F.A. Picture International vs Central Board Of Film, AIR 2005 Bom 145
Before Bombay High Court
Decided on: 5th November 2004
Bench: B Dalveer, Chandrachud D.Y.
Author of the judgement: Chandrachud D.Y.
|1||Constitution of India||Article 226, Article 19(1)(a), Article 19(2)|
|2||Cinematograph Act, 1952.
Brief Facts and procedural history:
“Chand Bujh Gaya” is a feature film produced by Faaiz Anwar. The film dwells on the travails of a young couple -a Hindu boy and a Muslim girl – whose friendship and lives are torn asunder by riots in the State of Gujarat.
Besides “Chand Bujh Gaya”, Mr. Faaiz Anwar states that he has been associated with the production of several films, among them “Dil Hai ke Manta Nahi”, “Sajjan” and “Vijay Path”, “Chand Bujh Gaya” was produced under the banner of F.A. Picture International.
On 22nd September, 2003 the petitioner applied for certification of the film for public exhibition to the regional office of the CBFC at Calcutta. The film was examined by the Examination Committee. On 24th September, 2003 the petitioner received an intimation that the Committee recommended a refusal of certificate to the film on the ground that it is unsuitable for public exhibition
The revised footage was submitted on 8th December, 2003 to the first respondent at Calcutta. On 12th December, 2003, the CBFC informed the petitioner that the Committee had recommended that the certificate be refused again. On 19th January, 2004 the petitioner filed an appeal before the Film Certification Appellate Tribunal. The Tribunal affirmed the decision of the certifying authority.
Arguments of the petitioner:
- Each of the reasons that weighed with the certifying authority and with the Appellate Tribunal constitutes a serious encroachment of the right to free speech and expression guaranteed by Article 19(1)(a) of the Constitution.
- These reasons are incapable of passing muster in view of the law laid down by the Supreme Court.
- The censor has clearly missed the central theme of the film.
- Article 19(1)(a) of the Constitution guarantees to every citizen the fundamental right to the freedom of speech and expression. Films have always been regarded as constituting a powerful medium of expression. The form of the medium may change but the values which underlie the importance of expression are constant. In a democratic society, every citizen has a right to speak as indeed, the right to know.
- Artists, writers, playrights and filmmakers are the eyes and the ears of a free society. Their right to communicate ideas in a medium of their choosing is as fundamental as the right of any other citizen to speak. Our constitutional democracy guarantees the right of free speech and that right is not conditional upon the expression of views which may be palatable to mainstream thought. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon.
- The regulatory power of the State when it comes to contract with the fundamental right to free speech must be confined within the boundaries that have been prescribed by Article 19(2) of the Constitution. That sub-article contemplates the regulatory power of the State to impose by law reasonable restrictions on the fundamental right to free speech and expression; in the interests of (i) the sovereignty and integrity of India; (ii) the security of the State; (iii) friendly relations with Foreign States; (iv) public order, decency or morality; and (v) in relation to Contempt of Court, defamation or incitement to an offence. There is no general residuary discretion in a certifying authority to invent grounds which lie outside the purview of the regulatory power conferred by Article 19(2) of the Constitution of section 5B of the Cinematograph Act, 1952.
- Films which deal with controversial issues necessarily have to portray what is controversial. A film which is set in the backdrop of communal violence cannot be expected to eschew a portrayal of violence. The power of literature lies in the ability of the writer to criticize commonly held beliefs and ordinary human foibles. Equally, a writer, producer, and director of a film have the discretion to depict the horrors of social reality.
The court concluded that the reasons which weighed with the CBFC and the Tribunal constitute a clear infringement of the fundamental right of the producer under Article 19(1)(a) of the Constitution.
The orders passed by the CBFC and by the Appellate Tribunal were held unsustainable and therefore quashed and set aside. The respondent was directed to issue an appropriate Censor Certificate for the film “Chand Bujh Gaya”.