Hiralal M. Shah vs The Central Board Of Film ...

on 28 February, 1986

Bombay High Court

Hiralal M. Shah vs The Central Board Of Film ... on 28 February, 1986
Bench: Pendse
JUDGMENT

1. By this petition filed under Art. 226 of the Constitution, the petitioner is challenging the legality of
the order dt. Nov. 25, 1985 passed by the Joint Secretary tot he Governnment of India in exercise of
powers under Section 6 of the Cinematograph Act, 1952 (hereinafter referred to as the ACt),
reversing the rder dt April 11, 1985 passed by the Film Certification Appellate Tribunal under S. 5C
of the Act and directing that the Marathi feature film " Maficha Sakshidar" (Approver) shall not be
certified for public exhibition.

2. The broad theme of the film is based on the chain of murders that took place in the ciryt of Pune
and which created quite a sensation and ultimatelky led to the criminal trial came tot be known as '
Joshi abhyankar Murdur trial and ended in conciction of the accused and imposition of death
senteces. The petitioenr is a producer of the films and the film in question after cmpletion was
submitted for certificate tothe Central Board of Film Certification, Bombay on Sept, 19, 1983, The
film opens with a court scne and the approver making his statement and then with a flash back the
se5ris of murders committed by the accused are pisctred. The offenders are students studying in
local college and initially the memebrs of the gang indulged in stealing scooter and motor-bikes
parked on the streets. Subsequently the leadler of the gang, one Rahavendra, motor and idea
whereby demand of large sum of moneny is made tothe father of one of the team mates on the
pretex that his son has been kidhapped and shall be relesed only on payment of the amount. The
gang then decides to murder the team mate who aw as allegeed to have beebn kidnapped and after
murder to the body is put is a drum which is dumped in tank situated in the partk. The members of
the gang thendecide to commit robbery in the bungalow of one Hise and duirng the commission of
the crime murder three memebrs of the family. The gang then proceeds to the bungalaoe fo an old
Sanskrit Scholar and while robbing his house commits murder of five family memebrs . The gang
thereafter proceeods to another bungalow and tries to rob the occupants but fails in their endeavour
and had to flee due to daring act of a courageous had to flee due to yuound lad. By this time there is
quite as stir in the town and the police and the Government officers wer taken to task by the people.
One of the team mates therafeter advise the gang leadert stop the commission of any further crime
and that angers the leader and that team member is also murdered and that the dead body is thrown
in the river. The murders are committed by means of strangulation by a rope nand the offenders
take precaution of weraring gloves so as not to leave behind any finger markds and also used to
spray aromatic liquid at the scene of offence with a view to baffle the police dogs, who were likely to
trace the offenders. At this juncture one of the offernders decides to leave the gang and is thereupon
thretned by theother members with dire consequences. The offender with thereupon rushes to the
police station and makes a clean breast for the offences committed by him in the company of the
other accused. The police machinery then immediately takes steps to round up the accuesed and the
four accused are tried in the court of Session and the approver gives evidence. The trilal results into
convistion of four accused are a carried in the Court of Session and the approver gives evidence. The
trial results into conviction of four accused and imposition of sentence of death. While the four
accused are carried in the police van tothe jail, the gang leader is removed tohe hospital and decides

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 Hiralal M. Shah vs The Central Board Of Film ... on 28 February, 1986

to punish her son who has cuased great angusih to several familites, and cuts the life giving tubes
attached to the leader resulting three acused are hanged in accordance with law.

3. The film after being submitted for certification by the petiioner a was viewed by the examining
committee conssisting of five memebr and on Sept. 20, 1983 decided to grant 'A' Certificate without
any cuts. However, the Chairman, Central Board of film Certification on his own referred the film to
the revising committee consisting of nine members. The Revising Committee viewed the film on
Octtober 14, 1983 and six members felt that 'A' Certificate should be granted , but differed amongst
themselves about the cuts top be effected; while the remaining three members declined to issue
certificate for the release of the film. Thereupon by the Chairman and this Committee unaimously
communicated refusal of certificate. The petitioner was informed of the proviison decision of refusal
of certificate and wass called upon to show cuse why that decision should not be confiemdd. After
considering the reprensetation made by the petitioner, the Committee confirmed its earlier decision.
The petitioner then prepared a revised version after deleting about 227 feet film from the original
version and resubmitted it for certificatrion. The Examining Committee recommended refusal of
certificate and so also the Revising Commttieie. The petitioner again made representation, but
without any favourable response. Ultimately, the petitioner was informed on December 12, 1983
that the certificate cannot be granted.

4. The petitioner thereupon preferred an appeal before the Film Certification Appellate Tribunal and
the Tribunal after viewing the film suggest 11 cuts which the petitioner carried out and thereafter the
Appellate Tribunal alklwed the apeal and directied the Censor Board to issue 'A' certificates. The
petitioner thereupon approached the Board for grant of certifcate but was informed that the matter
has been referred to the Government and the decision of the Government is awaited.

5. On July 11, 1985 the respondent 2 joint Secretary in the Minister of Information and Braodcasitng
served a notiice on the petitioner informing that the Appellate Tribunal did not fully appreciate the
implicaiton of the certification of the film and the Central Goernmetn has provisioanly come to the
conclusion that the films hsould not be granted certificate for public exhibition. The petitioern was
called upon to make representation before the final decision is taken. The petitioner made
representation and therafter the impugned order was passed by respondetn 2 holding that the film
offends the guidlines relating to violence, cruelty, modus opranedi of criminals and depravity as
mentioned in para 2(I) , (ii) , (iii) and (iv) of the guidelines issed by the Central Government and
thus contrvenes the provisions relating to decency and incitement of the to commission of an
offence within the meaning of s. 5-B(1) of the Act. On the strenght of this findign the certificate was
refused and that order is under challenged in this petition filed in this Court on Jan., 8, 1986.

6. Shri Shah, learned counsel appearing on behalf of the petioenr, submitted that the order passed
by respondent 2 suffers form serious inficrmly and is required to be quashed because respondent 2
has exceeded his jurisdiction confered under S. 6 of the Act and as treated the matter as an appeal
over the order the Appellate Tribunal and disturb the conclusion by imposing the personal view of
respondent 2, who is not qualified to judge the effect of films on the publci. Shri Shah further
submitted that respondnet 2 has not done abythng except teiterating the grounds which were given
by the censor Board was imaginary and the film did not contravune any of the guidelines a made by

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 Hiralal M. Shah vs The Central Board Of Film ... on 28 February, 1986

the Central Governmetn. Shri C.J.Shah, learned counsel appearing on behalf on of the respondents,
on the other hand urged that he Cental Governemnt was perfectly justified in exersising revisional
jurisdiction under S 6 of the Act as the Appellate Tribunal and had failed to furnish cogent reasons
for grant of certificatre. The learned counsel urged that the reaons furnished by the Censor Board
should hjave been accepted as that board comprises members who are familiar with the film work
and are aware as to what would be the impact of a particular film of on the general public.

7. Before considering the grievance of the petitioner, it is necessary to set out of some of the
provisions of th Act and the guidelines. The object of the Act is to make provision for the
certification of cinematograph films for exhibition and for regulating exhibitions by means of
cinematographs. The Central Government is empoiwered to constitute a board of Film Censor under
S. 3 of the Act. Section 5-A prescribes that the after examinign the film the Board may grant
certificate for unrestructed public exhibition a 'U' certificate or a 'A' certificate for exhibition only to
adults. Section 5-B sets out principles sfor guidance in certifying films and reads as udner:

"5-B(1) A film shall not be certified for public exhibition if in the opinion of the authority competent
to grant the certificates, the film or any part of its is against the interests security of the state,
friendly relations with morality, or involves defamation or contempt of Court or is like;ly in incite
the commission of any offence.

Subjects to the provision contained in sub-section (1) the Central Governmetn issue such direction
as it may think fit setting out the principle which shall guide the athority competent to grant
certificates under this Act in sanctioning films for public exhibition".

8. Section 5-C confers a right upon an aggrieved person to file an appeal before the Appellate
Tribunal. Section 5-D deals with constitution od Appellate Tribunal and prescribed that the Tribunal
shall consist of a Chairman and not more that four oter members apponted by the Central
Gvoernemtn. A personis not qualified for appointment as a chariman unless he is a retired Judge of
a High court or a person who is qualified to be a Judge of the High Couft . The Central Government
is required to appont such person who are qualified to jdge the effect of films on the public as
members of the Tribunal. TheTribunal can make any order in relationn to a film, as it thinks fit,
after making such inquiry as ti consders necessary and after giving the appellant and the Board an
opportunity of bneing heard in the matter. Secion 6 of the Act deals with revisional pwers fo the
Central Governmetn to call for the record of any proceedings decided by the Tribunal and make such
order in relation therto as it thinks fit after making inquiry into the matter and after giving
opportunity to the party likely to be affected by the decision.

9. In exercise of powers conferred by sub-sec (2) of s. 5-B of the Act the CEntral Gvoernem,nt has
framed the gudelines and it sets out that the objects of film censorship will be to ensure that (a) the
medium of film remains responsible and sensitive to the values and standards of society; (b)
artistice expression and creative freedom are not unduly curbed; and ( c) censorship is responsible
to social change. The four relevant guideliines for the purpose of this petition ar 2(I), (ii), (iii) and
(iv). Gudeline 2(I) requires the Board to ensure that anti-social activitess, such as violence, are not
glorified or justified, Guimelne 2(ii) to ensure that the modus operndi of criminals or other visuals

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 Hiralal M. Shah vs The Central Board Of Film ... on 28 February, 1986

or word likely to incite the commsion of any offece are nt depicted; Guidline 2(iii) requires to ensure
tah pontless or avoilable secnes of violence , cruetly and horror to not shown ans d Guidline 2(iv)
requires to ensure that human sensibilites are not offended by vulgarity, obsecnity and ...

10. The Appellate Tribunal was constituted under Section 5-D of gthe Act which was introduced
Amending Act No. 49|81 dt. Dec. 18, 1981. This amended proviosn , providing for appeal to the
Apppelate Tribubal, was intodeced and the erlier provison for appel to the Central Government was
deleted in veiw of te decidion of the Supreme Court reportede ir , K.a. Abbas v. Union of India, a
petition was filed before the Supreme Court for a declaration that provisions of Part Ii of the
Cinematograghp Act, 1952 together with the rules preoxcired by the Central Government are
unconstitutional and visd. Four contentions were raised in supposrt of the claim and those were (a)
that precensorship itself cannot be toleated under the freedom it speech and expression; (b) that
even if it weer egtimate restraint on the freedom it must be exercised on very definite principle
wnhich leave no room for arbitray actions, ( c) that there must be a reaasonable time limit the fixed
for the decision fof the authorites censsroing the filem, and (d) that the appeal should lie to a Court
or to an imndependent tribunal and not the Central Government. The solicitor General appearing
on behalf of the Unin of Indias, conceded that points ( c) and (d) are correct, and assured the
supreme Court that the Government woild at the earliest possible effectuate them at the
opportunity. The Supreme Court held that the in view of the procedureal safeguards, assurd to be
introduced by the solicitor General , will make censofship accord with our fundametal law. The
Appellate Trtibunal a was constituted in pursance of the assurance and it is a obvous in that the
intendtion of the Legislature was to have an independent bod of experts presiede ouver by a retired
Judge of the High Court or a person qualified tobe a Judge of the High Court. The Parliament
constituted such high court. The Parliament constituted such high poowered body with an intention
tocreate confidence in the mind of the producer of a film that his case would be examined by an
independent forum the effect of the film on public.

11. IN the present case the reasons given by the Board for refusal of certiificate are (1) that the film is
an attempt to exploit a recent trtagic incident, (2) it shows that rutheless, cold blooded, unprovoked
kilings of several innocent persons, (3) the main culprit is shown to be deriving sadistic pleasure
each time when he kills a apersom, (4) the theme and treatment of the film involve a certain amount
of mouds operandi which can have an emuoative impacft on the minds of educated yoouth, and (5)
the film hurts the sensibilites of the viewiers by deppravity. Agaiinst this decision of th Board, the
petitioner carried an appeal and its was heard by the Tribunal consisting of the Chairman Shri. V.D.
Misra, a former Judge of the Delhji High Court, shri N.J. Kakath and Smt. Manmohani Sehgal, thth
two members. I am informed at the bar that Shri Kamat is a linguist and is familiar with the Marathi
language. The TRibunal viwed the film and sugested 11 cutss and the petitoner apcepted the same
and theratfter the film was again viewd and the Tribunal felt 'A' certificare witht he cuts should be
granted. The respondent 2 the Joint Secretary to the Government of India, has disturbed the
decision broadly on three grounds (1) that the Tribunal has not given any cogent reasons for
disagreeting with the Board which consisted of emient people people with a lot of experience in
exaamination of films,(2) the wanton killings by the group led by a ring leader and the details of
killings and the victims shown in the film atre onjections in general and are likely to mislead
immature young and person prone to delinh particular and (3) that the guidelined issued violated in

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 Hiralal M. Shah vs The Central Board Of Film ... on 28 February, 1986

the film as in scne after scne brutal and imndless violence has been shown while depicting the
murders. Respondent 2 while had been the film before passing the order, but does not claim any
familiarity with the Marathi lanuage or claim to be qualified to Judfge the effect of films on the
public .

12. In my judgement, the submission urged on behalf of the petitioner that respondent 2 committed
an aeeor in disturbing the ordoer of the Appelalte Tribunal by exercise of powers under s. of the Act
deserves acceptance. It is necessary to remeber that the legislature has constitued the Appellate
Tribunal in accordance with the assurance given by the Solicitor GEneral to the supreme Court that
the appeal woulb be provided to an independent Tribunal and nor to the Central Government. The
Legislature in its wisdom prescribed that he Tribunal should consit of a Chiarmn who is a retired
HIgh Court Judge and the members qualified to judge the effect and the effect of films on the public.

The Act prescribeds only one appeal to the Tribunal and the Tribunal is required to dispose of the
appeal after hearing the aggrived person as well as the Censor Board who has declined to grant the
certificate. To give effect to theintentnion of the Legilsature it is necessary that orders of the
Appelate Tribunal are not made subject of the further appeal by the Central Governmetn and indeed
the Legilsture does not prescribe for a second round of apeal s 6 of the ACt undoubtedly confers the
revisional powers of on the Central Government, but it hardly requires to be stated that exercise of
such powers should be in exceptional circumstances and not as a matter of routine. The pwoers are
delegated by the Central Government in faouvr of the Joint Secretary is not qualified to judege
Secretary is not qualigied to judge the effect fo film on the puhblic, nor he has an experience in
excamination of films.

13. To permit such a burecrat to disturbn the conclusion recorded by the Appealalte Trtibual, which
is a high powered body, by reviewing the film and by substituting the personal view, would make the
mockery of the substantive right of appeal conferred on the producer. It canot be denied tht the
Central Government has power under s. 6 of any maater decided by the Appellate Tribunal , but
such power should be exercise very sparingly and in exceptional circumstances. Moreover, such
power should be exercised not to determine whether the film suffers from the vice of indency or
immorality, but only to determine whether the public exhibition would be detrimental to the interst
of the country or the security of the Sate or public order. The question as to whter a film ofends the
guidelines as reagards the violence, vulgarity or obscentiy depends upon several fatual
ciircumstances and in respect of which when the expert body, likee and Appelate Tribunal , has
opined, then it is desirable that the Central Government should not causaly disturb that conclusion
and especially by exercise of powers by the Secretary who is not qualified to judge the effect of film
of the public. Respondnet 2 should not have substituted his personal opinion in place of the decision
given by an expert body constituted by the statutory provisions. The decision recorded b y
respondent 2 cleary indicates that the matter has been treated as another appeal against the order of
the Appelate Tribunal and that was certainly not permisible. The decision of respondent 2 is
therefore required to be set aside on the ground of exceeding jurisdiction conferred under s 6 of the
Act.

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14. But apart from this consideration , in my judgement, the reasons given by respondent 2 for the
setting aside the order of the Appellate Tribunal are not sustainbaly even on merits. To ascertain
whether the observation made by reaspondent 2 on the merits of the film in the presenfc of the
learned counsel and my mother tongue being Marathi, I could follow the theme and dialogue very
well. Respondent 2 observation in the impugned order that the Tribunal has not given any cogent
reasons for disagreeing with the Censor Board which consited of eminent people with lot of
experience in examination of the films. Thiss observation cllearly over looked that the Appelalte
Tribunal also consited of emient people with larger experince in examination of films. It is difficult
to understand how respondent 2 could disturb the conclusion of the Appellate Tribunal on
disagreement with the Censor Board were not given. Respondent 2 failed to appraciate that the
Appelalte Tribunal was not expected to write a long judgement dealing with eachg and every aspecpt
of the matter. The Appellate Tribunal had viewed the film and then suggested an many as 11 cuts.
Thereafter the Appellate Tribunal aganin viewed the film and heard both, the petitioner and the
Censor Board, in support of their respective claims. The appelate Tribunal only thereafter recorded
a reeasoned order. It is not permissible for respondetn 2 to set aside this order in revisionary
jurisdction merely because respondent 2 feets that contrary view taken by the Censor Baord is
preferable.

15. Respondnet 2 then observed that in the film more than half a dozen murders have been depicted
in detail and this statement is factually incorrect. The film shows only six murders and they have not
been depicted in detail. The observations of respondent 2 "In my ipinion , the wanton killings by the
group led by a ring leader and detaild os killings immature young perosns prone to delinquency in
particular" clearly imdicate that respondent 2 was substituting his personal subjectives opinionm in
place of the decision taken byt he Appelate Tribunal. It s always risky and dangerous to import tohn
the personal views in such matters and more so when one is not qualified to judge the effect the of
film on the ppublic. The bureaucracy should be cautions to rush in the field whichis secialised and it
wouldn be edtemely prjudicial to a film maker who has spent a large amount and time over
preparation of the film of the to told by a bureaucrat that ascccording to his personal moral
standards the film should not be exhibited. I must observed that after viewing the film I did not feel
that th film depicts wanton killings or is likely to mislead immature yound people prone to
delinquence in particular, nor did I feel that the kilings are causual and without anyu provocation.
The offernders committed murders with an intention to rob victims and the film at no stage glorigies
to ro justifies the acion of the accused, but on the other desireis to convery a message that the crime
does not pay. I wish to made make it very clear that I am not ... convey that the conclusion recorded
bythe Appellate Tribunal could not be said tobe faulty or suffering from any infirmity.

16. Respondnet 2 also observed that the Guidelines 2(I) to (iv) were violated by the petitioner, but it
is not possisble t accept the observations made by respondent 2 in this conneciton. At no stage in the
film anti-social activites and the violence are tried tobe glorigied or justified, bnut on the other hand
erfforts are made to convey that violence and anti-social activites should be prevented ande if any
one tries to indulge in the same then the arms of law would reach and the offender would not only
be punished but would ruin his entire family. It is also futlie for respondent 2 to suggest that the
modus operandi of criminals of other visuals are likely to incite the commision of any offence. It was
urged on behalf of the respondnets tht he offernder are shown to the be committing murders by

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 Hiralal M. Shah vs The Central Board Of Film ... on 28 February, 1986

strangfulation with the aid of a rope and are also spreading aromatic liquid at the scne of offence
and that is the modus operandi which is likely to incite the commision of furthr offencve by the
young people. It is impossible otoaccede tot he submision for more than one reason. In the first
instance, there no modus operandi in strangualtion of victims with the aid or fope or by sprading
aromaticv liwuid at the scne of offence. This modus operandi is not unknown to criminal world.
Scondly, the Appelate Trtibunal while suggesting the cuts provided that the sequenfces showing and
the murders should be reducede to minimum andit was specifically directed that visual showinhg
sppprayimg of scent should be deleted. The petioner accepted the cutes and after reviwing the film
the Appelate Tribunal ahd granted certifiiiicate. Guideline (iii) prescribed that pointless or avoidable
scenes of violence, cruelty and horror should not be shown. The Appellate Tribunal diirected the
petitioner to delete all gruesome shots and permitted to delete all gruesome shots and permitted
only one shot shwong the throwing of string round the neck of the victim. The petitioner was lso
directed to redcue the sequence showing the murders and on satisfaction that such cuts were in fact
implemente., the appelalte Tribunal granted the certificate, .It is difficult to understand how
respondnet 2 thereafter can some to come to the conclusion that the film depicts pointless or
avoidable scnes of violence. The ;last ground suggested by respondnet 2 is that thehuman
sensibilites are offende by vulgarity, obscenity and depravity, but the learned counsel for the
respondetnt had to concede that the film does not suffer from this alleged violated of the guidelines
and could not be branded as vulgar or obscne. In my jugement, respondent 2 was was clearly in
error in setting aside the well reasoned order of the Appelate Tribunal and subsititue his personal
opinion. The order of respondent 2 therefore deserves to be set aside.

17. Accordingly, petition succeeds and the rules is made absoltue in terms of prayer (a). The
respondent are directed to issue certificate to the film of the petitioer, as direicted by the Appelate
Tribunal , within a period of two weeks from today. In case of petitioner submits the Hindi cersion
of the film for cedrtificates then the respondents shall dispose of that application in accofdance with
the rules and in the light of this judgement.

18. In the circumstances of the case, there will be no order as to costs.

19. Petitioner allowed.

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