# K.A.ABBAS v. THE UNION OF INDIA & ANR

- **Citation:** [1971] 2 S.C.R. 446
- **Court:** Supreme Court of India
- **Decided:** 1970-09-24
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-a-abbas-v-the-union-of-india-anr-5140
- **Pages:** 30

## Headnote

446
K.A.ABBAS
v.
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 a 'U' Certificate for
unrestricted exhibition of the film, he was granted a certificate onlv for
exhibitfon restricted to adults. On an appeal made to it by the.petitioner,
the Central Government i8'ued a direction on July 3, 1969 that a 'U'
Certificate may_ be granted provided certain specified cuts were· made in
the film. The petiti.:iner thereafter field the present petition seeking a
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 unconstitutional 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 a ·'U' Certificate for the film
as of riaht.
At the hearing of the petition the Central Government jndicated it had
decided to grant a '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 a person who invests capital .in promoting or
producmg a 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'ecensorship .jtself violated the right to freedom of speech and e.xpression;
and (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 .
. 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.
A
B
c
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H
A
B
c
D
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F
G
H
II:. A. ABBAS v. UNION (Hltfayatullah, C.J.)
447
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 representative 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 willingly 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 a reasonable classification. It is also for this
reason that motion pictures must he regarded differently from other forms
of speech and expression.
A person reading a book or .other w

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446
K.A.ABBAS
v.
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 a 'U' Certificate for
unrestricted exhibition of the film, he was granted a certificate onlv for
exhibitfon restricted to adults. On an appeal made to it by the.petitioner,
the Central Government i8'ued a direction on July 3, 1969 that a 'U'
Certificate may_ be granted provided certain specified cuts were· made in
the film. The petiti.:iner thereafter field the present petition seeking a
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 unconstitutional 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 a ·'U' Certificate for the film
as of riaht.
At the hearing of the petition the Central Government jndicated it had
decided to grant a '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 a person who invests capital .in promoting or
producmg a 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'ecensorship .jtself violated the right to freedom of speech and e.xpression;
and (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 .
. 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.
A
B
c
D
E
E
G
H
A
B
c
D
E
F
G
H
II:. A. ABBAS v. UNION (Hltfayatullah, C.J.)
447
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 representative 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 willingly 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 a reasonable classification. It is also for this
reason that motion pictures must he regarded differently from other forms
of speech and expression.
A person reading a book or .other writing or
hea'ring a speech or viewing a painting or sculpture is not so deeply stirred
as by seeing a motion picture.
Therefore the treatment of the latter on
a different footing is also a 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.
A law cannot be declared void because it is opposed to the spirit supposed 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 a 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 construction and the persons applying it are in a boundles. sea of uncertainty and
the law prima feicie takes away a 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 a 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 principles 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 A to D which
need to be considered.
Read individually they give ample direction as
to what may not be included. [471 BJ
448
SUPREME COURT REPORTS
[1971 j 2 S.C.R
It is. clear that expressions like 'seduction', 'immoral traffic in women',
A
'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,
B
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) A real flaw in the scheme of the directions under s. 5-B(2) 'is
a 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
c
case this Court laid down certain principles on which the obscenity of
a book was to be considered with a view to deciding whethelr the book
should be allowed to circulate · or withdrawn.
Those principles apply
D
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 a 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, SolicitorGenera/, 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 a 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 Government, February 6, 1960, in the purported exercise of' its powers
under s. 5•B of the Act are unconstitutional and void.
As a
cons~quence the petitioner asks for a writ of mandamus or any
other appropriate writ, direction or order quashing the direction
contained in a Jetter (Annexure X) dated July 3, 1969 for deletion of certain shots from a documentary film entitled 'A ·Tale
o(Four Cities', produced by him for unrestricted public exhibition.
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A
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K. A. ABBAS v. UNION (Htdayatullah, C.l.)
449
The petitioner is a journalist, play-wright and writer of short
stories. He is also a producer and i:Iirector of cinematograph films.
He was a member of the Enquiry Committee on Film Censorship
(1968) and is a 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 a documentary ~1:111 in 2 ree!s
(running time 16 minutes) called a 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
C
labour help to build beautiful cities, factories and other industrial
complexes. The film is in black and white and is silent except for
a song which the labourers sing while doing work and some background 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 a few, and
D
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 a rlc:kshaw which a decrepit man pulls, sweating and pantlns
hard. In a 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 stumble. along.
There is included also a scanning shof of a 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;
a short way above them.
This scene was perhaps shot· from a
moving car because the picture is unsteady on the screen and under
exposed.
Sometimes the inmates, becoming aware of the photographer, quickly withdraw themselves.
The whole scene barely
H
lasts a minute. Then we see one of the inmates shutting a window
and afterwards we see the hands of a woman holdina some currencv
.
e
.
notes and a male hand plucking away most of them leaving only a
very few in the hands of the female. The two actors are not shown.
450
SUPREME COURT REPORTS
[1971 J 2 S.C.R
The suggestion in the first scene is that a customer is being entertained behind closed shutters and in the next sequence that the
amount received is being shared between the pimp and the prostitute, the former taking almost the whole of the money. The sequence 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 a cage and looks around the room
as if it were a cage. Then she goes behind a 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 a 'U'
certificate for unrestricted exhibition of the film.
He received a
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 tmrestrict~d public exhibition but was suitable for exhibition restricted
to adults. He was given a 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 inforined by a 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 a '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 a
letter on. July 23, 1969 to mean this :
"I. It is not desirable that a film shall be certified as
suitable for public exhibition, either unrestricted or restricted to adults which
A
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K. A. ABBAS v. UNION (Hidayatullt!h, C./.}
45 l
C(iii) (b)
deals with the relations
between the
sexes in such a manner as to depict immoral traffic in
women and soliciting, prostitution or procuration.
IV. It is undesirable that a certificate for unrestricted
public exhibition shall be granted in respect of a film depicting a 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 a '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 a '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 a person
who invests his capital in promoting 9r producing' a 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 a legitimate 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 a reasonable time-limit fixed for the decision of the authorities censoring the film; and ( d) that the appeal should lie to a
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
452
SUPREME COURT REPORTS
[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 a
Tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary .and therefore it is better that the appeal
should lie to a court or tribunal.
A
B
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
C
that may be put upon that right by a law to be made by Parliament. 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 reasonable 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 precensorship 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 a perview of the fihn.
The
other is to let the producer observe those .standards and make the
·infraction an offence and punish a producer who does not keep
within the standards. The Ntitlioner claims that the former offends
D
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K. A. ABBA$ v. UNION (Hidayatullah, C.J.)
453
A
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
B
such other forms.
He claims tllat there is no justification for a
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
C
and before we say anything about the arguments, it is necessary to
set down a few facts r!!_lating to censorship of films and how it works
in India.
The Government of India appointed a Committee on
March 28, 1968 to enquire into the working of the existing procedures for certification of cinematograph films for public exhibition in India and allied matters, under the Chairmanship of Mr.
D
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
E
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 Information and Broadcasting) said that Government would 'continue
a liberal censorship' and was considering celiain expert opinion on
F
the subjel:t. He also suggested to the film industry that it should
formulate a 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 g of his book. This suggestion came
to nothing for obvious reasons. Film industry in India is not even
G
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 organisaH
tion for private censorship or even a .private body like the British
Board of Film Censors in England, the task must be done by Government if censorship is at all to be imposed. Films began to be
2-436 Sup Cij71
454
SUPREME COURT REPORTS
( [971] 2 $.C.R.
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\11bition. The. censors had a 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 performed by the Khosla Committee. Legislation in the shape of amendments of the Act of 1918 and a Production Code were the highlights of the progress. In 19S2 a 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 a Board of Film Censors and provided for Advi~ory
Panels at Regional Centres. Every person desiring to exhibit any
film has to apply for a 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 restricted to adults;
( c) directing such excisions and modifications as it
thinks fit, before sanctio1,ing the film for unrestricted public 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 granting a '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) A 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
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455
States, public order, decency or morality, or involves defamation 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 a certificate in respec< of a
film who is aggrieved by any order of the Board-
(a) refusing to grant a 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, appeal to the Central Government, and the Central Government may, after such inquiry into the matter as it considers necessary and after giv\ng the appdlant an opportunity 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 a general revising
power which may be exercised during the pendency of a him before
the Board and even after it is certified.
under the latter part of
this power the Central Government may cancel a 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 subject 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 divided 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
it.
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[1971] 2 S.C.R
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 a uniform standard may be
applied by the different regional panels and Boards.
The first section deals with films which are considered unsuitable for public
exhibition. This section is divided into clauses A to F. Clause A
deals with the delineation of crime, B with that of vice or immorality, C with that of relations between sexes, D with tlhe exhibition
of human form, E with the bringing into contempt of armed forces,
or the public authorities entrusted with the administration of law
and order and F 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 promoting disorder, violence, a breach of the law or disaffection or
resistance to Government.
Clauses E and F are further explained by stating wh::.c is unsuitable and what is objectionable in relation to the topics under
those clauses.
Section IT then enumerates subjects which may be objectionable
in a context in which either they amount to indecency, immorality,
illegality or incitement to commit a breach of the law.
Section III then provides :
"It is not proposed that certification of a film should
be refused altogether, ·or that it should be certified as
suitable for adult audiences only, where the deletion of
a part or parts, will render it suitable for unrestricted public exhibition or for exhibition restricted to adults, and
such deletion is made, unless the film is such as to deprave 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 a certificate for unrestricted public exhibition in
respect of a fi.hn depicting a story or containing incidents unsuitable
for young persons. Emphasis in this connect.ion is laid in particular upon-
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(i) anything which may strike terror in a young person, e.g., scenes depicting ghosts, brutality, mutilations,
torture, cruelty, etc.;
(ii) anything tending to disrupt domestic harmony or
the confidence of a child in its parents, e.g. scenes depicting parents quarrelling violently, or one of them striking
the other, or ~ne or both of them behaving immorally;
(iii) anything tending to make a 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 B s!lni!ar
directions are given with regard to vice and immoral acts and vicious and immoral persons.
In Clause C the unsuitability arises
from lowering the sacredness of the institution of marriage and
depicting rape, seduction and criminal assaults on women, immoril traffic in women, soliciting prostitution or procuration, illicit
sexual relations, excessively passionate
love scenes, indelicate
sexual situations and scenes suggestive of immorality. In Clause
D !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 animals, drunkenness or drinking not essentiill to the theme of the
story, traffic and use of drugs, cliiss hatred, horrors of war, horror
as a 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 a 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.
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[1971] 2 S.C.R .
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 motion picture .has had a run.
The only difference is one of the
stage at which the State interposes its regulations between the individual 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 a part where motion pictures
ar~ involved, shows the desirability of censorship in this field. The
Khosla Committee has given a description generally of the recrulations 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 a paper entitled 'Creative
Expression' written by him.
This is what he said:
"But even if we believe that a novelist or a painter
or a musician should be free to write, paint and co.rripose music without the interference of the State machinery, 1 doubt if anyone will advocate the same freedom
to be extended to the commercial exploitation of a
powerful medium of expression and entertainment like
the cinema.
One can imagine the results if an 1mbridle<l con1merical cinema is allowed to cater to the lowest
co1,1mon denominator of popular taste, specially in a
country which, after two centuries of political and cultural domination, is still suffering from a confusion and
debasement of cultural values.
Freedom of expression cannot, and should not, be.
interpreted as a 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 treatment 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 dimensionai 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 emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than
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mature men and wwnen. They also remember the action in the
picture aIJd try to emulate or imjtate what they have seen. Therefore, classification of films into two categories of 'U' films and 'A'
films is a reasonable classification. It is also for this reason that
motion picture must be regarded differently from other forms of
speech and expression. A person reading a book or other writing
or hearing a speech or viewing a painting or sculpture is not so
deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on a different footing is also a 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 a few words about censorship 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 a very large number of per
curiam decisions ~n which, while concurring with the earlier
opinion of the Court, there is sometimes a restatement with a difference.
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 a board of censors is set up to examine and censor, as a
condition precedent to exhibition, motion picture films, to be
publicly exhibited and displayed, with a view to pas>ing and approving 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 conduct". 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 before speech and expression could be. abridged by State laws. To·
this, was added i~ 1919 the test of 'clear and present danger' propounded 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 components of the test :
(a) There must be a clear and present _danger that
speech would produce a 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.
460
SUPREME COURT REPORTS
[1971) 2 S.C.R.
(b) There must be a '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 a prohibition on freedom
of speech and expression for the police power of the
State could not be exercised to take away the guarantee to avert a relatively trivial harm to society.
In 1931 in Near v. Minnesota(!) im11lllnity of press from precensorship was denied but pre-censorship (as it is termed previous
restraint) was not to be unlimited.