K.A. ABBAS versus THE UNION OF INDIA & ANR.

K.A.ABBAS

THE UNION OF INDIA & ANR.

September 24, 1970 .

:[M. HlDAYATULLAH, C.J., J. M. SHELAT, G. K. MITTER, C. A. VAIDIALINGAM AND A. N. RAY, JJ.]

Constitution of India Article 19(1) (") and (2)-Pre-censoT3hip of films-If unconstitutional-Cinematograph Act, 1952, s. 5-B-Provisions of"--Directions under s. 5-B(2)'-lf. vague and therefore unconstitutional.

The petitioo« made -e d<><::umentary film called "A Tale of Four ·Cities" which attempted to portray the contrast between the life of the .rich and the poor in the four principal cities of the country. The film included certain shots of the red light district in Bombay. Allhough the petitioner applied to the Board of Film Censors for 'U' Certificate for unrestricted exhibition of the film, he was granted certificate onlv for exhibitfon restricted to adults. On an appeal made to it by the.petitioner, the Central Government i8'ued direction on July 3, 1969 that 'U' Certificate may_ be granted provided certain specified cuts were· made in the film. The petiti.:iner thereafter field the present petition seeking declaration that the provisions of Part II of the Cinematograph Act, 1952, together with the rules prescribed by the Central Government on February 6, 1960 in the exercise of· its powers under s. 5-B of the Act were un-constitutional and void; he further prayed that the direction dated July 3, 1969 should be quashed. The petitioner claimed thaf his fundamental right of free speech and expression was denied by the order of the Central Government and that he was entitled to ·'U' Certificate for the film as of riaht.

At the hearing of the petition the Central Government jndicated it had decided to grant 'U' Certificate to the petitioner's film without the cuts previously ordered. The l'etitioner then applied for amendment of the petition so as to enable him. to challenge pre-censorship as offensive to freedom of speech and expression and alternatively the provisfons of the Act and the Rules, orders and directions under the Act as vague, arbitrary and indefinite. The Court allowe_d the amendment holding the petitioner was ri~t in contending that person who invests capital .in promoting or producmg film must h~ve ·clear guid~nce in adv~nce in the .mat!er of censorship of films even 1f the law of pre-censorship be not v10la!Ive of the fundamental right.

It was contended- inter alia on beloalf of _the Petitioner (a) that pl'e-censorship .jtself violated the right to freedom of speech and e.xpression; and (b) that even if it were legitimate restraint on the freedom, it. must be exercised on very definite principles 'which leave no room for arbitrary .action .

. HEW : (i) . Censorship of films including prior restraint is justified under the Constitution.

It has been almost universally recognised that the treatment of mo~ion pictures must be different from that of other forms of art and expression.

This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism). and its coordinatio of the <isual and aural senses. The art of the cameraman, with trick photography, vistavision and three dimensional representation,. has made the cinema picture mot'c true to life than even the theatre or indeed any other form of representa-tive art. The motion picture is able to stir up emotions more deeply than any othelr product of art. Its effect particularly on children and adolescents. is very great since their immaturity makes them more will-B ingly 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 reasonable classification. It is also for this reason that motion pictures must he regarded differently from other forms of speech and expression. person reading book or .other writing or hea'ring speech or viewing painting or sculpture is not so deeply stirred as by seeing motion picture. Therefore the treatment of the latter on different footing is also valid classification. [458 G]

(ii) Section 5-B 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 fdr public exhibition. It cannot be said that this Section has not indicated any guidance to the Central Government. The first sub-,ection states the principles and read with the second clause of the nineteenth article it is quite clearly indicated that the topics offilm s or their content should not offend certain matters there set down.

law cannot be declared void because it is opposed to the spirit sup-posed to ·pervade the Constitution but not expressed in words. However it c.tnnot be said as an absolute principle that no law will be considered bad for sheer vagueness. The real rule is that if 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 accdrdance with the intention of the legislatur~. 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 construc-tion and the persons applying it are in boundles. sea of uncertainty and the law prima feicie takes away guaranteed freedom, the law must be held to offend the Constitution. 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 dearest of cases. [470 G]Judging the directions, rules and regulations from this angle, it must be held that there are general principles regarding the films as whole and specific instances of what may be considered as offending the public interest as disclosed in the clause that follows the enunciation of the freedoms in Art. 19(1 )(a). The general principles which are stated in the directions given under s. 5-B(2) seek to do no more than restate the permissible restrictions as stated in cl. (2) of Art. I 9 and s. 5-B(I) of the Act. They cannot be said to be vague at all. Similarlv. the prin-ciples in s. IV of the directions in relation i:o children and voling persons are quite specific· and also salutary and no exception can be raken. It is only the instances which are given in Section I Clauses to which need to be considered. Read individually they give ample direction as to what may not be included. [471 BJ

It is. clear that expressions like 'seduction', 'immoral traffic in women', '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 ot the average men and more so of persons who are likely to be the. pwel for purposes of censorship. Any more definiteness is not only not expected but is not possible. [ 4 71 G]

Municipal Committee Amritsar and anr. v; The State of Rajasthan, A.l.R. 1960 S.C .. llOO; explained.

C/nude C. Cauall;v v. General Construction Co,, (1926) 70 L.Ed. 332; A. K. Gopa/an v. The State of Madras, [1950] S.C.R. 88 and State of Madhya Pr~desh and Anr. v. Baldeo Prasad, [1961] 1 S.C.R. 970 at 979; referred to.

(iii) real flaw in the scheme of the directions under s. 5-B(2) 'is total absence of any direction which would tend to preserve art and promote it. The artistic appeal olr presentation of an episode robs it of its vulgarity and harm and this appears to be completely forgotten. Artistic as well as inartistic presentation are treated alike and also what may be socially good and useful and what may not. Jn Ranjit D. Udesh1"s case this Court laid down certain principles on which the obscenity of book was to be considered with view to deciding whethelr the book should be allowed to circulate · or withdrawn. Those principles apply mutati.1 mutandis to films and also other areas besides obscenity. Althouah. it could not be held that the directions are defective in so far as they 10, directions to emphasize the importance of art to value judgment by the ~nsors need to be included, [471 HJ

U.S., U.K, and other case law considered.

ORIGINAL JUIUSDICTION : Writ Petiticm No. 491 ol 1969.

Petition under Art. 32 of the Constitution of India for enforce· _ ment of Fundame~tal Rights.

R. K. Garg, D. P. Slngh, S. C. Agrawa/a, R. K. lain, V. 1. Francis and -S. Chakravarti, for the petitioner.

Niren De, Attorney-Genera/, /agadish Swarup, Solicitor-Genera/, 1. M. Mukhi, R. N. Sachthey and B. D. Sharma, for the respondents.

The .Tadgment of the Court was delivered by

Hidayatilllah, C.J. This petition seeks 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 Govern-ment, February 6, 1960, in the purported exercise of' its powers under s. 5•B of the Act are unconstitutional and void. As cons~quence the petitioner asks for writ of mandamus or any other appropriate writ, direction or order quashing the direction contained in Jetter (Annexure X) dated July 3, 1969 for dele-tion of certain shots from documentary film entitled 'A ·Tale o(Four Cities', produced by him for unrestricted public exhibition.

The petitioner is journalist, play-wright and writer of short stories. He is also producer and i:Iirector of cinematograph films. He was member of the Enquiry Committee on Film Censorship (1968) and is 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.

The petitioner produced in 1968 documentary ~1:111 in 2 ree!s (running time 16 minutes) called Tale of Four Cities. In this film he purported to contrast the luxurious life o~ th~ rich in the four cities of Calcutta, Bombay, Madras and Delhi, with the squa· lor 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 song which the labourers sing while doing work and some back-ground music . and sounds for stage effect. The film, in motion sequences or still shots, shows contrasting scenes of palatial build· ings, hotels and factories-evidence of the prosperity of 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 thoso 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 11 fat and prosperous customer is lhown 1 ridlni rlc:kshaw which decrepit man pulls, sweating and pantlns hard. In contrasting, scene the same rlcklhaw puller 11 1hown sitting In the rickshaw, pulled by his former customer. This scene i1 the epitomisation of the theme of the film and on view are the statutes of the leaders of Indian Freedom Movement looking im· p9tently from their high pedesta!S in· front of palatial buildings, on the poverty of the masses. On the bouleverds the rich drive past -F, in limousines while the poor pull rickshaws or handcarts or stum-ble. along.

There is included also scanning shof of 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 ~ tlte brothels waiting at the doors or windows. Some of them wear abbreviated skirts showing bare legs up to the knees and sometimei; short way above them. This scene was perhaps shot· from moving car because the picture is unsteady on the screen and under exposed. Sometimes the inmates, becoming aware of the photo-grapher, quickly withdraw themselves. The whole scene barely lasts minute. Then we see one of the inmates shutting window and afterwards we see the hands of woman holdina some currencv notes and male hand plucking away most of them leaving only . . very few in the hands of the female. The two actors are not shown.

The suggestion in the first scene is that customer is being enter-tained behind closed shutters and in the next sequence that the amount received is being shared between the pimp and the prosti-tute, the former taking almost the whole of the money. The sequ-ence continues and for the first time the woman who shut the window is again seen. She sits at the dressing table, combs her hair, glances at two love-birds in cage and looks around the room as if it were cage. Then she goes behind 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.The petitioner applied to the Board of Film Censors for 'U' certificate for unrestricted exhibition of the film. He received letter (December 30, 1969) 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 tmres-trict~d public exhibition but was suitable for exhibition restricted to adults. He was given 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 (February 18, 1969) explaining the purpose of the films 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 in-forined by letter (February 26, 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 July 3, 1969, the Central Government decided to give 'U' certificate provided the following cuti. were made in the film :

. "Shorten t'he scene of woman in the red light district, deleting specially the shot showing the closing of the window by the lady, the suggestive shots of bare knees ~.the passing of the currency notes." Dir. IC(iii)(b)(c);

The mystery of the code numbers at the end was explained by letter on. July 23, 1969 to mean this :

"I. It is not desirable that film shall be certified as suitable for public exhibition, either unrestricted or res-tricted to adults which

C(iii) (b) deals with the relations between the sexes in such manner as to depict immoral traffic in women and soliciting, prostitution or procuration.

IV. It is undesirable that certificate for unrestricted public exhibition shall be granted in respect of film de-picting story, or containing incidents unsuitable for young persons."

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 'U' certificate for the film as of right.

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 'U' certificate to the film without the cuts previously ordered.

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 Vile Act, as vague, arbitrary and indefinite. We allowed the application for amendment, for the petitioner was right in contimding that person who invests his capital in promoting 9r producing' 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. .

When the matter came up for hearing the petitioner raised four

points : (a) that pre-censorship itself can.not be tolerated under the freedom oi speech and expression, ( b) that even if it were legiti-mate restraint on the fr~om, it must be exercised on very definite principles which leave no room for arbitrary action, (c) that there must be reasonable time-limit fixed for the decision of the autho-rities censoring the film; and ( d) that the appeal should lie to rourt or to an iindependent tribunal and not the Central Government.

The Solicitor-G~eral conceded (c) and (d) and stated that Government would set on foot legislati<1n 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

[1971] 2 S.C.R

we were satisfied that except in very rare. cases t.i.e tim~ tak~n could not be said to be umeasonable. We express our sat1sfact1on that the Central Government will cease to perform curial function& through one of its Secretaries in this se~sitive field inv~lying the fundamental right of speech and expression. Experts s1ttmg as Tribunal and deciding matters quasi-judicially inspire more con-fidence than Secretary .and therefore it is better that the appeal should lie to court or tribunal.

This brings us to the remaining two questions. We take up first for consideration : whether pre-censorship by itself offends the frwdom of speech and expression. Article l 9(l)(a) and (2) of the Constitution contain the guarantee of the right and the restraints that may be put upon that right by law to be made by Parlia-ment. 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 expression;

(2) Nothing in sub-clause (a) of dause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as s,1ch law imposes rea-sonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of tihe sovereignty and integrity of India, the security of the State, friend!}'. relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or· incitement to an offence."

The argnment is that the freedom is absolute and precensorship is not permissible under the Constitution. It is submit~ th.at pre-G censorship is inconsistent with the right guaranteed. NCl'IV 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 perview of the fihn. The other is to let the producer observe those .standards and make the ·infraction an offence and punish producer who does not keep within the standards. The Ntitlioner 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 reiI)f orces this argwn~t by contending that there are other ~orms .of speech an~ ei1;press1?11 besides the films and none of them 1s st1biect to any pnor restramt in the form of precensorship and claims equality of tnatment with such other forms. He claims tllat there is no justification for differential treatment. He contends next that even the standards laid down are unconstitutional for many reasons which we shall state in pro.ix:r place.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 few facts r!!_lating to censorship of films and how it works in India. The Government of India appointed Committee on March 28, 1968 to enquire into the working of the existing pro-cedures for certification of cinematograph films for public exhibi-tion 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 tlle law of censorship not only in India but also in foreign coEntries'.' 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 censorshiJt 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 : ein Handbuch of Berthold and: von Hartleib (1957) p. 215 quoted by Hunnings. In 1966 Mr. Raj Bahadur (who succeeded Mrs. Indira Gandhi as Minister for In-formation and Broadcasting) said that Government would 'continue liberal censorship' and was considering celiain expert opinion on the subjel:t. He also suggested to the film industry that it should formulate 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 Inpustry, February 25, 1966 also quoted by Hunnings at page 1 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 film-making is possible with the assistance of the National Association of Theatre Owners and Film Importers and Distributors of America. Having no such organisa-H tion for private censorship or even .private body like the British Board of Film Censors in England, the task must be done by Gov-ernment if censorship is at all to be imposed. Films began to be 2-436 Sup Cij71

exhibited in India at the turn of the last century and. film censorship took• birth in 1918 when 'the Cineniatograph Act, 1918 (2 of 1918) was passed. Two matters alone were !h~n dealt with : (a) th~ Jicen~­in<> of cinema houses, and (b) the certlfymg of fil~1is for publrc ex\11-bition. The. censors had wide discretion and no standards for their action . were indicated. Boards of Film Censors came into existence in the three Presidency towns and Rangoon. The Bombay BoaFd drew. up some institutions 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.

We do not wish to trace here the his~ory of the development of film censorship in India. That task has been" admirably perfor-med by the Khosla Committee. Legislation in the shape of amend-ments of the Act of 1918 and Production Code were the high-lights of the progress. In 19S2 fresh consolidating Act was passed and it is Act 37 of 19S2 (amended in 19S9 by Act 3 of I 9S9) and that is. the present statutory provision on the subject. It established Board of Film Censors and provided for Advi~ory Panels at Regional Centres. Every person desiring to exhibit any film has to apply for certificate and the· Board after examining the film or having the .film examined deals with it by :·

(a) sanctioning the film fo1 unrestricted public e~hi­

bition·

(b) sanctioning the film for public exhibition restrict-ed to adults;

( c) directing such excisions and modifications as it

thinks fit, before sanctio1,ing the film for unrestricted pub-lic exhibition or for public exhibition restricted to adults, as the case may be; or

(d) refusing to sanction the film for public exhibition.

The film producer is allowed to represent his views before action under (b) (c) and (d) is taken. The sanction under (a) is by grant-ing 'U' certificate and under (b) by an 'A' certificare and the certificates are valid for ten years.

The Act then lays down the principles for guidance and for appeals in ss. SB and SC respectively. The>e sections may be read here:

"SB. Principles for guidance in certifying films.

(1) film shall not be certified for public exhibition if, i1_1 the opinion of the authority competent to grant the certificate, the film or any part of it is against the i11terests of the security of the State, friendly relations with foreign

States, public order, decency or morality, or involves de-famation or contempt of court or 1s !Jkely to mcite the commission of any offence .

. (2) Subject to the provisions c.ontained in ~ub-~ection (1), the Central Government may 1~sue such dJrections. as it may think fit setting out the pnnctple~ which shall gu1~e the authority competent to gram cert~!i~~tes .• under th ts Act in sanctioning films for pubhc exl11b1t10n.

"SC. Appeals.

Any person applying for certificate in respec< of film who is aggrieved by any order of the Board-

(a) refusing to grant certificate; or

(b) granting only an "A" certificate; or

(c) directing the applicant to carry out any exci>ions or modifications;

may, within thirty days from the date of ~uch or~er, ap-D peal to the Central Government, and the Central Govern-ment may, after such inquiry into the matter as it con-siders necessary and after giv\ng the appdlant an oppor-tunity for reptesenting his views in the matter, make such order in relation thereto as it thinks fit."

By s. 6, the Central Government has reserved general revising power which may be exercised during the pendency of him before the Board and even after it is certified. under the latter part of this power the Central Government may cancel certificate already granted or change the 'U' certificate into an 'A' certificate or may suspend for 2 months the exhibition of any film.

The above is the general scheme of the legislation on the sub-F ject omitting allied matters in . which we are not interested in this. case. It will be noticed that s. 5B(l) really reproduces clause (2) of Art. 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 Governm~nt to state· the principles to guide the censoring authority, by issuing directions. In furtherance of this power the Central Government has given directions to the Board of Film Censors. Tiley are divid-ed 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 8C<'.tion contains matter~ which muy not be the subject of portrayal m films. We may quote the General Principles here : "I. No picture shall be certified for public exhibition which will lower the moral standards of those who see

Hence, the sympathy of ~he audien~c shall not Le thrown on the side of crime, wrong-doing, evil or sin.

2. Standards of life, having regard Iv 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."

The application of the General Principles is indicated in the four sections of the rules that follow so that uniform standard may be applied by the different regional panels and Boards. The first sec-tion deals with films which are considered unsuitable for public exhibition. This section is divided into clauses to F. Clause deals with the delineation of crime, with that of vice or immora-lity, with that of relations between sexes, with tlhe exhibition of human form, with the bringing into contempt of armed forces, or the public authorities entrusted with the administration of law and order and 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 pro-moting disorder, violence, breach of the law or disaffection or resistance to Government.

Clauses and are further explained by stating wh::.c is un-suitable and what is objectionable in relation to the topics under those clauses.

Section IT then enumerates subjects which may be objectionable in context in which either they amount to indecency, immorality, illegality or incitement to commit breach of the law. Section III then provides :

"It is not proposed that certification of film should be refused altogether, ·or that it should be certified as suitable for adult audiences only, where the deletion of part or parts, will render it suitable for unrestricted pub-lic exhibition or for exhibition restricted to adults, and such deletion is made, unless the film is such as to de-prave the majority of the audience and even excisions will not cure the defects."

Section IV deals with the protection of young persons and en-'\joins refusal of certificate for unrestricted public exhibition in respect of fi.hn depicting story or containing incidents unsuitable for young persons. Emphasis in this connect.ion is laid in parti-cular upon-,

(i) anything which may strike terror in young per-son, e.g., scenes depicting ghosts, brutality, mutilations, torture, cruelty, etc.;

(ii) anything tending to disrupt domestic harmony or

the confidence of child in its parents, e.g. scenes depic-B ting parents quarrelling violently, or one of them striking the other, or ~ne or both of them behaving immorally;

(iii) anything tending to make person of tender

years insensitive to cruelty to others or to animals."

In dealing with crime under section I clause A, the glorification or extenuation of crime, depicting the modus operandi of criminals, enlisting admiration or sympathy for smiminals, holding up to contempt the forces of_ law aga_inst crime etc. are indicated. as making the film unsuitable for exhibition. In Clause s!lni!ar directions are given with regard to vice and immoral acts and vici-ous and immoral persons. In Clause the unsuitability arises from lowering the sacredness of the institution of marriage and depicting rape, seduction and criminal assaults on women, immo-ril traffic in women, soliciting prostitution or procuration, illicit sexual relations, excessively passionate love scenes, indelicate sexual situations and scenes suggestive of immorality. In Clause !he 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, ven~real 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 ani-F mals, drunkenness or drinking not essentiill to the theme of the story, traffic and use of drugs, cliiss hatred, horrors of war, horror as predominant element, scenes likely to afford information to the enen_iy in ti~e of war, exploitation of tragic incidents of war, blackmail associated with immorality, intimate biological studies, crippled limbs or malformations, gross travesties of administration of justice and defamation of any living person.

. We ha~e covered al_most the entir~ range of instructfons. 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 offensi~eness the film is granted certificate. Certifiable films are classified ~ccording to ~ir suitability for adults or ·young people. This is the essential workmg of Censorship of motion pictures in our country.

The first question is whether the films need censorship at all'? Pre-censorship is but an aspect of censorship and bears the same relationship in quality to the material as censorship after the mo-tion picture .has had run. The only difference is one of the stage at which the State interposes its regulations between the indi-vidual and his freedom.· Beyond this there is no vital difference. That censorship is prevalent all the world over in some form or other and pre-censorship also plays part where motion pictures ar~ involved, shows the desirability of censorship in this field. The Khosla Committee has given description generally of the recrula-tions tor censorship (including pre-censorship) obtaining in ;ther countries and Hunning's book deals with these topics in detail s:p.arately 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 paper entitled 'Creative Expression' written by him. This is what he said:"But even if we believe that novelist or painter or musician should be free to write, paint and co.rri-pose music without the interference of the State machi-nery, 1 doubt if anyone will advocate the same freedom to be extended to the commercial exploitation of powerful medium of expression and entertainment like the cinema. One can imagine the results if an 1mbrid-le<l con1merical cinema is allowed to cater to the lowest co1,1mon denominator of popular taste, specially in country which, after two centuries of political and cul-tural domination, is still suffering from confusion and debasement of cultural values.

Freedom of expression cannot, and should not, be. interpreted as licence for the cinemagnates to make money by pandering to, and thereby propagating, shcddy and vulgar taste".

Further it has been almost universally, recognised that the treat-ment of 1notion pictures must be different from· that of other forms ·O.f art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its coordination of the visual and aural senses. The art of the cameraman, with trick photography, vistavision and three dimen-sionai representation thrown in, has made the cinema picture more true to life than even the theatre or indeed any other fonn of representative art. The motion picture is able to stir up emo-tions more deeply than any other product of art. Its effect parti-cularly on children and adolescents is very great since their im-maturity makes them more willingly suspend their disbelief than

mature men and wwnen. They also remember the action in the picture aIJd try to emulate or imjtate what they have seen. There-fore, classification of films into two categories of 'U' films and 'A' films is reasonable classification. It is also for this reason that motion picture must be regarded differently from other forms of speech and expression. person reading book or other writing or hearing speech or viewing painting or sculpture is not so deeply stirred as by seeing motion picture. Therefore the treat-ment of the latter on different footing is also valid classification.

The petitioner pressed for acceptance of the minority views expressed from time to time in the Suprerne Court of_the United States and it is, therefore, necessary to say few words about cen-c sorship of motion pictures in America and the impact of the First Amendment guaranteeing freedom of speech and expression in that country. The leading cases in the United States are really very few but they ar.e followed in very large number of per curiam decisions ~n which, while concurring with the earlier opinion of the Court, there is sometimes restatement with diffe-D rence. As early as 1914 in Mutual Film Corpn. v. Industrial Commission of Ohio([1]), Mr. Justice Mc Kenna, speaking for the full Court, said that legi~\ative power is not delegated unlawfully when board of censors is set up to examine and censor, as condition precedent to exhibition, motion picture films, to be publicly exhibited and displayed, with view to pas>ing and ap-proving only such of them as are in the judgment of the board, moral, educational or amusing and forbidding those that are not. Speaking of th~ 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 con-duct". The first notice of change came in 1925 in Git/ow v. New York('), when it was said that censorship had to pass the scrutiny of the First Amendment through the Fourteenth Amendment be-fore speech and expression could be. abridged by State laws. To· this, was added i~ 1919 the test of 'clear and present danger' pro-pounded by Justice Holmes as the only basis for curtailing the freedom of speech and expression, see Shenck v. U.S.(') and Justice Brandeis in Whitney v. California(') laid down three com-G ponents of the test :(a) There must be clear and present _danger that speech would produce 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.

ill0915l 236u-:-S.-2io-. -(2) 0925) 268 u. s. 65/, (ll (1919\ 249 U.S. 47. (4) (192'7) 274 U.S. 357.

(b) There must be 'present' or ~mmiaent' 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 prohibition on freedom of speech and expression for the police power of the State could not be exercised to take away the guaran-tee to avert relatively trivial harm to society.

In 1931 in Near v. Minnesota(!) im11lllnity of press from pre-censorship was denied but pre-censorship (as it is termed previous restraint) was not to be unlimited. major purpose of the First Amendment was to prevent prior restraint. The protectfon was not unlimited but put on the state the burden of showirg that the limitation challenged in the case was exceptional.

In 1941 the Court handed down in Chap/insky v. New Ham-pshire(") the opinion that free speech was not absolute at all times and in all circumstances, that there existl:d certain "well-defined . and narrowly limited classes of speech, the prevention and punish-ment of which had never been thought to raise any constitutional problem".

This state of affairs coniinued also in respect of motion pic-tures and the regulation of their public exhitition. Real attention was focu~sed on censorship after 19 51. The effect of World War II on American society was the rea.l cause because peoples notions of right and wrong from social point of view drastically altered. Added to this were the inroads made by Justices Douglas and .Black in Dennis v. U.S.([8 ]) iin the previously accepted propositions which according to them made the Firs~ Amendment no more than an admonition to Congress. In Beauharnois v. Illinois(') Justice Douglas claimed for the freedom of speech, preferred position because the provision was in absolute terms·, an opinion whieh has since not been shared by the majority of the Court.

· In 1951 there came the leading decision Burstyn v. Wilson("). This case firmly established that motion pictures were within t~e protection of the First Amendment through the Fourtee.9,t~. \Vlule recognising that there was no absolute freedom to exhibit every motion picture of every kind at all times and piac~s, and that con-stitutbnal protection even against prior restraint was not abso-lutely unlimited, limitation was said to be onTy in exceptiOnal

(I) (1931) 283 U.S. 697 (2) (1941) 315 U. S. 567. (3) (1951) 341 u. s. '494. (4) (19~2) 343 u. s. 250. (5) (1951) 343 U.S. 495.

cases, It however laid down that censorship on free speech and expression was ordinarily to be condemned but the pre~ise rul~ governing other methods of expression were not necessanly appli· cable.

The application of the 14th Ami:ndment 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 serious conflict in the accepted legal opinion. The Supreme Court has had to deal with numerous cases in which censorship was questioned.

The divergence of opinion 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 mot.ion picture there has been tendency to apply the 'void for vagueness' doctrine evolved under the due pro-cess clause. Thus regulations containing such words as 'obscene', 'indecent', 'immoral', 'prejudicial to the best interests of people', 'tending to corrupt morals', 'harmful' were considered vague cri-D teria. In Kingsley International Pictures Corpn. v. Regents([1]) where the film Lady Chatterley's Lover was in question, certain opinions were expressed. These opinions fonne<! the basis of the arguments on behalf of the petitioner. Justice Black considered· that the court was the worst of Board Censors because they pos-sessed no special expertise. Justice Frankfurter was of the opinion that 'legislation must not be so vague, the language so loose, as to· le'ave to those who have to apply it too wide discre.ion for sweep-ing within its condemnation what was permissible expression as well as what society might permissibly prohibit, always remember-ing that the widest scope for freedom was to be given to ~e ad-venturous and imaginative exercise of human spirit. ... ". ·Justice ,Dou~la~ conside,re4. prior restra~nt as unconstiutional. Acqording to him 1f movie violated vahd law, the exhibitor could be pro-secuted.

The on~y rest thaJ seemed to _prevail was that of obscenity as propunded m Roth v. United States('). In that three tests were· laid down:

(a) that the dominant theme taken as whole ap-peals t~ prurient interests according to the contemporary standards of the average man;

(b) that the motion picture is not saved by any re-deeming social value; and

(c) that it is patently offensive because it is opposed to conremporary standards. ·

(I) (1959) 360 U. S. 684. (2) (1957) 3S4 U. S. 476.

'The Hicklin test in Regina v. Hicklin(') was not accepted.

~ide by si~e procedural safeguards were also considered. The leading case 1s Freedmen v. Maryland(') where the court listed the fellowing requirements for a. valid film statute:

L The burden of proving that the film is obscene

rs:sts on the censor.

2. Final restraint (denial of licence) may only occur after judicial d.eterminatioh ofthe obscenity of the mate-rial.

3. The censor wiU either issue the license or go into court himself for restraining order,

4. There must be only 'brief period' between the

censor's first consideration of film and final judicial de-termination. (As summarized ,by Martin Shapiro Free-dom of Speech; The Supreme Court and Judicial Re-view).

These were further strengthened recently in Te"itel Film Corp. v. Cusak(") (a per curiam decision) by saying that non-criminal process which required the prior submission of film to censor avoided constitutional infirmity only if censorship took place under procedural safegµards. The censorship system should, therefore, have time-limit. The censor must either pass the film or so to court to restrain the showing of the film and the court also must give 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 d.~termination and this proved jatal.

The fight against ~ensorship was finally lost· i1n the Times Film ·Corporation v. Chicago(') but only by the slender majority of one Chief Justice Warren and Justices Black, Douglas and Brennan , dissen1Jed. 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' beq1use Government could not forbid the exhibition of 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 n~ver been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid.

(ll L. R. L. R. R. [186~] 3 Q. 3 Q. Q. B. 360.

(2) (1965) 380 U. S. 51.

(ll L. R. L. R. R. [186~] 3 Q. 3 Q. Q. B. (3) 1968 390 1). s. 139.

(4) (1961) 365 U.S. 43.

It is not for th!s Court to limit the State in its selec-tion of the remedy it deems most effective to cope with such problem, absent, of course, showing of unrea-sonable strictures on individual liberty resulting from its application in particular circumstances."

The argum~nt that exhibition of moving pictures ought in the first instance to be free and only criminal prosecution should be the mode of restraint when found offensive was rejected. The precen-sorship involved was .held to be no ground for striking down law of censorship. The minority was of the opinion that person producing film must know what he was to do or not to do. For, if he were not sure he might avoid even the permissible.

In Interstate Circuit Inc. v. Dallas(') certain expression were considered vague including 'crime delinquency' 'sexual promi-scuity' 'not suitable for young perions'. '.According to the court the statute must state narrowly drawn, reasonably definite, stan-dards 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 discretion should not be left to the censors.

Meanwhile in Jacobellis v. Ohio(') it was held that laws could legitimately aim specifically at preventing distribution of o~6:; tionable material to children and thus it approved of the sy,s of. age-classification. The Tllterstate Circuit Tnc. v. Dallas( [1]) and Ginsberg v. New York(') sat the seal on validity of age classifica-F tion as .constitutionally valid.

There are twQ cases which seem to lie outside the main-stream. Recently in Stanley v. Georgia(') the Court seems to have gone back on the Roth case (supra) and held that the right to receive information and ideas, regardless of their social worth, is also fundamenttil to society. Another exception can only be under-~<>?d on the basis. of !he recognillion of the needs of permissi.ve SOCiety. · Thus M1shkm v,. New York('} removes the test of tbe ave~age person by saying that if the material is de~igned for de'V!ant sexual group, the material can only be. censored· if taken as whole, it appeals to the purien~ interest in sex of the members of that group. This is known as the selective-audience obscenity test and even children are special class. See Ginsberg v. New

(I) (1968) 390 U.S. 616. <2l (1964) 378 U. S. 184. (3) (1968) 390 U.S. 629. !4) (1969) 3~4 u. S. 557.

York (1) . On the whole, however, there is in this Ia~t case return to the Hicklin test in that obscenity is considered even from isolated passages.

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 setded that motion picture is considered 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. (2) is not now accepted. It is also 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 subse-quent restraints. The censorship should be based on precise state" ment 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 is no~ to depend on whether the average man would have con-·sidered the film suitable. Procedural safeguards as laid down in the Freedman case([3 ]) must also be observed. The film can only be censored if it offends in·the manner set out in Roth's case.

The petitioner put before us all these dicta for our acceptance and added to them the rejection of censorship, par(icularly prior cen~orship by Chief Justice Warren and Justices Black and Dou-. glas. He pointed out that in England too the censorship of the theatre has been abolished by the Theatres Act 1968 (1968 C. 54) and submittled that this is the trend in advanced countries. He also brought lo our notice the provisions of the Obscene Pub-lications Act, 1959 (7 & 8 Eliz. 2 C. 66), where the test of ob-scenity is stated thus :

"!. 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 is, if taken as whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances,. t0 read, see or hear the matter contained of embodied in it.

and the defence of public good is stated thus :

"4. Defence of public good.

(0 (!968) 390 U. s. 629.

(2) (1915) 236 U.S. 230.

(3) ('965) 380 us. 51.

( 1 ) person shall not be convicted of an offence against section two of this Act, :.nd an or~er for ~or­feiture shall not be made under the foregomg secl!on .• if it is proved that publication of the article in question is justified as being fot the public good on the ground that ir, is in the interests 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 admitt1ed in any proceedings under this Act either to establish or to negative the said ground."

He contended that we must follow the above provisions.

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, '!lo book could be issued without the sanction of Government. The Star Chamber tried several cases of censorship ~d it even con-tinued 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 Dongles. Free-dom of speech came to be recognised by slow 11tafe11 and it was Blackstone who wrote in his Commentaries (Book V p. 1'17)-"The liberty of the Press is indeed essential r.<> the nature of free State, but this consists in laying no pre-r vious restraints upon publications."

But censorship of theatres continued and no theatre could be licensed or play performed without the sanction of the Lord Chamberlain. By the Theatres Act 1843 the Lord Chamberlain was given statutory control over the th~es. He could forbid the production of play for the preservation of good manners, de-G a>rum or the public peace. There was ordinarily no censorsbip of the press in England. When cinematograph came infio being the Cinematograph Act 1909 was passed to control cinemas. It has now been amended by the Cinematograph Act of 1952. Res-trictions 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'Connor in 1918. These directions, as we said ear-lier, have had gr~at 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) bas given examples of the cuts ordered and also list of films which were found un-suitable. The Board has never worked to Code although the directions are followed. By 1950 three general principles were evolved. They are:

J. Was the story, incident or dialogue likely to im-pair the moral standards of die public by extenuating vice or crime or depreciating moral standards ?

2. Was it likely to give offence to reasonably min-ded cinema audiences ?

3. What effect would it have on the minds of children ?

We have digressed into the practice of the United States and the United Kingdom J1ecause anafogies from these two countries were mainly relied upon by the petitioner and they serve as very appropriate back-groµnd from which to begin discussion on the question of censorship and the extent to which· it may be carried.

To begin with ous fundamental law allows freedom of speech and expression to be restricted as clause (2) itself shows. It was observed in Ra.njit D. Udeshi v. 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 restrictlons which may be thought necessary in the interest of the general pub-lic and one such is the interest of public decency and morality. Section 292, Indian Penal Code, manifestly embodies such restriction because the law against ob-. scenity, of course, correctly understood and applied, seeks no more than to promote public decency and n1ora-lity".

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. · ScB of the Cinematograph Act doe&

(I) (1965) I S.C.R. 65.

not reproduce the full effect of the second clause of Art. 19 need. not detain us. It appears that the draftsman used copy of the ConstWution as it was before the First Amendment and fell into the-error of copying the obsolete clause. That, jiowever, 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 wha~ the 'Constitution has .said on the subject. The word 'rea-sonable' is not to be found in s. 5-B but it cannot mean that the restrictions can be unreasonable. No only the sense of the matter but the existence or the constitutional provision in par! materia · must have due share and reading the previsions of the Constitu-tion we can approach the problem without having to adopt too liberal construction of s. 5-B.

It, therefore, follows that the American and the British pre-cedents cannot be decisive and certainly not the minority view ex-pressed 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 stron.gest proponent of the freedom (Justice Douglas) himself re-cognised i1n the Kingsle,v case that there must be vital difference in appro11ch. This is what he said :

"If we had provision in our Consti~ution•for 'rea-

sonable' regulation of the press such as India has includ-ed in hers, there would be room for argument that cen-sorship in the interests of morality would .be permissible".

In spite of the absence of such provision Judges in America have tried to read the words 'reasonable restrictions' into tlhe First Amendment and thus to m.ake the rights it grants subject to rea-r sonable regulation. The American cases in their majority opinions, therefore, clearly suppor~ case of censorship.

It would appear from this that censorship of films, their classi- ·

fication according to age groups and their suitability for unres-tricted exhibition with or without excisions is regarded as valid exercise of power in the intereslli of public morality, decency etc. This is not to be construed as necessarily offending the freedom of speech and e.xpression. 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! Amend-ment. This is because social interest of the people override indi-vidual freedom, Whether we regard the state as the paren patriae or as. guardian and .promoter of general welfare, we have to con--cede, that these restraints on li~rty may be justified by their abso-lute necessity· and clea~ purpose. Social interests take in not only

.the interests of the community but also individual interests which .cannot be ignored. balance has therefore to be struck between .the rival claims by reconciling them. The l~rger interests of the community require the formulation of policies and regu1ations to .combat dishonesty, corru~tion, 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 Ahrens said the question calls for .good philosophical campass .and strict logical methods.

With this preliminary discu_§sion we say that censorship in India (and precensorship is not different in quality) has full just,i-fication 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 different content and ·impor-tance. The censorship imposed on the making and exhibition of films is in the interests Qf society. If the regulations venture into something which goes beyond this legitimate opening to restric-.tions, they can be questioned on th.e ground that legitimate ,power is being abused. We hold, therefore, that censorship of films including prior restraint is justified under our Consti,tution.

This brings us to the riext questions : 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 direc-tions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under the Act in sanc-tioning films for public exhibition.

The first question raised before us is that the legislature has not indicated any guidence to the Central Govemment. We do not think that this is fair reading of the section as whole. The . first sub-section states the priµciples and read . with the second clause of the nineteenth article it is quite clearly indicated that th~ topics of films or their ~ontent should not offend certain matter~ there set down. The Central Government in dealing with''the pro-blem of censorship will have to bear in mind those principles and, they will be the philosophical compass and tihe logical methods of Ahrens. Of course, Parliament can adopt the directions and put them in schedule to the .l\ct (and that may still be done), it cannot be said that there is any. delegatlion of ltigislative function. If Parliament made 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 moment be argued that this is in-·sufficient to take away the right of locomotion. Of course, every-thing may be done by legislation but it is not necessary to do so

Jf the policy underlying regulations is clearly indicated. The Cen-tral Government's regulations are there for consideration in the light of the guaranteed freedom and if they offend substantially against that f.reeliom, they may be struck down. But as they stand they cannot be challeneged On the ground that any recondite theory of Jaw making or critical approach to the separation of powers is infringed. We are accordingly of the orinion that s. 5-B (2) cannot be challenged on !(his ground.

This brings us to the manner of the exercise of . control and r~striction 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 art. 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([1 ]) •. In that case Division Bench of this Court Jays down that an Indian Act cannot be declared invalid O!J the ground that it violates the due process clause or that it is vague. Shah J, speaking for the Division Bench, observes :

" .... the rule that an Act of competent legislature may be 'struck· down' by the courts on the ground of vagueness is alien to our constitutional system. The Legislat'Ure of the State of Punjab was competent to ena<:t legislation in respect of 'fairs', vide Entry 28 of List II of the 7th Schedule to the Constitution. 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 ill of the Constitution or is inconsistent with any constituti0nal provision, but not on the ground that it is vague."

The learned Judge refers to the practice of the Supreme Court of the United State in Claude c. Caual/y · v. 'General Construction · Co.(') where it was observed : ·

"A statute which either forbids or requires the doing of an aet in terms so vague that men of common intelli-G gence must necessarily guess at its meaning and ditl'er as to its application violates the first essential of due pro-cess of Jaw."

The learned Judge observes in relation to this as follows :

"But the rule enunciated by the American Courts has no appJlcation under our constitutional set up. This rule is regarded as an e&Sential of the 'due process

(2) (1926) 70 L. Ed. 332.

(I) A.I.R. 1960 S. C. 1100.

3-436SupC1/7l

clause' incorporated in the American Constitution by the 5th and 14th Amendments. The courts in India h~e no authority to dec~are statute invalid on the ground that it violates 'the due process of Jaw'. Under our Con-stitution, the test of due precess of Jaw cannot be applied to the statutes enacted by the Parliament or the Stare Legislature".

Relying on the observations of Kania C.J. in A. K. Go pa/an v. The State of Madras(1) to the effect that 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 act there considered, are sufficiently clear and there is no vagueness.

These observations which are clearly obiter are apt to be too generally applied and need to be explained. While it is true that the prindples 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 Jaw affecting .fundamental rights may be so considered. very partinent example is to be found in State of Madhya Pradesh and Anr. v. Baldeo Prasad([2 ]) where the Central Provinces and Berar Goondas Act 1946 was declared void for uncertainty. The con-dition for the application of ss. 4 and 4A was that the person sought to be proceeded against must be goonda but the definition of goonda in the Act indicated no test~ for deciding which person fell within the definition. The provisions were therefore held to be uncertain and vague.

The real rule is that if law is vague or appears to be so, the court must try to construe it, as far as may be, and language per-mitting, the construction ·sought to l;>e. placed on it, mllst 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 legi~lature and advances the purpqse of legislation, is to ~ preferred. Where however the law admits of no such construction and the persons applying it are in bound-less sea of uncertainty and the law prima facie takes away gua-ranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not applica-tion of the doctrine of due process. The invalidity arises from the

(1) [1950] S. C. R. 88.

probability of the misuse of the law to the deteriment of the indi-vidual. 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.

Judging the directions from thi~ angle, we find that there are general principles regarding the films as . whole and specific in-stances of what lll!IY be considered as o!Iendmg the public interest as disclosed in the clause-that follows the enunication of the free-doms in Art. 19(1)(a). ·The general prmciples which 1re stared in the directions seek to do no more than restate the permissible restrictions as stated in e<l. (2) of Art. 19 ands. 5-B(l) of t)le 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 exceJ?tion can be taken. It is only t.'ie instances which are given in ~hon I Clauses to· · 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 alrea~y noti~ed by· us that these· expressions· are vague. We do not agree. The words used are within the common umterstanding of the average man. For exa•· mple the word 'rape' im{icate what the word is, ordinarily, under-stood to mean. · It is hardly to be expected or necessary t'hat 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 tb deal with each tcipic for that is really profitless ven-ture. . Fundamental rights are to be judged in broadway. It is: not question of semantics but of the substance of the matter. It is significant that Justice Douglas who is in favour of very liberal and absolute applicaqon of the First Amendment in 1 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 expres-sions like ·~uction', 'immoral traffic in women', 'soliciting, pros-titution or procuration', 'indelicate sexual situation' and 'scenes suggestive Qf immorality', 'traffic and use of drugs', 'class hatred', 'blackmail associated with immorality' are within the understand-ing of the average men and more so of persons who ate likely to be the panel for purposes of censorship. Any more definiteness is not only not expected but is not possible. Indeed if . we were required to draw up list we would also follow the same genera! pattern.

But what ap~ to us to be the real flaw in the scheme of the directions is total absence of any direction which would tend to preserve art and prolijote it. The artistic appeal or presentation of an episode robs it of its vulgarity and harm llI1d this appears

to be completely forgotten. Artistic as well as inartistic presenta-tions are treated alike and also what may be socially good and useful and what may not. In Ranjit D. Udeshi's case(1) this court laid down certain p.rinciples on which the obscenity of book was to be considered with view to deciding whether the book should be allowed to circulate or withdrawn. Those princirles apply mutatis mutandis to films and also other areas besides ob-seenity. The Khosla Committee also. adopted them and recom-mended them for the guidance of the film censors. We may re-produce them here as summarized by the Khosla Committee :

"The Supreme Court laid down the following prin-ciples which must be carefully st'udied and applied by our censors when they have to deal with film said to be objectionable on the ground of indecency or immo-rality :-

(!) 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 perform.ed 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 sett-ing of the whole work would of course be neces-sary but the obscene matter must 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 liands the book is likely to fall.

('Yi The interests of coptemporary soci~ty and partf-cularly the influence of the book etc., on it must not be overlooked.

( 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 in-significant that it can have no effect and can be overlooked.

(7) Treating .with sex in manner otfensive to public decency or morality which ru:e the words of our

Fundamental Law judged by our national stan-dards and considered likely to pender to lascivi-ous, prurient or sexUllllY precocious minds must determine the result.

t8) When there is propagation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour of free s~h and expression. Thus books on medical science with intimate illustrations and photograp~ though in sense immodest, are not to be considered obscene, but the same illu-strations an~ photographs collected in book froni without the medical text would certainly be considered to be obscene.

(9) Obscenity without p1Jp0nderating sqcial pur-pose or profit cannot have the constitutional protection 9f free s~h or expression. Obs-cenity is treating with sex in manner appeal-ing to the carnal side of human nature or having that t~ndency. Such treating with sex is offen-sive to modesty and decency.

(10) Knowledge is not part of the guilty act. The offender's knowledge of the obscenity of the book is not required under the lavv and it is case of strict liability."

' Application of these principles does not.seek to whittle down the fuilClamental 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 general character but it must admit of just ap-plication from case to case by indicating line of de-marcation not necessarily sharp but sufficiently distiact to distinguish between that which is obscene and that which is not ........ ".

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 men-tioned in the d4'ections may figure in film$ subject either to their artistic merit or their social v~ue over-weighing. their offending characl'er. The ~ of the censor is extremely delicate and his duties cannot be the subject of an ~xhaustive set of commands

· established by prior ratiocination. But direction is necessary to him so that he does· not sweep within the terms of the direcfions 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 level where the protection of the least capable and the most depraved amongst us detemiines what the morally healthy cannot view or read. The standards that we set for our censors must make substantial allowance in favour of freedom thus leaving vast area for creative art to interpret life and society with some of its ·foibles along with what is go¢, We must i!Ot 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 comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarrassed or disgusted at naked portrayal of life without the redeeming touch · of art or genius or social value. If the depraved bet.ns to see in . thes~ things more than what an average person would, in much the same way, as it is wrongly saifi, Frenchman sees woman's legs in everything, it cannot be helpeQ.. ln our scheme of things ideas having redeeming ~ocial or· artistic value must also have im-portance and protection for their groWth. Sex and obscenity are nat always synonymous and it· is wrong to classify sex as essen-tially obscene or even indecent or immoral. It should be our con-cern, however, to .prevent the use of sex designed to play com-merical role by making its own· appeal. This draws in the censors scissors. Thus audiences in India can be exgected to view with equanimity the story of Oedipus son of Latius who committed .patricide and incest wit!J his mother. When the seer Tiresias ex~ posed 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 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 letter of the directions the· film cannot be shown. Similarly, scenes \lepicting leprosy as theme in story or in al docume\lltary are not necessarily outside the protection. If that were so Verrier Elwyn's Phulmat of the Hills or the srune episode in Henryson's Testament of Cresseid (from where Verrier Elwyn borrowed the idea) would never see the light of the day. Again Cf!mage and bloodshed may have historical value and the depict'ion of such scenes as the sack of Delhi by Nadirshah may be permissible, if. handled delicately and as part of ari. artistic portrayal of the con-frontation with Mohammad Shah Rangi!a. If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view historical theme without tflle his-tory ? Rape in all i!S nakedness may be objectionable but Vol~

taire's Candide would be meaning1ess without Cunegonde's epi-sode with the soldier and the story of Lucrece could never be depicted on the screen.

Therefore it is not the elements of rape, leprosy, sexual im-morality which should attract the censor's scissors but how the them.e is handled by the producer. It must, however, be remem-bered that the cinell1lltQgraph is powerful medium and its appeal is different. The horrors of war as depicted in the famous etch-ings of Goya do not).orrify one so much as the same scenes ren-dered in colour and wtth sound and movement, would do. We ;may view documentary on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra but documen-tary from them as practical sexual guide would be abhorrent.

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 compreheQsive 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 Parliam.ent has not legislated enough, nor has the Central Government filled in the gap. Neither has sepa-rated the artistic and the sociably valuable from that which is de-liberately indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the freedom of the indivi-dual. They have thought more of the depraved and less of the ordinary moral man. In their desire to keep films from the abnor-mal, they have .... excluded the moral. They have attempted to bring down the public motion picture to the level of home movies.

It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi's case(1) certain considerations for the gui-dance of censorship of books. We think t'hat those guides work I: as well here. ·Although we are not inclined to hold that tlie direc-tions are defective in so far as they go, we are of opinion that directions to emphasize the importance of art to value judgment by the censors need to be included. Whether this is done by Par-liment 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 here are followed, the system of censorship with the procedural safeguards accepted by the Solicitor General will make censorship accord with our fundamental law.

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 circumstanceG we make no order about costs.

R.K.P.S.

Petition allowed.

(l} (1965] I $. C. R. 65