in limousines while the poor
pull rickshaw or handcarts or stumble along.
4. There is included also a scanning shot of a very short duration, much blurred by the movement of the photographer''s camera, in which the red
light district of Bombay is shown with the inmates of the brothels waiting at the doors or windows. Some of them wear abbreviated skirts showing
bare legs up to the knees and sometimes a short way above them. This scene was perhaps shot from a moving car because the picture is unsteady
on the screen and under-exposed. Sometimes the inmates, becoming aware of the photographer, quickly withdraw themselves. The whole scene
barely lasts a minute. Then we see one of the inmates shutting a window and afterwards we see the hands of a woman holding some currency
notes and a male hand plucking away most of them leaving only a very few in the hands of the female. The two actors are not shown. The
suggestion in the first scene is that a customer is being entertained behind closed shutters and in the next sequence that the amount received is being
shared between the pimp and the prostitute, the former taking almost the whole of the money. The sequence continues and for the first time the
woman who shut the window again seen. She sits at the dressing table, combs her hair, glances at two love-birds in a cage and looks around the
room as if it were a cage. Then she goes behind the screen and emerges in other clothes and prepares for bed. She sleeps and dreams of her life
before she took the present path. The film then passes on to its previous theme of contrasts mentioned above, often repeating the earlier shots in
juxtaposition as stills. There is nothing else in the film to be noticed either by us or by the public for which it is intended.
5. The Petitioner applied to the Board of Film Censors for a ''U'' certificate for unrestricted exhibition of the film. He received a letter 30th
(December 1968) by which the Regional Officer informed him that the Examining Committee and the Board had provisionally come to the
conclusion that the film was not suitable for unrestricted public exhibition but was suitable for exhibition restricted to adults. He was given a chance
to make representations against the tentative decision within 14 days. Later he was informed that the Revising Committee had reached the same
conclusion. He represented by letter (18th February 1969) explaining the purpose of the film as exposing the exploitation of man (or woman) by
man and the contrast between the very rich few and the very poor masses. He claimed that there was no obscenity in the film. He was informed by
a letter (26th February 1969) that the Board did not see any reason to alter its decision and the Petitioner could appeal within 30 days to the
Central Government. The Petitioner appealed the very next day. On 3rd July 1969, the Central Government decided to give a ''U'' certificate
provided the following cuts were made in the film:
Shorten the scene of women in the red light district, deleting specially the shot showing the closing of the window by the lady, the suggestive shots
of bare knees and the passing of the currency notes."" Dir. 1C (iii)(b), (c), IV."" The mystery of the code numbers at the end was explained by a
letter on 23rd July 1969 to mean this.
1. It is not desirable that a film shall be certified as suitable for public exhibition, either unrestricted or restricted to adults, which.
C(iii) (b) and (c) deals with the relations between the sexes in such a manner as to depict immoral traffic in women and soliciting, prostitution or
procuration.
IV. It is undesirable that a certificate for unrestricted public exhibition shall be granted in respect of a film depicting a story, or containing incidents
unsuitable for young persons.
6. The Petitioner then filed this petition claiming that his fundamental right of free speech and expression was denied by the order of the Central
Government. He claimed a ''U'' certificate for the film as of right.
7. Before the hearing commenced the film was specially screened for us. The lawyers of both sides (including the Attorney General) and the
Petitioner were also present. The case was then set down for hearing. The Solicitor General (who had not viewed the film) appeared at the
hearing. We found it difficult to question him about the film and at our suggestion the Attorney General appeared but stated that Government had
decided to grant a ''U'' certificate to the film without the cuts previously ordered.
8. The Petitioner then asked to be allowed to amend the petition so as to be able to challenge pre-censorship itself as offensive to freedom of
speech and expression and alternatively the provisions of the Act and the rules, orders and directions under the Act, as vague, arbitrary and
indefinite. We allowed the application for amendment for the Petitioner was right in contending that a person who invests his capital in promoting or
producing a film must have clear guidance in advance in the matter of censorship of films even if the law of pre-censorship be not violative of the
fundamental right.
9. When the matter came up for hearing the Petitioner raised four points: (a) that pre-censorship itself cannot be tolerated under the freedom of
speech and expression, (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no
room for arbitrary action, (c) that there must be a reasonable time limit fixed for the decision of the authorities censoring the film, and (d) that the
appeal should lie to a court or to an independent tribunal and not the Central Government.
10. The Solicitor-General conceded (c) and (d) and stated that Government would set on foot legislation to effectuate them at the earliest possible
opportunity. Since the Petitioner felt satisfied with this assurance we did not go into the matter. But we must place on record that the Respondents
exhibited charts showing the time taken in the censorship of films during the last one year or so and we were satisfied that except in very rare cases
the time taken could not be said to be unreasonable. We express our satisfaction that the Central Government will cease to perform curial functions
through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression. Experts sitting as a Tribunal and
deciding matters quasi-judicially inspire more confidence than a Secretary and therefore it is better that the appeal should lie to a court or tribunal.
11. This brings us to the remaining two questions. We take up first for consideration: whether pre-censorship by itself offends the freedom of
speech and expression. Article 19 (1) (a) and (2) of the Constitution contain the guarantee of the right and the restraints that may be put upon that
right by a law to be made by Parliament. They may be read here:
19. Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right-
(a) to freedom of speech and expressions:
x x x x
12. (2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the right conferred by the suit sub-clause in the interests of the sovereignty and integrity
of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence"".
13. The argument is that the freedom is absolute and precensorship is not permissible under the Constitution. It is submitted that precensorship is
inconsistent with the right guaranteed. Now it is clear that some restraint is contemplated by the second clause and in the matter of censorship only
two ways are open to Parliament to impose restrictions. One is to lay down in advance the standards for the observance of film producers and
then to test each film produced against those standards by a preview of the film. The other is to let the producer observe those standards and make
the infraction an offence and punish a producer who does not keep within the standards. The Petitioner claims that the former offends the
guaranteed freedom but reluctantly concedes the latter and relies upon the minority view expressed in the United States Supreme Court from time
to time. The Petitioner reinforces this argument by contending that there are other forms of speech and expression besides the films and none of
them is subject to any prior restraint in the form of precensorship and claims equality of treatment with such other forms. He claims that there is no
justification for a differential treatment. He contends next that even the standards laid down are unconstitutional for many reasons which we shall
state in proper place.
14. This is the first case in which the censorship of films in general and precensorship in particular have been challenged in this Court and before we
say anything about the arguments, it is necessary to set down a few facts relating to censorship of films and how it works in India. The Government
of India appointed a Committee on 28th March 1968 to enquire into the working of the existing procedures for certification of cinematograph films
for public exhibition in India and allied matters, under the Chairmanship of Mr. G. D. Khosla, former Chief Justice of the Punjab High Court. The
report of the Committee has since been published and contains a valuable summary of the law of censorship not only in India but also in foreign
countries. It is hardly helpful to the determination of this case to go into this history but it may be mentioned here that it is the opinion of experts on
the subject that Indian film censorship since our independence has become one of strictest in the world: See Film Censors and the Law, by Neville
March Hunnings p. 227 and Filmrecht: sind Hand-buch of Berthold and von Hertleib (1957) p. 215, quoted by Hunnings. In 1966 Mr. Raj
Bahadur (who succeeded Mrs. Indira Gandhi as Minister for Information and Broadcasting) said that Government would ''continue a liberal
censorship'' and was considering certain expert opinion on the subject. He also suggested to the film industry that it should formulate a code which
would be the best from all standards so that Government may be guided by it in formulating directives to the censors'': See Journal of Film
Industry, 25th February 1966 also quoted by Hunnings at page 18 of his book. This suggestion came to nothing for obvious reasons. Film industry
in India is not even oligopolistic in character and it is useless to expect it to classify films according to their suitability, as is done in the United States
by the motion picture Association of America (MPAA) founded in October 1968. There the film industry is controlled by eight major producers
and private control of filmmaking is possible with the assistance of the National Association of Theatre Owners and Film Importers and
Distributors of America. Having no such organisation for private censorship or even a private body like the British Board of Film Censors in
England, the task must be done by Government if censorship is at all to be imposed. Films began to be exhibited in India at the turn of the last
century and film censorship took birth in 1918 when the Cinematograph Act, 1918 (2 of 1918) was passed. Two matters alone were then dealt
with: (a) the licensing of cinema houses, and (b) the certifying of films for public exhibition. The censors had a wide discretion and no standards for
their action were indicated. Board of Film Censors came into existence in the three Presidency towns and Rangoon. The Bombay Board drew up
some instructions for Inspectors of Films and it copied the 43 rules formulated by T.P.O'' Connor in England. These are more or less continued
even today.
15. We do not wish to trace here the history of the development of film censorship in India. That task has been admirably performed by the
Kholsa Committee. Legislation in the shape of amendmends of the Act of 1918 and a production Code were the highlights of the progress. In
1952 a fresh consolidating Act was passed and it is Act 37 of 1952 (amended in 1959 by Act 3 of 1959) and that is the present statutory
provision on the subject. It established a Board of Film Censors and provided for Advisory Panels at Regional Centres. Every person desiring to
exhibit any film has to apply for a certificate and the Board after examining the film or having the film examined deals with it by
(a) sanctioning the film for unrestricted public exhibition;
(b) sanctioning the film for public exhibition restricted to adults;
(c) directing such excisions and modifications as it thinks fit, before sanctioning the film for unrestricted public exhibition or for public exhibition
restricted to adults, as the case may be; or
(d) refusing to sanction the film for public exhibition.
16. The film producer is allowed to represent his views before action under (b), (c) and (d) is taken. The sanction under (a) is by granting a ''U''
certificate and under (b) by an ''A'' certificate and the certificates are valid for ten years.
17. The Act then lays down the principles for guidance and for appeals in Ss. 5B and 5C respectively. These sections may be read here:
5B. Principles for guidance in certifying
films.
(1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is
against the interests of the security of the State, friendly relations with foreign States , public order, decency or morality or involves defamation or
contempt of court or is likely to incite the commission of any offence.
(2) Subject to the provisions contained in Sub-section (1), the Central Government may issue such directions as it may think fit setting out the
principles which shall guide the authority competent to grant certificate under this Act in sanctioning films for public exhibition.
5C. Appeals.
18. Any person applying for a certificate in respect of a film who is aggrieved by any order of the Board-
(a) refusing to grant a certificate ;or
(b) granting only an ""A"" certificate: or
(c) directing the applicant to carry out any excisions or modifications;
19. may, within thirty days from the date of such order, appeal to the Central Government, and the Central Government may, after such inquiry
into the matter as it considers necessary and after giving the Appellant an opportunity for representing his views in the matter, make such order in
relation thereto as it thinks fit.
20. By S. 6, the Central Government has reserved a general revising power which may be exercised during the pendency of a film before the
Board and even after it is certified. Under the latter part of this power the Central Government may cancel a certificate already granted or change
the ''U'' certificate into an ''A'' certificate or may suspend for 2 months the exhibition of any film.
21. The above is the general scheme of the legislation on the subject omitting allied matters in which we are not interested in this case. It will be
noticed that S. 5B(1) really reproduces Clause (2) of Article 19 as it was before its amendment by the First Amendment. This fact has led to an
argument which we shall notice presently. The second Sub-section of S. 5B enables the Central Government to state the principles to guide the
censoring authority, by using directions. In furtherance of this power the Central Government has given directions to the Board of Film Censors.
They are divided into General principles, three in number, followed by directions for their application in what are called ''ruled''. The part dealing
with the application of the Principles is divided into four sections and each section contains matters which may not be the subject of portrayal in
films. We may quote the General Principles here:
1. No picture shall be certified for public exhibition which will lower the moral standards of those who see it.
Hence, the sympathy of the audience shall not be thrown on the side of crime, wrong-doing, evil or sin.
2. Standards of life, having regard to the standards of the country and the people to which the story relates shall not be so portrayed as to deprave
the morality of the audience.
3. The prevailing laws shall not be so ridiculed as to create sympathy for violation of such laws.
22. The application of the General Principle is indicated in the four sections of the rules that follow so that the uniform standard may be applied by
the different regional panels and Boards. The first section deals with films which are considered unsuitable for public exhibition. This section is
divided into Cl. A to F. Cl. A deals with the delineation of crime, B with that of vice or immorality, C with that of relations between sexes, D with
the exhibition of human form, E with the bringing into contempt of armed forces, or the public authorities entrusted with the administration of law
and order, and F with the protection of the susceptibilities of foreign nations and religious communities, with fomenting social unrest or discontent to
such an extent as to incite people to crime and promoting disorder, violence, a breach of the law or disaffection or resistance to Government.
23. Clauses E and F are further explained by stating what is unsuitable and what is objectionable in relation to the topics under those clauses.
24. Section II then enumerates subjects which may be objectionable in a context in which either they amount to indecency, immorality, illegality or
incitement to commit a breach of the law.
25. Section III then provides:
It is not proposed that certification of a film should be refused altogether, or that it should be certified as suitable for adult audiences only, where
the deletion of a part or parts, will render it suitable for unrestricted public exhibition or for exhibition restricted to adults, and such deletion is
made, unless the film is such as to deprave the majority of the audience and even excisions will not cure the defects.
26. Section IV deals with the protection of young person and enjoins refusal of a certificate for unrestricted public exhibition in respect of a film
depicting a story or containing incidents unsuitable for young persons, Emphasis in this connection is laid in particular upon-
(a) anything which may strike terror in a young person, e.g., scenes depicting ghosts brutality, multilations, torture, cruelty, etc.,
(ii) anything tending to disrupt domestic harmony of the confidence of a child in its parents, e.g. scenes depicting parents quarrelling violently, or
one of them striking the other, or one or both of them behaving immorally;
(iii) anything tending to make a person of tender years insensitive to cruelty to others or to animals.
27. In dealing with crime u/s I clause A. the glorification or extenuation of crime, depicting the modus operandi of criminals, enlisting admiration or
sympathy for criminals holding up to contempt the forces of law against crime, etc., are indicated as making the film unsuitable for exhibition. In
Clause B similar directions are given with regard to vice and immoral acts and vicious and immoral persons. In Clause C, the unsuitability arises
from lowering the sacredness of the institution of marriage and depicting rape, seduction and criminal assualts on women, immoral traffic in women,
soliciting prostitution or procuration, illicit sexual relations, excessively passionate love scenes, indicate sexual situations and scenes suggestive of
immorality. In Clause D the exhibition of human form in nakedness or indecorously or suggestively dressed and indecorous and sensuous postures
are condemned. In Section II are mentioned confinements, details of surgical operations, venereal diseases and loathsome diseases, like leprosy
and sores, suicide or genocide, female under clothing, indecorous dancing, importunation of women, cruelty to children, torture of adults brutal
fighting, gruesome murders or scenes of strangulation, executions, mutilations and bleeding, cruelty to animals, drunkenness or drinking not essential
to the theme of the story, traffic and use of drugs, class hatred, horrors of war, horror as a predominant element, scenes likely to afford information
to the enemy in time of war, exploitation or tragic incidents of war, blackmail associated with immorality, intimate biological studies, crippled limbs
or malformations, gross traversties of administration of justice add defamation of any living person.
28. We have covered almost the entire range of instructions. It will be noticed that the control is both thematic and episodic. If the theme offends
the rules and either with or without excision of the offending parts, the film remains still offensive, the certificate is refused. If the excisions can
remove its offensiveness , the film is granted a certificate. Certifiable films are classified according to their suitability for adults or young people. This
is the essential working of Censorship of motion pictures in our country.
29. The first question in whether the films need censorship at all? Precensorship is but an aspect of censorship and bears the same relationship in
quality to the material as censorship after the motion picture has had a run. The only difference is one of the stages in which the State interposes its
regulations between the individual and his freedom. Beyond this, there is no vital difference. That censorship is prevalent all the world over in some
from or other and pre-censorship also plays apart where motion pictures are involved, shows the desirability of censorship in this field. The Khosla
Committee has given a description generally of the regulations for censorship (including pre-censorship) obtaining in other countries and Hunning''s
book deals with these topics in detail separately for each country. The method changes, the rules are different and censorship is more strict in some
places than in others, but censorship is universal. Indeed the Petitioner himself pronounced strongly in favour of it in a paper entitled ''Creative
Expression'' written by him. This is what he said:
But even if we believe that a novelist or a painter or a musician should be free to write, paint and compose music without the interference of the
State machinery, I doubt if anyone will advocate the same freedom to be extended to the commercial exploitation of a powerful medium of
expression and entertainment like the cinema. One can inagine the results if an unbridled commercial cinema is allowed to cater to the lowest
common denominator of popular taste, specially in a country which, after two centuries of political and cultural domination, is still suffering from a
confusion and debasement of cultural values.
Freedom of expression cannot, and should not, be interpreted as a licence for the cinemagnats to make money by pandering to, and thereby
propagating, shoddy and vulgar taste.
30. Further, it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and
expression. This arises from the instant appeal of the motion picture, its versality, realism (often surrealism), and its coordination of the visual and
aural senses. The art of the cameraman, with trick photography, vistavision and three dimensional representation thrown in, has made the cinema
picture more true to life than even the theatre or indeed any other form of representative Article The motion pictute is able to stir up emotions more
deeply than any other product of Art. Its effec t particularly on children and adolescents is very great since their immaturity makes them more
willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or imitate what they
have seen. Therefore, classification of films into two categories of ''U'' films and ''A'' films is a reasonable classification. It is also for this reason that
motion pictures must be regarded differently from other forms of speech and expression. A person reading a book or other writing or hearing a
speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore, the treatment of the latter on a different
footing is also a valid classification.
31. The Petitioner pressed for acceptance of the minority views expressed from time to time in the Supreme Court of the United States and it is,
therefore, necessary to say a few words about censorship of motion pictures in America and the impact of the First Amendment guaranteeing
freedom of speech and expression in the country. The leading cases in the United States are really very few but they are followed in a very large
number of per curium decisions in which, while concurring with the earlier opinion of the Court, there is sometimes a restatement with a difference.
As early as 1914 in Mutual Film Corpn. v. Industrial Commission of Ohio (1915) 236 U.S. 230, Mr. Justice Kenna, speaking for the full Court,
said that legislative power is not delegated unlawfully, which, when a board of censors is set up to examine and censor, as a condition precedent to
exhibition, motion picture films to be publicly exhibited and displayed, with a view to passing and approving only such of them as are in the
judgment of the board, moral, educational or amusing and forbidding those that are not. Speaking of the criteria stated in general words, it was said
that general terms get ''precision from the sense and experience of men and become certain and useful guides in reasoning and conduct."" The first
notice of change came in 1925 in Girlow v. New York (1925) 268 U.S. 652. When it was said that censorship had to pass the scrutiny of the
First Amendment through the Fourteenth Amendment before speech and expression could be abridged by State laws. To this, was added in 1919
the test of clear and present danger, propounded by Justice Holmes as the only basis for curtailing the freedom of speech and expression, see
Shenck v. U.S. (1919) 249 U.S. 47, and Justice Brandies in Whitney v. California (1927) 274 U.S. 357, laid down three components of the test:
(a) There must be a clear and present danger that speech would produce a substantial evil that the State has power to prevent. This is not to say
that it is enough if there is ''fear'', there must be reasonable grounds to fear that serious evil would result from the exercise of speech and
expression.
(b) There must be a ''present'' or ''imminent'' danger and for this there must be reasonable grounds to hold this opinion and that no reasonable
opportunity was available to avert the consequences, and
(c) The substantive evil to be prevented must be ''serious before'' there can be a prohibition on freedom of speech and expression for the police
power of the State could not be exercised to take away the guarantee to avert a relatively trivial harm to society.
32. In 1931 in Near v. Minnesota (1931) 283 U.S. 697, immunity of press from pre-censorship was denied but pre-censorship (as it is termed
previously restraint) was not to be unlimited. A major purpose of the First Amendment was to prevent prior restraint. The protection was not
unlimited but put on the state the burden of showing that the limitation challenged in the case was exceptional.
33. In 1941 the Court handed down in Chaplinsky v. New Hampshire (1941) 315 U.S. 567 the opinion that free speech was not absolute at all
times and in all circumstances, that there existed certain ""well-definite and narrowly limited classes of speech, the prevention and punishment of
which had never been thought to raise any constitutional problem.
34. This state of affairs continued also in respect of motion pictures and the regulation of their public exhibition. Real attention was focussed on
censorship after 1951. The effect of World War II on American society was the real cause because peoples'' notions of right and wrong from a
social point of view drastically altered. Added to this were the inroads made by Justices Douglas and Black in Dennis v. U.S. (1951) 341 U.S.
494, in the previously accepted propositions which according to them made the First Amendment no more than an admonition to Congress. In
Beauharnais v. Illinois (1952) 343 U.S. 250, Justice Douglas claimed for the freedom of speech, a preferred position because the provision was in
absolute terms, an opinion which has since not been shared by the majority of the Court.
35. In 1951 there came the leading decision Burstyn v. Wilson (1951) 343 U.S. 495. This case firmly established that motion pictures were within
the protection of the First Amendment through the Fourteenth. While recognising that there was no absolute freedom to exhibit every motion
picture of every kind at all times and places, and that constitutional protection even against a prior restraint was not absolutely unlimited, limitation
was said to be only in exceptional cases. It however laid down that censorship on free speech and expression was ordinarily to be condemned but
the precise rules governing other methods of expression were not necessarily applicable.
36. The application of the 14th Amendment has now enabled the Court to interfere in all cases of state restrictions where censorship fails to follow
due process. The result has led to a serious conflict in the accepted legal opinion. The Supreme Court has had to deal with numerous cases in
which censorship was questioned.
37. The divergence of option in recent years has been very deep. Censorship of press, art and literature is on the verge of extinction except in the
ever shrinking area of obscenity. In the field of censorship of the motion picture there has been a tendency to apply the ''void for vagueness''
doctrine evolved under the due process clause. Thus regulations containing such words as ''obscene'', ''indecent'', ''immoral'', ''prejudicial to the
best interests of people''s ''tending to corrupt morals'' ''harmful'' were considered vague criteria. In Kingsley v. International Pictures Corpn. v.
Regents (1950) 360 U.S. 684, where the film Lady Chatterley''s Lover was in question, certain opinions were expressed. These opinions formed
the basis of the arguments on behalf of the Petitioner. Justice Black considered that the court was the worst of Board Censors because they
possessed no special expertise. Justice Frankfurter was of the opinion that legislation must not be so vague, the language so loose, as to leave to
those who have to apply it too wide a discretion for sweeping within its condemnation what was permissible expression as well as what society
might permissibly prohibit, always remembering that the widest scope for freedom was to be given to the adventurous and imaginative exercise of
human spirit......"" Justice Douglas considered prior restraint as unconstitutional. According to him if a movie violated a valid law, the exhibitor could
be prosecuted.
38. The only test that seemed to prevail was that of obscenity as propounded in Roth v. United States (1957) 354 U.S. 476. In that three tests
were laid down:
(a) that the dominent theme taken as a whole appeals to prurient interests according to the contemporary standards of the average man:
(b) that the motion picture is not saved by any redeeming social value:
and (c) that it is patently offensive because it is opposed to contemporary standards.
The Hicklin test in Regina v. Hicklin L.R. (1868)3 Q.B. 360, was not accepted.
Side by side procedural safeguards were also considered. The leading case is Freedman v. Maryland (1965) 380 U.S. 51, where the court listed
the following requirements for a valid film statute:
1. The burden of proving that the film is obscene rests on the censor.
2. Final restraint (denial of licence) may only occur after judicial determination of the obscenity of the material.
3. The censor will either issue the licence or go into court himself for a restraining order.
4. There must be only a ''brief period'' between the censor''s first consideration of film and final judicial determination. (As summarized by Martin
Shapiro Freedom of Speech: The Supreme Court and Judicial Review).
39. These were further strengthened recently in Teitel Film Corpn v. Cusak (1968) 390 U.S. 139, (a per curiam decision) by saying that a non-
criminal process which required the prior submission of a film to a censor avoided constitutional infirmity only if censorship took place under
procedural safeguards. The censorship system should, therefore, have a time-limit. The censor must either pass the film or go to court to restrain
the showing of the film and the court also must give a prompt decision. A delay of 50-57 days was considered too much. The statute in question
there had meticulously laid down the time for each stage of examination but had not fixed any time limit for prompt judicial determination and this
proved fatal.
40. The fight against censorship was finally lost in the Times Film Corporation v. Chicago (1961) 365 U.S. 43, but only by the slender majority of
one Chief Justice Warren and Justices Black Douglas and Brennan dissented.
41. The views of these judges were pressed upon us. Chief Justice Warren thought that there ought to be first an exhibition of an allegedly
''obscene film'' because Government could not forbid the exhibition of a film in advance. Thus prior restraint was said to be impermissible. Justice
Douglas went further and said that censorship of movies was unconstitutional. Justice Clark, on the other hand, speaking for the majority, said:
... It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid.
x x x
It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a
showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances.
42. The argument that exhibition of moving pictures ought in the first instance to be free and only a criminal prosecution should be the mode of
restraint when found offensive was rejected. The precensorship involved was held to be no ground for striking down a law of censorship The
minority was of the opinion that a person producing a film must know what he was to do or not to do. For, if he were not sure he might avoid even
the permissible.
43. In Interstate Circuit Inc. v. Dallas (1968) 399 U.S. 676 certain expressions were considered vague including ''crime delinquency'' ''sexual
promiscuity'' ''not suitable for young persons.'' According to the court the statute must state narrowly drawn, reasonably definite, standards for the
Board to follow. Justice Harlan, however, observed that the courts had not found any more precise expressions and more could not be demanded
from the legislature than could be said by the Court. However precision of regulation was to be the touchstone of censorship and while admitting
that censorship was admissible, it was said that too wide a discretion should not be left to the censors.
44. Meanwhile in Jacobellis v. Ohio (1964) 378 U.S. 184 it was held that laws could legitimately aim specifically at preventing distribution of
objectionable material to children and thus it approved of the system of age-classification. The Interstate Circuit Inc. v. Dallas (supra) and Ginsberg
v. New York (1968) 393 U.S. 629 set the seal on validity of age-classification as constitutionally valid.
45. There are two cases which seem to lie outside the main-stream. Recently in Stanley v. Georgia (1969) 394 U.S. 557 the Court seems to have
gone back on the Moth case (supra) and held that the right to receive information and ideas, regardless of their social worth, is also fundamental to
society. Another exception can only be understood on the basis of the recognition of the needs of a permissive society. Thus Mishkin v. New York
(1966) 383 U.S. 582 removes the test of the average person by saying that if the material is designed for a deviant sexual group, the material can
only be censored if taken as a whole, it appeals to the prurient interest in sex of the members of that group. This is known as the selective-audience
obscenity test and even children are a special class. See Ginsberg v. New York (supra). On the whole, however, there is in this last case a return
to the Hicklin test in that obscenity is considered even from isolated passages.
46. To summarize. The attitude of the Supreme Court of the United States is not as uniform as one could wish. It may be taken as settled that
motion picture is considered a form of expression and entitled to protection of First Amendment. The view that it is only commercial and business
and, therefore, not entitled to the protection as was said in Mutual Film Corpn. (supra) is not now accepted. It is settled that freedom of speech
and expression admits of extremely narrow restraints in cases of clear and present danger, but included in the restraints are prior as well as
subsequent restraints. The censorship should be based on precise statement of what may not be subject matter of film-making and this should
allow full liberty to the growth of art and literature. Age-classification is permissible and suitability for special audiences in not to depend on
whether the average man would have considered the film suitable. Procedural safeguards as laid down in the Freedom case (supra) must also be
observed. The film can only be censored if it offends in the manner set out in Roth''s case.
47. The Petitioner put before us all these dicta for our acceptance and added to them the rejection of censorship particularly prior censorship by
Chief Justice Warren and Justices Black and Douglas. He pointed out that in England too the censorship of the theatre has been abolished by the
Theatres Act, 1968 (1968 C. 54) and submitted that is the trend in advanced countries. He also brought to our notice the provisions of the
Obscene Publications Act, 1959 (7 & 8 Eliz. 2 C. 66), where the test of obscenity is stated thus:
1. Test of obscenity.
(1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items)
the effect of any one of its items, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant
circum stances, to read, see or hear the matter contained or embodied in it.
x x x
and the defence of public good is stated thus: ""4. Defence of public good.
(1) A person shall not be convicted of an offence against section two of this Act, and an order for forfeiture shall not be made under the foregoing
section, if it proved that publication of the article in question is justified as being for the public good on the ground that it is in the interest of science,
literature, art or learning, or of other objects of general concern.
(2) It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any
proceedings under this Act either to establish or to negative the said ground.
48. He contended that we must follow the above provisions.
49. We may now consider the English practice. In England there was little freedom of speech to start with. The Common Law made no provision
for it. The two constitutional documents-the Petition of Right (1628) and the Bill of Rights (1689)-do not mention it. By the time of Queen
Elizabeth I, presses were controlled through licences and although they were granted, no book could be issued without the sanction of
Government. The Star Chamber tried several cases of censorship and it even continued in the days of Cromwell. Milton was the first to attack
censorship in his Areopagitica and that had profound effect on the freedom of speech. We find quotations from his writings in the opinions of Chief
Justice Warren and Justice Douglas. Freedom of speech came to be recognised by slow stages and it was Black-stone who wrote in his
Commentaries (Book IV p. 1517)-
The liberty of the Press is indeed essential to the nature of a free State, but this consists in laying no previous restraints upon publications.
50. But censorship of theatres continue and no theatre could be licensed or a play performed without the sanction of the Lord Chamberlain. By the
Theatres Act 1843 the Lord Chamberlain was given statutory control over the theatres. He could forbid the production of a play for the
preservation of good manners, decorum or the public peace. There was ordinarily no censorship of the press in England. When cinematograph
came into being the Cinematograph Act, 1909 was passed to control cinemas. It has now been amended by the Cinematograph Act of 1952.
Restrictions were placed on the exhibition of films to children (S. 4) and on the admission of children to certain types of film. Today censorship of
films is through the British Board of Film Censors which is an independent body not subject to control by the State. An elaborate inquiry is already
on foot to consider whether state control is needed or not. Censorship of films is run on the lines set by T. P. O''Cornor in 1918. These directions,
as we said earlier, have had a great influence upon our laws and our directions issued by the Central Government, follow closely the 43 points of
T. P. O''Connor. It is wrong to imagine that there is no censorship in England. The Khosla Committee (P. 32) has given examples of the cuts
ordered and also a list of films which were found unsuitable. The Board has never worked to a Code although the directions are followed. By
1950 three general principles were evolved. They are:
1. Was the story, incident or dialogue likely to impair the moral standards of the public by extenuating vice or crime or depreciating moral
standards ?
2. Was it likely to give offence to reasonably minded cinema audiences ?
3. What effect would it have on the minds of children ?
51. We have disgressed into the practice of the United States and the United Kingdom because analogies from these two countries were mainly
relied upon by the Petitioner and they serve as a very appropriate back-ground from which to begin discussion on the question of censorship and
the extent to which it may be carried.
52. To begin with our fundamental law allows freedom of speech and expression to be restricted as Clause (2) itself shows. It was observed in
Ranjit D. Udeshi Vs. State of Maharashtra,
Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional
protection given to free speech or expression because the article dealing with the right itself excludes it. That cherished right on which our
democracy rests is meant for the expression of free opinions to change political or social conditions, or for the advancement of human knowledge.
This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of
public decency and morality. S. 292, Indian Penal Code, manifestly embodies such a restriction because the law against obscenity, of course,
correctly understood and applied, seeks no more than to promote public decency and morality.
53. We adhere to this statement and indeed it is applicable to the other spheres where control is tolerated under our fundamental law. The
argument that S. 5-B of the Cinematograph Act does not reproduce the full effect of the second clause of Article 19 need not detain us. It appears
that the draftsman used a copy of the Constitution as it was before the First Amendment and fell into the error of copying the obsolete clause. That,
however, does not make any difference. The Constitution has to be read first and the Section next. The latter can neither take away nor add to
what the Constitution has said on the subject. The word ''reasonable'' is not to be found in S. 5-B but it cannot mean that the restrictions can be
unreasonable. Not only the sense of the matter, but the existence of the constitutional provision in pari materia must have due share and reading the
provisions of the Constitution we can approach the problem without having to adopt a too liberal construction of S. 5-B.
54. It, therefore, follows that the American and the British precedents cannot be decisive and certainly not the minority view expressed by some of
the judges of the Supreme Court of the former. The American Constitution stated the guarantee in absolute terms without any qualification. The
Judges try to give full effect to the guarantee by every argument they can validly use. But the strongest proponent of the freedom (Justice Douglas)
himself recognised in the Kingsley case that there must be a vital difference in approach. This is what he said:
If we had a provision in our Constitution for ''reasonable'' regulation of the press such as India has included in hers, there would be room for
argument that censorship in the interests of morality would be permissible.
55. In spite of the absence of such a provision Judges in America have tried to read the words ''reasonable restrictions'' into the First Amendment
and thus to make the rights it grants subject to reasonable regulation. The American cases in their majority opinions, therefore, clearly support a
case of censorship.
56. It would appear from this that censorship of films, their classification according to age groups and their suitability for unrestricted exhibition with
or without excisions is regarded as a valid exercise of power in the interests of public morality, decency, etc. This is not to be construed as
necessarily offending the freedom of speech and expression. This has, however, happened in the United States and therefore decisions, as Justice
Douglas said in his Tagore Law Lectures (1939), have the flavour of due process rather than what was conceived as the purpose of the first
Amendment. This is because social interest of the people override individual freedom. Whether we regard the state as the paren patriae or as
guardian and promoter of general welfare, we have to concede, that false restraints on liberty may be justified by their absolute necessity and clear
purpose. Social interests take in not only the interests of the community but also individual interests which cannot be ignored. A balance has
therefore to be struck between the rival claims by reconciling them. The larger interests of the community require the formulation of policies and
regulations to combat dishonesty, corruption, gambling, vice and other things of immoral tendency and things which affect the security of the State
and the preservation of public order and tranquillity. As Abrens said the question calls for a good philosophical compass and strict logical methods.
57. With this preliminary discussion we say that censorship in India (and precensorship is not different in quality) has full justification in the field of
the exhibition of cinema films. We need not generalize about other forms of speech and expression here for each such fundamental right has a
different content and importance. The censorship imposed on the making and exhibition of films is in the interests of society. If the regulations
venture into something which goes beyond this legitimate opening to restrictions, they can be questioned on the ground that a legitimate power is
being abused. We hold, therefore, that censorship of films including prior restraint is justified under our Constitution.
58. This brings us to the next question: How far can these restrictions go? and how are they to be imposed? This leads to an examination of the
provisions contained in S. 5-B(2). That provision authorises the Central Government to issue such directions as it may think fit setting out the
principles which shall guide the authority competent to grant certificates under the Act in sanctioning films for public exhibition.
59. . The first question raised before us is that the legislature has not indicated any guidance to the Central Government. We do not think that this is
a fair reading of the section as a whole. The first Sub-section states the principles and read with the second clause of the nineteenth article, it is
quite clearly indicated that the topics of films or their content should not offend certain matters there set down. The Central Government in dealing
with the problem of censorship will have to bear in mind those principles and they will be the philosophical compass and the logical methods of
Abrens. Of course, Parliament can adopt the directions and put them in schedule to the Act (and that may still be done), it cannot be said that there
is any delegation of legislative function. If Parliament made a law giving power to close certain roads for certain vehicular traffic at stated times to
be determined by the Executive authorities and they made regulations in the exercise of that power, it cannot for a moment be argued that this is
insufficient to take away the right of locomotion Of course, everything may be done by legislation, but it is not necessary to do so if the policy
underlying regulations is clearly indicated. The Central Government''s regulations are there for consideration in the light of the guaranteed freedom
and if they offend substantially against that freedom, they may be struck down. But, as they stand they cannot be challenged on the ground that any
recondite theory of law-making or a critical approach to the separation of powers is infringed. We are accordingly of the opinion that S. 5-B(2)
cannot be challenged on this ground.
60. This brings us to the manner of the exercise of control and restriction by the directions. Here the argument is that most of the regulations are
vague and further that they leave no scope for the exercise of creative genius in the field of Article This poses the first question before us whether
the ''void for vagueness'' doctrine is applicable. Reliance in this connection is placed on Municipal Committee Amritsar and Anr. v. The State of
Rajasthan AIR 1960 S.C. 1100. In that case a Division Bench of this Court lays down that an Indian Act cannot be declared invalid on the ground
that it violates the due process clause or that it is vague. Shah, J. speaking for the Division Beach, observes:
......the rule that an Act of a competent legislature may be struck down'' by the courts on the ground of vagueness is alien to our constitutional
system. The legislature of the State of Punjab was competent to enact legislation in respect of ''fairs''-vide Entry 28 of List II of the 7th Schedule to
the Constitution. A law may be declared invalid by the superior courts in India if the Legislature has no power to enact the law or, that the law
violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any constitutional provisions, but not on the
ground that it is vague.
61. The learned Judge refers to the practice of the Supreme Court of the United States in Claude C. Caually v. General Construction Co. (1926)
70 L. Ed. 332 where it was observed:
A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application violates the first essential of due process of law.
62. The learned Judge observes in relation to this as follows:
But the rule enunciated by the American Court has no application under our constitutional set up. This rule is regarded as an essential of the ''due
process clause'' incorporated in the American Constitution by the 5th and 14th Amendments. The courts in India have no authority to declare a
statute invalid on the ground that it violates ''the due process of law''. Under our Constitution, the test of due process of law cannot be applied to
the statutes enacted by the Parliament or the State Legislature.
63. Relying on the observations of Kania, C.J. in A.K. Gopalan Vs. The State of Madras, to the effect that a law cannot be declared void because
it is opposed to the spirit supposed to pervade the Constitution but not expressed in words, the conclusion above set out is reiterated. The learned
Judge, however, adds that the words ""cattle fair"" in fact there considered are sufficiently clear and there is no vagueness.
64. These observations which are clearly obiter are apt to be too generally applied and need to be explained. While it is true that the principles
evolved by the Supreme Court of the United States of America in the application of the Fourteenth Amendment were eschewed in our Constitution
and instead the limits of restrictions on each fundamental right were indicated in the clauses that follow the first clause of the nineteenth article, it
cannot be said as an absolute principle that no law will be considered bad for sheer vagueness. There is ample authority for the proposition that a
law affecting fundamental rights may be so considered. A very pertinent example is to be found in The State of Madhya Pradesh and Another Vs.
Baldeo Prasad, where the Central Provinces and Berar Goondas Act, 1946 was declared void for uncertainty. The condition for the application of
Sections 4 and 4-A was that the person sought to be proceeded against must be a goonda but the definition of goonda in the Act indicated no tests
for deciding which person fell within the definition. The provisions were therefore held to be uncertain and vague.
65. The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the
construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction
that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where
however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes
away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of
the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the
Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in
the clearest of cases.
66. Judging the directions from this angle, we find that there are general principles regarding the films as a whole and specific instances of what may
be considered as offending the public interests as disclosed in the clause that follows the enunciation of the freedoms in Article 19(1)(a). The
general principles which are stated in the directions seek to do more than restate the permissible restrictions as stated in Cl.(2) of Art, 19 and S. 5-
B(1) of the Act. They cannot be said to be vague at all. Similarly, the principles in S. IV of the directions in relation to children and young persons
are quite specific and also salutary and no exception can be taken. It is only the instances which are given in Section I, Clause A to D which need
to be considered. Read individually they give ample direction as to what may not be included. It is argued on the basis of some American cases
already noticed by us that these expressions are vague. We do not agree. The words used are within the common understanding of the average
man. For example the word ''rape'' indicates what the word is, ordinarily, understood to mean. It is hardly to be expected or necessary that the
definition of rape in the Penal Code must be set down to further expose the meaning. The same may be said about almost all the terms used in the
directions and discussed before us. We do not propose to deal with each topic for that is really a profitless venture. Fundamental rights are to be
judged in a broad way. It is not a question of sementics but of the substance of the matter. It is significant that Justice Douglas who is in favour of a
very liberal and absolute application of the First Amendment in America is of the view that ''sexual promiscuity'' was not vague, while those in
favour of prior restraints thought that it was. We have referred earlier to the case. We are quite clear that expressions like ''seduction'', immoral
traffic in woman'', ''soliciting, prostitution or procuration'', ''indelicate sexual situation'' and scenes suggestive of immorality'', ''traffic and use of
drugs'' ''class hatred'', ''blackmail associated with immorality'' are within the understanding of the average man and more so of persons who are
likely to be the panel for purpose of censorship. Any more definiteness is not only not expected but is not possible. Indeed, if we were required to
draw up a list we would also follow the same general pattern.
67. But what appears to us to be the real flaw in the scheme of the directions is a total absence of any direction which would tend to preserve art
and promote it. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears to be completely forgotten.
Artistic as well as inartistic presentations are treated alike and also what may be socially good and useful and what may not. In Ranjit D. Udesi''s
case this Court laid down certain principles on which the obscenity of a book was to be considered with a view to deciding whether the book
should be allowed to circulate or withdrawn. Those principles apply mutatis mutandis to films and also other areas besides obscenity. The Khosla
Committee also adopted them and recommended them for the guidance of the film censors. We may reproduce them here as summarized by the
Khosla Committee:
The Supreme Court laid down the following principles which must be carefully studied and applied by our censors when they have to deal with a
film said to be objectionable on the ground of indecency or immorality:
(1) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
(2) Comparison of one book with another to find the extent of permissible action is not necessary.
(3) The delicate task of deciding what is artistic and what is obscene has to be performed by courts and in the last resort, by the Supreme Court
and so, oral evidence of men of literature or others on the question of obscenity is not relevant.
(4) An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter be considered by
itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are
open to influence of this sort and into whose hands the book is likely to fall.
(5) The interests of contemporary society and particularly the influence of the book etc., on it must not be over-looked.
(6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and
insignificant that it can have no effect and can be overlooked.
(7) Treating with sex in a manner offensive to public decency or morality which are the words of our Fundamental Law judged by our national
standards and considered likely to ponder to lascivious, prurient or sexually precocious minds must determine the result.
(8) When there is propogation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour
of free speech and expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to
be considered obscene, but the same illustrations and photographs collected in a book form without the medical text would certainly be considered
to be obscene.
(9) Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech or expression. Obscenity
is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to
modesty and decency.
(10) Knowledge is not a part of the guilty act. The offender''s knowledge of the obscenity of the book is not required under the law and it is a case
of strict liability.
68. Application of these principles does not seek to whittle down the fundamental right of free speech and expression beyond the limits permissible
under our Constitution, for, however, high or cherished that right it does not go to pervert or harm society and the line has to be drawn
somewhere. As was observed in the same case:
......... The test which we evolve must obviously be of a general character but it must admit of a just application from case to case by indicating a
line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not..........
69. A similar line has to be drawn in the case of every topic in films considered unsuitable for public exhibition or specially to children. 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 offending character. The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of
commands established 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 framed that we are not reduced
to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.
The standards that we set for our 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 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, a Frenchman sees a woman''s legs in everything
it cannot be helped. In our scheme of things ideas having redeeming social or artistic value 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 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 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 ineest 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 letter 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 Cresreid (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 Nadirsha may be
permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made
golgoths 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 Candied would be meaningless without Cunegonde''s episode with the soldier and the story of
Lucree could never be depicted on the screen.
70. Therefore, it is not the elements of rape, leprosy, sexual immorality which 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 things 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 documentary on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra, but a documentary from
them as a practical sexual guide would be abhorrent.
71. We have said all this to show that the items mentioned in the directions are 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, nor has the Central Government filled in the gap.
Neither has separated the artistic and the sociably valuable from that which is deliberately indecent, obscene, horrifying or corrupting. They have
not indicated 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 moral. They have attempted to bring down the public motion picture to
censorship of books. We think that those guides work as well here. Although the level of home movies.
72. It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi''s case certain considerations for the guidance of censorship
of books. We think that those guides work as well here. Although we are not inclined to hold that the directions are defective in so far as they go,
we are of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included. Whether this is done
by Parliament or by the Central Government it hardly matters. The whole of the law and the regulations under it will have always to be considered
and if the further tests laid down there are followed, the system of censorship with the procedural safeguards accepted by the Solicitor-General will
make censorship accord with our fundamental law.
73. We allow this petition as its purpose is more than served by the assurance of the Solicitor-General and what we have said, but in the
circumstances we make no order about costs.
