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PETITIONER: BOBBY ART INTERNATIONAL, ETC.

       Vs.

RESPONDENT: OM PAL SINGH HOON & ORS.

DATE OF JUDGMENT:       01/05/1996

BENCH: CJI, S.P. BHARUCHA , B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                             WITH CIVIL APPEAL NOS. 7523, 7525-27 AND 7524 (Arising out  of  SLP(Civil)  No.  8211/96,  SLP(Civil)  No. 10519-21/96 (CC No. 1828-1830/96 & SLP(C) No. 9363/96)                       J U D G M E N T BHARUCHA, J.      Special leave granted.      These appeals  impugn  the  judgment  and  order  of  a Division Bench  of the High Court of Delhi in Letters Patent appeals. The  Letters Patent appeals challenged the judgment and  order  of  a  learned  single  judge  allowing  a  writ petition. The Letters Patent appeals were dismissed, subject to  a   direction  to   the  Union   of  India  (the  second respondent). The  writ  petition  was  filed  by  the  first respondent to quash the certificate of exhibition awarded to the film  "Bandit Queen"  and to  restrain its exhibition in India.      The film  deals with  the life  of Phoolan  Devi. It is based upon  a true  story. Still  a child,  Phoolan Devi was married off  to a  man old  enough to be her father. She was beaten and  raped by  him. She  was tormented by the boys of the village; and beaten by them when she foiled the advances of one  of  them.  A  village  panchayat  called  after  the incident blamed  Phoolan Devi  for attempting  to entice the boy, who  belonged to  a higher  caste. Consequent  upon the decision of the village Panchayat. Phoolan Devi had to leave the village.  She  was  then  arrested  by  the  Police  and subjected  to   indignity  and  humiliation  in  the  Police station. Upon  the intervention  of  some  persons  she  was released  on   bail;  their  intervention  was  not  due  to compassion but  to satisfy  their carnal  appetite.  Phoolan Devi  was  thereafter  kidnapped  by  dacoits  and  sexually brutalised by their leader, a man named Babu Gujjar. Another member of  the gang, Vikram Mallah, shot Babu Gujjar dead in a fit  of rag  while he was assaulting phoolan Devi. Phoolan Devi was  attracted by  Vikram Mallah  and threw  her not in with him. Along with Vikram Mallah she accosted her husband, tied him  to a tree and took her revenge by brutally beating him. One  Sri Ram,  the leader of a gang of Thakurs, who had been released  from jail,  made advances to Phoolan Devi and

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was spurned.  He killed  Vikram Mallah.  Having lost  Vikram Mallah’s protection, Phoolan Devi was gang-raped by Sri Ram, Lalaram and others. She was stripped naked, paraded and made to fetch  water from  the village well under the gaze of the villagers, but  no one came to her rescue. To avenge herself upon her  persecutors, she  joined a  dacoits gang headed by Baba  Mustkin.   In  avenging  herself  upon  Sri  Ram,  she humiliated and  killed twenty  Thakurs  of  the  village  of Behmai. Ultimately,  she surrendered  and was  in jail for a number of years.      (We have  not viewed the film. The story thereof as set out above comes from the judgment  under appeal.)      The film  is based on a book written by Mala Sen called "India’s Bandit  Queen". The  book has  been in  the  market since the year 1991 without objection.      On 17th  August,  1994,  the  film  was  presented  for certification to  the Censor  Board under  the Cinematograph Act, 1952.  The Examining  Committee  of  the  Censor  Board referred it  to the  Revising Committee  under Rule 24(1) of the Cinematographic  (Certification) Rules,  1983.  On  19th July, 1995, the Revising Committee recommended that the film be granted  an ’A’ certificate, subject to certain excisions and modifications. (An ’A’ certificate implies that the film may be viewed only by adults).      Aggrieved by the decision of the Revising Committee, an appeal was filed under Section SC of the Cinematographic Act before the  Appellate Tribunal.  It is constituted by virtue of the provisions of Section 5C of the Cinematograph Act and consists of  the Chairman  and members who "are qualified to judge the  effect of  films on  the public".  In the present case the tribunal was chaired by Lentin. J., a retired Judge of the  Bombay High  Court,  and  three  ladies,  Smt.  Sara Mohammad, Dr.  Sarayu V. Doshi & Smt. Reena Kumari, were its members.      The Tribunal’s order states that the film "portrays the trials and tribulations and the various humiliations (mental and physical)  heaped on  her (Phoolan  Devi) from childhood onwards, which  out of  desperation and  misery drove her to dacoity and  the revenge  which she  takes on her tormentors and those who had humiliated and tortured and had physically abused her. 3.1  The tone  and tenor  of  the  dialogues  in  this  film reflect the  nuances locally  and habitually used and spoken in the  villages and  in the  ravines of  the  Chambal,  not bereft of  expletives used  for force  and effect  by way of normal and  common parlance in those parts; these expletives are not  intended to  be taken  literally. There  in nothing sensual or   sexual  about these expletives used as they are in ordinary  and habitual  course as  the language  in those parts and  express as  they to emotions such as anger, rage, frustration and the like, and represent as they do the color of the various locales in this film."      The tribunal  accepted the  argument of  the  appellant before it  in respect  of certain  scenes where excisions or modifications had been required. We shall restrict ourselves to the  Tribunal’s findings  on the observations relating to the film  as a  whole. A  scene of policemen hitting Phoolan Devi with  the butt of a gun had been ordered to be deleted; the Tribunal  said that  the deletion "would negate the very impact  of   this  film  in  its  endeavour  to  depict  the maltreatment and  cruelty heaped  upon  the  victim  by  the perpetrators, which  resulted in the former turning her face against, and  seeking revenge  on, the  perpetrators of  her humiliation and  degradation. Deletion  or even reduction of this sequence  which follow,  as it  would  also  leave  the

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average audience  bewildered as  to  the  intensity  of  the bitterness the victim right feels towards her tormentors." Another scene  dealt with  the rape  of Phoolan Devi by Babu Gujjar. The  sequence was  in three  parts and the appellant had volunteered  to reduce  the first  two sequences "to the bare cinematic necessity": the Tribunal did not accept this, having ascertained  what was  meant. It  directed  that  the second of  the three  sequences be  deleted altogether,  and that there  be a  reduction by 30% of the first sequence and by 20%  of the  third sequence,  with the qualification that the visuals  of the  man’s bare  posterior in  the first and third sequences  be reduced  to a flash. Exception was taken before the  Tribunal to  the direction  to reduce by 70% the sequence of Phoolan Devi torturing her husband. The Tribunal found that  the sequence brought to the fore the ferocity of Phoolan Devi’s  hatred and  revulsion towards  the  man  who drove her  to being  the hunted  dacoit she  became. Phoolan Devi’s  pent-up   anger,   emotions   and   revulsion   were demonstrated in  the scene.  It was  a  powerful  scene  the reduction of  which would  negate its  impact. Much emphasis was laid  before us upon the fact that Phoolan Devi is shown naked being  paraded in  the village after being humiliated. The Tribunal  observed that  these visuals  could but create sympathy towards  the unfortunate  woman in  particular  and revulsion against  the perpetrators  of crimes against women in general.  The sequence was an integral part of the story. It was not sensual or sexual, and was intended to, as indeed did, create  revulsion in  the minds of the average audience towards the  tormentors and  oppressors of women. "To delete or even  to reduce  these climactic  visuals", the  Tribunal said, "would  be  a  sacrilege".  It  added,  "4.9.1.  While recommending  the   deletion  of  the  visuals  aforestated, perhaps the  Revising Committee  momentarily    aforestated, perhaps   the    Revising   Committee   momentarily   forgot "Schindier’s List"  which was  passed by the Board without a cut and despite prolonged sequences of frontal nudity of men and women  depicted therein,  and  rightly  so  because  the scenes of  frontal nudity  in that  film  were  intended  to create a  feeling or  revulsion and  a sense  of horror that such crimes  could indeed  be  committed.  Likewise  in  the present film." The Tribunal permitted certain words of abuse in the  vernacular to  be retained because of the context in which they  were spoken  and the  persons by  whom they were spoken: "spoken  as they  are as colloquially and as part of their daily  life,  it  would  be  unfair  on  our  part  to castigate the  use of  these words  which we would otherwise have done".      Upon the basis of this unanimous order of the Tribunal, the film was granted an ’A’ certificate.      On 31st  August, 1995,  the  film  was  screened,  with English sub-titles,  at the Siri Fort Film Festival of India with the  permission of  the  Ministry  of  Information  and Broadcasting. From 25th January, 1996, onwards, the censored film was  open to  public viewing at various cinema theatres in the country.      On 27th  January, 1996,  the first respondent filed the writ petition  before the  Delhi High Court seeking to quash the certificate  granted to  the film  and to  restrain  its exhibition in India. The first respondent stated in the writ petition that  the was  a Hindu  and Gujjar by caste. He was the president  of the Gujjar Gaurav Sansthan and involved in the welfare  of the  Gujjar community.  He had seen the film when it was exhibited at the International Film Festival; he had felt  aggrieved and  his  fundamental  rights  had  been violated. Though audiences were led to believe that the film

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depicted the  character of  "a former queen of ravings" also known as  Phoolan Devi,  the depiction  was  "abhorrent  and unconscionable and  a slur  on the  womanhood of India". The petitioner and  his community  had been  depicted in  a most depraved way  specially in the scene of rape by Babu Gujjar, which scene  was "suggestive  of the  moral depravity of the Gujjar community  as rapists  and the  use of  the name Babu Gujjar for  the principal  villian lowered the reputation of the Gujjar  community and  the petitioner.  It lowered  t he respect of  the petitioner  in the  eyes of  society and his friends. The  scene of  rape was  obscene and horrendous and cast a  slur on  the face  of the Gujjar community. The film went beyond  the limits  of decency and lowered the prestige and position  of the  woman in  general and the community of Mahallas  in  particular.  The  first  respondent  had  been discriminated against  and Articles  14, 19  and 21  of  the Constitution had been violated.      The learned  Single Judge allowed the writ petition and quashed the certificate granted to the film. He directed the Censor Board  to consider the grant of an ’A’ certificate to it after  excisions and modifications in accordance with his order had  been made.  Till a  fresh certificate was granted the screening of the film was injuncted.      The Division  Bench,  in  the  judgment  under  appeal, upheld the  view taken  by the  learned single Judge. Having viewed the  film, it examined it in regard to three aspects. The first  dealt with  the frontal  nudity scene. The scene, the Division  Bench said,  ran for  a full  two minutes. The heroine was  stripped totally  naked in  the gaze of about a hundred villagers  standing in a circle at a distance around a well  and she with her front, including her private parts, exposed. The  Division  Bench  noted  the  findings  of  the Tribunal in  regard to  this scene (which have been referred to above)  and held,  "In the  face  of  a  finding  by  the Appellate Tribunal of the scene creating revulsion, the only inference could  have been  that the  scene of total frontal nudity from  top to  toes was  ’indecent’ within Section 5-B and Article  19(2)." The  scene also offended the guidelines in para 2(ix), para 2(xi) and para 2(vii). The second aspect that was  considered by  the Division  Bench was  that which showed the naked posterior of Babu Gujjar in the rape scene. As noticed  by the  Division Bench by stop watch, this scene ran for  about 20  seconds. It  showed sexual intercourse by man and  his physical  movement, with his posterior exposed. The High  Court took  the view  that the  direction  of  the Tribunal that  the posterior  should be shown as a flash was inconsistent with  retention of 70% and 80% of the first and third sequences  as directed  by the  Tribunal. The scene of violent rape  was disgusting and revolting and it denigrated and degraded  women. The  third aspect  that the  High Court concerned itself  with was  the use  of  expletives  and  it concluded  that   they  should  be  deleted.  Over-all,  the Division Bench was of the view that the Tribunal’s order was vitiated by the use of the wrong tests.      Section 5-B  of the  Cinematograph  Act,  which  echoes Article 19(2),  states that  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, inter alia, decency. Under the provisions of sub-section (2) of Section 5-B the Central Government is  empowered to issue directions section out the principles which  shall guide  the  authority  competent  to grant  certificates   in  sanctioning   films   for   public exhibition.      The guidelines  earlier issued were

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    revised in 1991. Clause (1) thereof      reads thus:      "1.   The    objectives   of   film      certification  will  be  to  ensure      that -      (a)  the  medium  of  film  remains      responsible and  sensitive  to  the      values and standards of society:      (b)   artistic    expression    and      creative  freedom  are  not  unduly      curbed;      (c) certification  is responsive to      social change;      (d) the  medium  of  film  provides      clean and  healthy  entertainments;      and      (e) as far as possible, the film is      or     aesthetic      value     and      cinematically of a good standard."      Clause (2) states that the Board of      Film Censors shall ensure that-      "(vii) human  sensibilities are not      offended by vulgarity, obscenity or      depravity;      xxx            xxx             xxx      (ix)    scenes     degrading     or      denigrating women in any manner are      not presented:      (ix)   scenes    involving   sexual      violence against women like attempt      to  rape,   rape  or  any  form  of      molestation or  scenes of a similar      nature are avoided, and if any such      incident is  germane to  the theme,      they  shall   be  reduced   to  the      minimum and no details are shown;      xxx         xxx               xxx      Clause (3) reads thus :      "The Board  of  Film  Certification      shall also ensure that the film-      (1) is  judged in its entirety from      the point  of view  of the  overall      impact; and      (ii) is  examined in  the light  of      the 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."      Learned counsel  for the  appellants submitted that the film had  been scrutinised  by the  Tribunal, which  was  an expert body  constituted for that purpose, and it had passed the test  of such  scrutiny. It  was emphasised  that  three members of the four-member Tribunal were ladies and they had not found  anything offensive  in the  film as certified for adult viewing.  The guidelines,  it was  submitted, required the film  did  not  offend  either  Section  5-8(i)  or  the guidelines.  The  submission  of  learned  counsel  for  the appellants was supported by the learned Additional Solicitor General, appearing for the Union of India. Dr. Koul, learned counsel  for   the  first  respondent,  submitted  that  the machinery under cinematograph act was only for those who had some concern  with the  making of the film and that citizens who were offended by it were free to approach the High Court

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under Article  226. There  were compelling  reasons for  the High Court  to pass  the order  that it did not for the film was abhorrent.  What had  also to  be  considered  were  the individual episodes  and the episodes depicting full frontal nudity,  rape  and  the  use  of  swear  ward  offended  the requirements of  sub-clauses (vii),  (ix)  and  (x)  of  the guidelines. The  film violated  the freedom  of  speech  and expression of the first respondent.      The decision  of the court most relevant to the appeals before use was delivered by constitution Bench in K.A, Abbas vs, the  Union of  India &  anr., (1970)  2 S.C.C.  780.  It related to  a documentary  film entitled  "A  Tale  of  Four Cities". The appellant contended in a petition under Article 32 that  he was  entitled to  a certificate for unrestricted public exhibition thereof. What Hidayatullah, C.J.  speaking for the Court, said needs to be reproduced:      "49.  We  may  now  illustrate  out      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 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 so 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 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       included      requirements of  art and literature      include social life and not only in      its ideal  from 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,

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    it cannot  be helped. In our scheme      of things  ideas  having  redeeming      special or  artistic  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 concerned,  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,  No one after viewing      these  episodes  would  think  that      patricide or incest with  one’s own      mother is permissible or suicide in      such circumstances  or tearing  out      one’s   own    eyes   is    natural      consequence. And yet if one goes by      the latter  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. It that were so Verrier      Elwyn’s Phulmat of the Hills or the      same    episode    in    Henryson’s      Testament of  Cressaid (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      Back of  Delhi by  Nadirshah may be      permissible, if  handled delicately      and  as   part   of   an   artistic      portrayal of the confrontation with      Mohammad  Shah  Rangila.  If  Nadir      Shah made golgothas of Skulls, must      we leave  them  out  of  the  story      because people must be made to view      a  historical   them  without  true      history? rape  in all its nakedness      may    be     objectionable     but      Voltaire’s   Candide    would    be      meaningless   without   Cunegonde’s      episode with  the soldier  and  the      story of  Lucrece  could  never  be      depicted on the screen.      50.  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

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    the famous  etching 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   of   read   the      Kamasutra but documentary from them      as a  practical sexual  guide would      be abhorrent.      51. 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 out opinion, this could be done,      But Parliament  has not  legislated      enough,   not   has   the   Central      Government  filled   in  the   gap.      Neither has  separated the artistic      and the socially 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 the level      of home movies."      In Raj  Kapoor & Ors. vs. State & Ors., 1980 (1) S.C.C. 43, this Court was dealing with pro bono publico prosecution against the  producer, actors  and others  connected with  a film called  "Satyem", Sivam,  Sundaram" on  the  ground  of Prurience, moral  depravity and  shocking erosion  of public decency. A  petition to  quash the proceedings was moved and procedural complications  brought the  matter to this Court. One of  the questions  considered was: when can a film to be publicly exhibited be castigated as prurient and obscene and violative of norms against venereal depravity. Krishna Iyer, J., speaking for the Court said,      "Art, morals  and law’s manacles on      aesthetics  are  sensitive  subject      where  jurisprudence   meets  other      social  sciences   and  never  goes      alone  to  bark  and  bite  because      State-made  strait-jacket   is   an      inhibitive prescription  for a free      country unless  enlightened society      actively   participates    in   the      administration   of    justice   to      esthetics.      9.   The      world’s      greatest      paintings,  sculptures,  songs  and      dances, India’s  lustrous heritage,      the Konaraks  and Khajurahos, lofty      epics, luscious  in patches, may be      asphyxiated by  law, if  prudes and

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    prigs and State moralists prescribe      paradigms       and       prescribe      heterodoxies..      14.  I am  satisfied that  the Film      Censor Board,  acting under Section      5-a,  is   specially  entrusted  to      screen  off   the   silver   screen      pictures with offensively invade or      deprave public morals through over-      sex.  There   is  no  doubt  -  and      Counsel no  both sides agree 0 that      a  certificate  by  a  high-powered      Board of  Censors with  specialised      composition and  statutory  mandate      is   not    a   piece    of   utter      inconsequence.   It   is   relevant      material, important  in its impact,      though  not   infallible   in   its      verdict.  But   the  Court  is  not      barred from trying the case because      the certificate  is not conclusive.      Nevertheless, the  magistrate shall      not  brush   aside    what  another      tribunal has,  for similar purpose,      found. May  be, even  a  rebuttable      presumption arises in favour of the      statutory certificate  but could be      negatived by  positive evidence. An      act   of   recognition   of   moral      worthiness by a statutory agency is      not   opinion   evidence   but   an      instance or  transaction where  the      fact in  issue has  been  asserted,      recognised or affirmed.      15.  I am not persuaded that once a      certificate under the Cinematograph      Act is  issued the  Penal Code, Pro      tanto, will  hang limp.  The  court      will examine  the  film  and  judge      whether its  public display, in the      given time  and clime,  so breaches      public  morals  or  depraves  basic      decency  as  to  offend  the  penal      provisions.  Statutory  expressions      are not  petrified by time but must      be updated  by changing  ethos even      as popular ethics are not absolutes      but abide  and evolve  as community      consciousness     enlivens      and      escalates.  Surely,  the  satwa  of      society must  rise progressively if      mankind  is  to  move  towards  its      timeless destiny  and this  can  be      guaranteed  only  if  the  ultimate      value-vision  is   rooted  in   the      unchanging basics, Truth- Goodness-      Beauty,  Satyam,  Sivam,  Sundaram.      The relation  between  Reality  and      Relativity must  haunt the  court’s      evaluation of  obscenity, expressed      in  society’s  pervasive  humanity,      not  law’s   penal   prescriptions.      Social  scientists   and  spiritual      scientists will  broadly agree that      man  lives   not  alone  by  mystic

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    squints, ascetic chants and austere      abnegation but  by luscious love of      Beauty,     sensuous     joy     of      companionship  and   moderate  non-      denial of  normal  demands  of  the      flesh.   Extremes    and   excesses      boomerang   although   some   crazy      artists  and   film  directors   do      practise Oscar  Wilde’s observation      : "Moderation  is  a  fatal  thing.      Nothing succeeds like excess"      In Samaresh  Bose and an. vs. Amal Mitra and anr., 1985 (4) S.C.C.  289, this  Court  was  concerned  with  a  novel entitled "Prajapati";  it was  published in  Sarodiya  Desh, which was  read by  Bengalis of both sexes and almost of all goes all  over India.  A complaint was lodged that the novel was obscene  and had  the tendency  to corrupt the morals of its readers. This Court said :      "   A   vulgar   writing   is   not      necessarily   obscene.    Vulgarity      arouses a  feeling of  disgust  and      revulsion and also boredom but does      not have  the effect  of depraving,      debasing and  corrupting the morals      of any reader of the novel, whereas      obscenity  has   the  tendency   to      deprave  and  corrupt  those  whose      minds are   open  to  such  immoral      influences.  We  may  observe  that      characters like Sukhen, Shikha, the      father and  the brothers of Sukhen,      the business  executives and others      portrayed in  the book are not just      figments    of     the     author’s      imagination,  Such  characters  are      often to  be seen  in real  life in      the society.  The author  who is  a      powerful writer  has used his skill      in focussing  the attention  of the      readers  on   such  characters   in      society   and   to   describe   the      situation more  eloquently has  had      used unconventional and slang words      so  that   in  the   light  of  the      author’s     understanding,     the      appropriate emphasis  is  there  on      the problems. If we place ourselves      in the  position of  the author and      judge the  novel from  his point of      view,  we   find  that  the  author      intends to expose various evils and      ills pervading  the society  and to      pose with  particular emphasis  the      problems which  ail and afflict the      society in  various spheres. He has      used his  own technique,  skill and      choice of  words which  may in  his      opinion, serve properly the purpose      of the novel. If we place ourselves      in the position of readers, who are      likely to  read this  book, and  we      must not  forget that in this class      of readers  there will  probably be      readers of  both sexes  and of  all      ages  between   teenagers  and  the

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    aged, we feel that the readers as a      class will  read the  book  with  a      sense of  shock, and disgust and we      do not  think that  any  reader  on      reading this    book  would  become      depraved, debased and encouraged to      lasciviousness.   It    is    quite      possible that they come across such      characters and  such situations  in      life and  have faced  them  or  may      have to  face them  in life.  On  a      very  anxious   consideration   and      after   carefully    applying   our      judicial   mind    in   making   an      objective assessment  of the  novel      we do not think that it can be said      with any  assurance that  the novel      is obscene merely because slang and      unconventional words have been used      in the  book in  which  there  have      been   emphasis    on    sex    and      description of  female  bodies  and      there   are   the   narrations   of      feelings, thoughts  and actions  in      vulgar language.  Some portions  of      the book  may appear  to be  vulgar      and readers of cultured and refined      taste   may    feel   shocked   and      disgusted.    Equally    in    some      portions,  the   words   used   and      description give  may not appear to      be in  proper taste. In some places      there may  have been  an exhibition      of bat  taste  leaving  it  to  the      readers of  experience and maturity      to draw the necessary inference but      certainly not  sufficient to  bring      home   to   the   adolescents   any      suggestion which  is  depraving  or      lascivious. We have to bear in mind      that the  author has  written  this      novel which came to be published in      the Srodiya Desh for all classes of      readers and  if cannot  be right to      insist  that  the  standard  should      always be  for the  writer  to  see      that  the  adolescent  may  not  be      brought into  contract with sex. If      a reference to sex by itself in any      novel   fit    to   be    read   by      adolescents, adolescents  will  not      be in  a position to read any novel      and "will  have to read books which      are purely religious"."      In The  State of Bihar vs. Shailabala Devi, 1952 S.C.R. Mahajan, J.  said that  a writing  had to be considered as a whole and  in a  fair  and  free  and  liberal  spirit,  not dwelling to  much upon  isolated passages  or upon  a strong word here  and there.  and  an  endeavour  had  to  be  made together the  general effect  which  the  whole  composition would have  not the  mind  of  the  public.  Mukherjee,  J., concurring with  Mahajan, J.,  observed that the writing had to be looked at as a whole without laying stress on isolated passages or  particular expressions  used here and there and that the  Court had  to take  unto consideration what effect

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the writing  was likely  to produce  on  the  minds  of  the readers for  whom the  publication was intended. account had also to be taken of the place, circumstances and occasion of the publication,  as a  clear appreciation of the background in which the words were used was of very great assistance in enabling the court to view them in their proper perspective.      In Sakal  Papers (P)  Ltd. and  Ors. vs.  The Union  of India, 1962  (3) S.C.R.  842, a Constitution Bench held that the only  restrictions which can be imposed on the rights of an individual under Article 19(1)(a) were those which clause (2)  of   Article  19  permitted  and  no  other.  This  was reiterated in Life Insurance Corporation of India vs. Proof. Manubhai d. Shah, 1992 (3) S.C.C. 637.      The  guidelines   aforementioned  have  been  carefully drawn. They  require the  authorities  concerned  with  film certification to  be responsive  to the values and standards of society  and  take  note  of  social  changes.  They  are required to  ensure that  ’artistic expression  and creative freedom are  not unduly curbed". The film must be "judged in its entirety from the point of view of its over-all impact". It must  also be judged in the  light of the period depicted and the  contemporary standards  of the  people to  whom  it relates, but  it  must  not  deprave  the  morality  of  the audience. Clause * requires that human sensibilities are not offended by  vulgarity, obscenity  or depravity, that scenes degrading or  denigrating woman  are not presented an scenes of sexual  violence against  women are  avoided, but if such scenes are  germane to  the theme,  they  be  reduced  to  a minimum and not particularised.      The guidelines are broad standards. They cannot be read as one  would read  a statue.  Within the  breath  of  their parameters the  certification authorities  have  discretion. The specific  sub-clauses of  clause  2  of  the  guidelines cannot overweigh  the sweep  of clauses 1 and 3 and, indeed, of sub-clause  (ix) of  clause (2).  Where the  theme is  of social relevance,  it must  be allowed  to prevail.  Such  a theme does  not offend  human sensibilities  nor  extol  the degradation or  denigration of women. It is to this end that sub-clause  (ix)  of  clause  2  permits  scenes  of  sexual violence against  women, reduced  to a  minimum and  without details, if  relevant to the theme. What minimum and lack of details  should  be  is  left  to  the  good  sense  of  the certification authorities,  to be determined in the light of the relevance of the social theme of the film.      ’Bandit Queen’  is the story of a village child exposed from an  early age  to the  brutality and   lust  of  man  . Married of  to a  man old  enough to  be her  father she  is beaten and  raped. The  village boys make advances which she repulses; Nut  the village panchayat finds her guilty of the enticement of  a village  by because he is of high caste and she has  to leave  the village.  She is arrested, and in the police station filthily abused. Those who stand bail for her dos to  satisfy their  lust. She  is  kidnapped  and  raped. during an  act of  brutality the rapist is shot dead and she find a ally in her rescuer. With his assistance she beats up her husband,  violently, her  rescuer is  shot dead  by  one whose advances  she has  spurned. She  is gang-raped  by the rescuer’s assailant  and his  accomplices and they humiliate her in  the light  of the  village: a hundred men stand in a circle around  the village well and was the humiliation, her being stripped  naked and  walked around the circle and then made to  draw water. And not one of the Villagers helps her. She burns  with anger, shame and the urge for vengeance. She gets it, and kills many Thakurs too.      It is  not a pretty story. There are no syrupy songs or

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pirouetting round  trees. It is the serious and sad story of a worm  turning: a  village born  female. becoming a dreaded dacoit. An  innocent  who  turns  into  a  vicious  criminal because lust  and brutality have affected her psyche so. The film levels an accusing finger at members of society who had tormented Phoolan  Devi and  driven  her to become a dreaded dacoit filled with the desire to revenge.      It is  in this light that the individual scenes have to be viewed.      First, the  scene where  she  is  humiliated,  stripped naked, paraded, made to draw water from the well, within the circle of  a hundred men. is intended by those who strip her to demean  her. The effect of so doing upon her could hardly have been  better conveyed  than by  explicitly showing  the scene. the  object of  doing so  was not  to  titillate  the cinema-goer’s lust  but to  arouse in  him sympathy  for the victim and  disgust for the perpetrators. The revulsion that the Tribunal  referred to  was not  at Phoolan Devi’s nudity but at  the  sadism  and  heartlessness  of  those  who  had stripped her  naked to  rob her  of every shared of dignity, Nakedness does  not always  arouse the  baser incident.  The reference by the Tribunal to the film ’Schindler’s List’ was apt. shown  frontally, being  led into the gas chambers of a Nazi concentration camp. Not only are they about to but they have been  stripped in  their  last  moments  of  the  basic dignity of human  beings. Tears are a likely reaction; pity, horror and  a fellow feeling of shame are certain, except in the pervert or to assuage the  susceptibilities of the over- sensitive. ’Bandit  Queen’ tells  a powerful human story and to that  story the  scene of  Phoolan Devi’s  enforced naked parade is  central. It  helps to  explain why  Phoolan  Devi became what  she die  : her  rage and  vendetta against  the society what had heaped indignities upon her.      The rape  scene also  helps to explain why Phoolan Devi become what  she did.  Rape is crude and its crudity is what the rapist’s bouncing bare posterior is meant to illustrate. Rape and  sex are not being glorified in the film. Quite the contrary. It  shows what  a terrible, and terrifying, effect rape and lust can have upon the victim. It focuses of on the trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist.      Too much  need not,  we think,  be made  of a few swear words the  like of  which can  be heard  every day  in every city, town  and village street. No adult would be tempted to use them because they are used in this film.      In sum,  we should  recognise the  message of a serious film and  apply this test to the individual scenes thereof : do they advance the message ? If they do they should be left alone, with  only the  caution of  an ’A" certificate. Adult Indian citizens  as a whole may be relied upon to comprehend intelligently the  message and  react  to  it,  not  to  the possible titillation of some particular scene.      A film  that illustrates  the consequences  of a social evil necessarily  must show that social evil. The guidelines must be  interpreted in  that light. No film that extols the social evil or encourages it is permissible, but a film that carries the  message that  the social evil is evil cannot be made impermissible  on the ground that it depicts the social evil.  At   the  same  time,  the  depiction  must  be  just sufficient for  the purpose  of the film. The drawing of the line is  best  left  to  the  sensibilities  of  the  expert Tribunal. the Tribunal is multi-member body. It si comprised of persons who gauge public reactions to film and, except in case of  stark breach  of guidelines, should be permitted to go about its task.

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    In the  present case,  apart from  the Chairman,  three members of the Tribunal were woman. It is hardly to supposed that three  women would  permit a  film  be  screened  which denigrates women,  insults India  womanhood or is obscene or pornographic. It  would  appear  from  its  order  that  the Tribunal took  the view  that it would do women some good to see the film.      We are  of the opinion that the Tribunal had viewed the film in  true perspective  and had,  in compliance  with the requirements of  the guidelines,  granted to the film an ’A’ certificate subject  to the  conditions it  stated. We think that the  High Court  ought not  to have entertained the 1st respondent’s  writ  petition  impugning  the  grant  of  the certificate based  as it  was  principally  upon  the  slurs allegedly cast  by the film on the Gujjar community. We find that the  judgment under appeal does not take due not of the theme of the film and the fact that it condemns rape and the degradation of  and violence  upon women  by  showing  their effect upon  a village  child, transforming  her to  a cruel dacoit obsessed  with wreaking vengeance upon a society that has caused  her so much psychological and physical hurt, and that  the   scenes  of  nudity  and  rape  and  the  use  of expletives, so  far as the Tribunal had permitted them, were in aid  of the  theme and intended not to arouse prurient or lascivious thoughts  but revulsion  against the perpetrators and pity for the victim.      The appeal  are allowed.  The judgment and order appeal is  set   aside.  The  1st  respondent’s  writ  petition  is dismissed. The  "a" certificate  issued to  the film "Bandit Queen" upon the conditions imposed by the Appellate Tribunal is restored.      The 1st  respondent shall  pay to  each  appellant  the costs of his appeal.