DIRECTOR GENERAL, DIRECTORATE GENERAL OF DOORDARSHAN AND ORS. v. ANAND PATWARDHAN

Citation: [2006] SUPP. 5 S.C.R. 403

Court: Supreme Court of India

Bench: AR. LAKSHMANAN, LOKESHWAR SINGH PANTA

Case summary

DIRECTOR GENERAL, DIRECTORATE GENERAL OF DOORDARSHAN AND ORS. v. ANAND PATWARDHAN.pdf

Judgment text

DIRECTOR GENERAL, DIRECTORATE GENERAL OF DOORDARSHAN AND ORS. v. ANAND PATWARDHAN AUGUST 25, 2006 [DR. AR LAKSHMANAN AND LOKESHWAR SINGH PANTA, JJ. ] Constitution of India, 1950: Articles ! 9(I)(a) and 19(2)-DocumentG/y fil1JJ--Given U/A certificate by Central Board ofFilm Certification-Tele-casting ofon National Channel ofDoordarshan-Refusal on the ground that its telecast would be violative of policy ofDoordarshan not to telecast 'A 'certifiedfilm-Held, the documentary film producer has a right to covey his perception on the oppression ofwomen, flawed understanding ofmanhood and evils ofcommunal violence through the film produced by him-Scenes in the film must be seen in the context of its message and must be evaluated in its entirety-The film does not create any law and order problem and falls within the l! mits prescribed by the Constitution-Basic guidelines on the test ofobscenity laid down-Reluctance ofDoordarshan in telecasting the film deprecated-Indian Penal Code, 1860ss.

292 and 293-Cinematograph Act, 1952. Respondent No. 1 made a to the prurient interest; the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in th is section: and the subject matter, taken as whole. lacks serious literary, artistic, political, educational or scientific value. Th~refore, one can observe that. the basic guidelines for the tier of fact must be: (a) whtther "the average person, applying contemporary community standarJs" wou Id find that the work, taken as a whole, appeals to the prurient interest..... ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole. Jacks serious literary, artistic political, or sci. :111ific value. The Constitution of 'ndia guarantees everyone the right to freedom of expression.

India is a;,c a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranked by Article 19 thereof, which states: I. Everyone shall have the right to ho1d opinions without interference. 2. Everyone shall have the right to freedom of expression: this right shall include freedom to seek, receive and impart information and ideas. of all kinds regardless of frontiers, either orally, in writing or in print, in form of art, or through any other media of his choice. This rizht guaranteed by the Indian Constitution is subject to various restrictions. Like, respect of the rights or reputation of others; protection of national security or of public order, or of public health or morals etc. The catchword here is 'reasonable restriction' which corresponds to the societal norms of decency.

In the present matter, the documentary film Father, Son and Holy War depicts social vices that are eating into the very foundation of our Constitutior;al. Communal riots, caste and class issues and violence against women are issues that require every citizen's attention for a feasible solution. Only the citizens especially the youth of our Nation who are correctly DIRECTORGEN. , DIRECTORATE GEN. OF OOORDARSHAN 1•. ANAND Pr\T\V:\RDfL\N rtAKS\l\1ANr\N. J. ] 4} 7 informed can arrive at a correct solution. This documentary film in our considered opinion showcases a real picture of crime and violence against women and members of varim1s religious groups perpetrated by politically motivated leaders for political, social and personal gains. This film so far as our opinion goes does not violate any Constitutional pr1,·;ision nor will create any law and order problems as the Doordarshan fears.

This movie falls well within the limits prescribed by our Constitution and does not appeal to the prurient interests in an average person, applying contemporary community standards while taking the work as a whole, the work is not patently offensive and does not proceed to deprave and corrupt any average Indian citizen's mind. In addition we are emphasizing here on the fact that many Committees have screened this documentary film including a committee set up by the appellants themselves involving media experts, representatives of various religions and politics, who have opined that, "It is a very good film and must be shown. It may alienate sections of Indian society and screening may lead to reactions by organized groups. ln the unanimous view of the committee that protest is an important part of Indian democracy and was a part of its fight for independence, which is also a compelling reason for the film to be shown. Keeping these in mind the committee recommends that the.

screening of the film be preceded by a discussion in which alternative views are given by persons with different views. " As we see, only Doordarshan has an opposition with airing the documentary film stating policy related difficulties. To this we are of the view that, since the Central Board of Film Certification has already cleared the documentary film in question by award of U/A ce1tificate, the policy of Doordarshan of non-telecast of 'A' certified films will not stand on the way of this film being aired. A blanket ban as this one will be in violation of Article 19(2) of the Constitution which guarantees right of a citizen to express himself/herself. The Supreme Court has clarified on this regard way back in 1970, in the case of K. A. Abbas v. The Union of India & Anr.. [l 970] 2 SCC 780 where this Court held that, "Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. " In yet another case of Ramesh v.

Union of India, [1988] I SCC 668 this court has observed that, ".... that the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. This, in our opinion, is the correct approach in judging the effect uf exhibition of film or of reading a book. It is the standard of ordinary reasonable man or as they say in English law "the man on the top of Claapham omnibus. " Hence, in our view, the correct approach to be taken here is to look at the documentary film as a whole and not in bits, as any message that is purported to be conveyed by way of a film cannot be conveyed just by watching certain bits of the film. In the present situation the documentary film is seeking to portray certain evils prevalent in our society and is not seeking to cater to the prurient interests in any person.

Therefore, we have no hesitation in saying that this documentary film if judged in its entirety has theme and message to convey and the view taken by the appellants that the film is not suitable for telecast is erroneous. In this regard, the guidelines issued by the Central Government to evaluate films gain importance and can be referred to. Clause 3 of the Guidelines reads as follows: "Clause 3: The Board of Film Certification shall also ensure that the film: (i) is judged in its entirety from the point of the overall impact; and (ii) is examined in the light ofthe period depicted in the film and the contemporary standards of the country and the people to which the film relates, provided that the film does not deprave the morality of the audience. " It was held in Bobby Art International & Ors. v. Om Pal Singh Hoon and Ors.

, [1996] 4 SCC I, K A Abbas (Supra) that a film was required to be viewed as a whole, and in the context of the message that the filmmaker p desired to communicate. In this film too, scenes must be seen in. the context of the message of exploitation of women through insecurities created in men and the film must be evaluated in its entirety. In LIC of India v. Prof Manubhai D. Shah with VO! v. Cinemart Foundation, [1992] 3 sec 637, it was held that m~rely because a film was critical of the State Government, DD could not deny selection and publication -of the film. This film was an award winning film about the Bhopal Gas Tragedy. Likewise, in S. Rangarajan v. P. Jagjivan Ram & Ors. , (1989] 2 SCC 574, it has been observed that Censors should not have an orthodox or conservative outlook, but must be responsive to change and must go with the · DIRECTOR GEN. , DIRECTORATEGEN. OF DOORDARSHAN ''· ANAND PATWARDHAN[LAKSHMANAN, J] 4J9 current climate.

The state cannot prevent open discussion, however hateful to its policies. This was about a film that criticized the existing reservation policy and proposed an alternative system based on economic deprivation. We also are aware that the documentary film made by respondent no. I has won many National and International awards. The documentary film won National Awards in two categories viz. "Best Investigative Film" and "Best Film on Social Issues" in the 42nd National Film Festival 1995, conducted by the Ministry ofInformation and Broadcasting. The documentary film also won Special Jury Award in Israel, Japan and Canada. Keeping these facts in view ::> we find it absurd that a documentary film that has won the National award is facing problems for it being screened on the National Television.

CONCLUSION: In our opinion, the respondent has a right to convey his perception on the oppression of women, flawed understanding of manhood and evils of communal violence through the documentary film produced by him. As already noticed, this film has won awards for best investigative film and best film on social issues at the national level. The documentary film has won several awards at the international level as well. The freedom of expression, which is legitimate and constitutionally protected, cannot be held to ransom on a mere fall of a hat. The film in its entirety has a serious message to convey and is relevant in the present context. Doordarshan being a State controlled agency funded by public funds could not have denied access to screen the respondent's documentary except on specified valid grounds.

The refusal of the appellants to telecast the film in the current case in the face of unanimous recommendations by their own Committees set up in accordance to the direction of this Court is an issue to be addressed apart. The High Court of Bombay has not substituted its discretion for that of the authorities. On the contrary, the High Court has ruled that when the decision making process has itself resulted in the recommendations to telecast; it is not open to the Doordarshan to find other means just to circumvent this recommendation. The High Court has only corrected the failure ofDoordarshan to follow through with their own decision making process on the pretext of a Circular which being non-statutory cannot be used to limit right ofexpression. Besides the Circular, in terms, applies only to feature films and not to documentaries.

Before ruling thus, the High Court viewed the film for itself which is a process followed innumerable times before even by this Court in cases concerning the official media to satisfy itself the recommendations of the Expert Committee was not patently absurd. Thus, it is not a case where the High Court has substituted its judgment for that of the decision-making authority but one where the decision made by due process has been upheld by the High Court. In our view, the Doordarshan being a National Channel controls airwaves, which are public property. The right of the people to be informed calls for channelizing and streamlining Doordarshan's control over the national telecast media vehicle. We also are of the view that, Doordarshan all through the present matter has been displaying a sad reluctance in telecasting this film, which was made almost ten years ago.

We can trace a history of Doordarshan not telecasting many films in spite of them being award winning films at the national and international level, this can be seen in the case of films like "In Memory of Friends", "Ram ke Naam" etc. In addition an interesting observation that can be arrived is that Doordarshan has been finding flimsy excuses time and again as clear from the facts in not telecasting the documentary film in question every time the film was sought to be aired either at the instance of the respondent or due to the orders of the court. This in our view is highly irrational and is blatant violation ofthe right guaranteed under Article 19(l)(a) of the Constitution. This behavior of Doordarshan would justify us in stating that Doordarshan is being dictated by rules of ma/ajides and arbitrariness in taking decisions with regard to the telecast of the resp()ndents film. In light of the above, the instant appeal at the instance of Doordarshan is devoid of any merits.

Thus, the impugned judgment deserves to be upheld and sustained by this Court. In the result, the appeal is dismissed and the orders passed by the learned Judges ofthe Division Bench are affirmed. However, there will be no order as to costs. The appellant-Doordarshan is directed to exhibit the entire documentary film of the respondent Father, Son and Holy War on Channel No. I or 2 within 8 weeks from today on such convenient date and time as may be fixed by Doordarshan. RP. Appeal dismissed.