article 19 part 3

In K.A. Abbas v. Union of India, [1971] 2 SCR 446 a Constitution Bench of this court considered important ques- tions relating to pre-censorship of cinematograph films in relation to the fundamental right of freedom of speech and expression. K.A. Abbas, a noted Indian journalist and film producer produced a short documentary film called "A tale of Four Cities". In that film he sought to contrast the self indulgent life of the rich in Metropolitan cities with the squalor and destitution of labouring masses who helped to construct the imposing buildings and complexes utilised by the rich. The film also goes on to explore the theme of exploitation of women by men, dealing in particular prosti- tution. Abbas applied to the Board of Film Censors for a 'U' certificate, permitting unrestricted exhibition of the film. He was informed by the regional officer that the Examining Committee had provisionally concluded that the film should be restricted to adults. The Revising Committee concurred in this result, whereupon Abbas, after exchanging correspond- ence with the Board, appealed to the Central Government. The Government decided to grant 'U' certificate provided that the scenes in the red light district were deleted from the film. Abbas challenged the action of the Board mainly on four issues out of which two did not survive when the Solic- itor General stated before the Court that the Government would set on foot legislation to effectuate the policies at the earliest possible date. The two issues which survived thereupon were: (a) that pre-censorship itself cannot be tolerated under the freedom of speech and expression; (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action.

With regard to the power of pre-censorship, Hidayatul- lah, C.J., observed (at 473-74):

"The task of the censor is extremely delicate ..... The standards that we set out for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and for ever from human thought and must give scope for talent to put them before society. The requirements of art and litera- ture include within themselves a comprehensive, view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius of social value. If the depraved begins to see in these things more than what an average person would, in much the same way as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have impor- tance and protection for their growth." Recently, Sabyasachi Mukharji, J., in Ramesh v. Union of India, [1988] 1 SCC 868 which is popularly called "TAMAS" case laid down the standard of judging the effect of the words or expression used in the movie. The learned Judge quoting with approval of the observation of Vivian Bose, J., as he then was, in the Nagpur High Court in the case of Bhagwati Charun Shukla v. Provincial Govern- ment, AIR 1947 Nag 1 (at 676):

"That the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating. This in our opinion is the correct approach in judging the effect of exhibition of a film or of reading a Book. It is the standard of ordinary reasona- ble man or as they say in English law, "the man on the top of a Clampham omnibus. "

The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and pru- dence and not .that of an out of the ordinary or hypersensi- tive man. We, however, wish to add a word more. The Censors Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country. The moral values in particular, should not be allowed to be sacrificed in the guise of social change or cultural assimi-lation. Our country has had the distinction of giving birth to a galaxy of great sages and thinkers. The great thinkers and sages through their life and conduct provided principles for people to follow the path of fight conduct. There have been continuous efforts at rediscovery and reiteration of those principles. Adi-guru Shankaracharya, Ramanujacharya, Madhwacharya, Chaitanya Maha Prabhu, Swami Ram Krishan Paramhansa, Guru Nanak Sant Kabir and Mahatma Gandhi, have all enlightened our path. If one prefers to go yet further back, he will find "TIRUKKURAL" the ethical code from Tiruv- alluvar teaching which is "a general human morality and wisdom." Besides, we have the concept of "Dharam" (right- eousness in every respect) a unique contribution of Indian civilization to humanity of the world. These are the bedrock of our civilization and should not be allowed to be shaken by unethical standards. We do not, however, mean that the Censors should have an orthodox or conservative outlook. Far from it, they must be responsive to social change and they must go with the current climate. All we wish to state is that the Censors may display more sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of those who see it. Krishna Iyer, J., in Rajkapoor v. Laxman, [1980] 2 SCR 512 in words meaningful expressed