National Federation of Indian Women Tamil Nadu Council v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 16-02-2008CORAMTHE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANWRIT PETITION No.2921 of 2004andW.P.M.P.No.3441 of 2004National Federation of Indian WomenTamil Nadu Council, rep. by itsGeneral SecretaryMrs.K.Santhakumari. ...Petitioner-vs-1. Government of Tamil Nadu rep. by its Secretary Home Department, Secretariat, Chennai – 600 009.2. The Director General of Police Kamarajar Salai, Chennai – 600 004.3. The Regional Officer Central Board of Film Certification Shastri Bhavan, Chennai – 600 006. ... Respondents Writ Petition, seeking mandamus is filed by the petitioner,under Article 226 of the Constitution of India, to direct therespondents 1 and 2 to discharge their statutory obligation byenforcing the prohibitions imposed by the third respondent in theprocess of censor and certification of movie films in respect of cutsin visuals as well as songs and dialogues (audio) in the State ofTamil Nadu by effecting seizure of materials containing prohibitedvideo and audio and by strictly prosecuting the offenders an also bygiving a public warning and notification in this regard.For petitioner : Mrs.K.Santhakumari (Party-in-person)For respondents: Mrs.D.Geetha, AGP for R1 and R2 Mr.P.Wilson, ACGSC for R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E RS.TAMILVANAN,JThis writ petition is filed for issuance of a writ of mandamusdirecting the respondents 1 and 2 to discharge their statutoryobligation by enforcing the prohibitions imposed by the thirdrespondent in the process of censor and certification of movie filmsin respect of cuts in visuals as well as songs and dialogues (audio)in the State of Tamil Nadu by effecting seizures of materialscontaining prohibited video and audio matters, by prosecuting theoffenders and also by giving a public warning and notification inthis regard.2. This writ petition has been filed as a Public InterestLitigation by the National Federation of India Women, Tamil NaduCouncil, an Association registered under the Society RegistrationAct, represented by its General Secretary. According to thepetitioner, various satellite cable networks and individual operatorsare telecasting movies and scenes for public view and play songs anddialogues, even after having prohibited by the Censor Board, thethird respondent herein, without considering the age of the viewersand audience.3. According to the petitioner, on 12.12.2003, she had made arepresentation before the respondents stating that certain private FMradio companies are broadcasting the songs prohibited by the CensorBoard in public, though the songs containing objectionable wordswhich should not be heard by the children. It has been furthercontended that prohibited cassettes containing objectionable words orstanzas of video or audio clippings, which were directed to beremoved by the Censor Board, but are being sold, due to which, theculture of the society is being spoiled and the same will mislead theyouth to use the same even for eve teasing.4. Mrs.K.Santhakumari, a practicing Advocate, as GeneralSecretary of the petitioner Federation, appeared party-in-person,submitted that the aforesaid violation has a direct impact andconsequences against the women in the State and on that groundpleaded that the video and audio cassettes and CD disks of obscenemovies containing the stanzas or words, which are prohibited by theCensor Board should be curtailed from public view and hearing. Basedon the aforesaid pleadings, the petitioner herein has sought for adirection to the respondents, to seize all the video and audiocassettes, which contain obscene visuals and songs which areprohibited by the Censor Board. https://hcservices.ecourts.gov.in/hcservices/

5. Mrs.D.Geetha, learned Additional Government Pleader appearingfor the respondents 1 and 2 had not disputed the fact that as per theprovisions of Cinematography Act, 1953, there is a ban on exhibitingobscene visuals and songs prohibited by the Censor Board and if it isplayed in public, the Police Department and the DistrictAdministration should firmly deal with the offender, according to law.6. The petitioner herein submitted that the police departmentand the District authorities in the State of Tamil Nadu did not careto interfere with the aforesaid illegal act, either out ofindifference or out of ignorance of the provisions of law, relatingto such prohibition of obscenity in public places. The petitionerwould contend that cable telegraphic network telecast ‘A’ certificatemovies, at all times, indiscriminately for unrestricted publicviewing and obscene songs or dialogues, containing obscene part offilms are bring broadcasted or telecasted every day, in everypossible manner. According to her, even the obscene scenes or songsare played on several route buses in the State of Tamil Nadu.7. In the affidavit, the petitioner has specifically stated thatthe songs from the movie named “Pudukottaiyilirunthu Saravanan”consisting of obscene words describing women in general in a veryobscene and in descent manner could be noticed by her and upon acomplaint to the Censor Board, the police had seized the cassettes.8. The petitioner contended that several hundreds of suchinstances of offences are being committed by the telecasters andbroadcasting companies every day, without subjected to any action bythe respondents, irrespective of the fact that both boys and girls inthe adolescent age are also travelling in the buses along with theirparents and other family members.9. As the matter relates to public importance, this Court askedthe views of all the learned members of the Bar present in the opencourt on the subject. The learned Senior Counsel, Mr.P.N.Prakash andAssistant Solicitor General Mr.P.Wilson and others have contributedtheir views. It is a consensus and unanimous view that telecastingprohibited portion of any movie, song or dialogue, on account of itsobscenity, for public view and hearing by satellite cable network andother individual operators should be curtailed, as the same wouldaffect the society in general, as contended by the petitioner. Theother view expressed by the learned members was that there arepossibility for telecasting or playing obscene video or audiocassettes, which are not subjected to the purview of Censor Board.Considering the factual aspects, we are of the view that if there isany visual or audio clipping, not being part of any film, thoughobscene would not come under the purview of Central Board of FilmCertification. https://hcservices.ecourts.gov.in/hcservices/

10. In public places and plying buses, especially on the mufsalroutes, it is possible to play such unauthorized obscene visuals,songs or dialogues, for which action can be taken by the respondent 1and 2 under the Indian Penal Code. From the views expressed by thelearned members, we could visualize that even in certain theatres,prohibited obscene portions of films that were cut and removed, whileissuance of Censor Certificate, are subsequently attached with thefilm and exhibited for public view.11. As per Section 7A of the Cinematograph Act, 1952, any policeofficer may enter in any place, in which he has reason to believethat a film is exhibited in contravention of the Act. Section 7A ofthe Cinematograph Act, 1952 ( herein after referred to as the Act)reads as follows :“ 7A Power of seizure : (1) Where a film in respectof which no certificate has been granted under thisAct is exhibited, or a film certified as suitablefor public exhibition restricted to adults isexhibited to any person who is not an adult or afilm is exhibited in contravention of any of theother provisions contained in this Act or of anyorder made by the Central Government, the Tribunalor the Board in exercise of any of the powersconferred on it, any police officer, may enter anyplace in which he has reason to believe that thefilm has been or is being or is likely to beexhibited, search it and seize the film.”12. Apart from seizure of such a film, penal action can also betaken by the authorities against the offenders, who violate orcontravene the Act, by exhibiting a film without any restriction,though certified as suitable for restricted adults in publicexhibition under Section 7 of the Act. As contemplated under Section7(i) of the Act, any film other than a film which has been certifiedby the Board as suitable for unrestricted public exhibition or forpublic exhibition restricted to adults or to members of anyprofession or any class of persons, if exhibited or displayedcontravening the Act, would be liable for punishment of sentence,which may extend to three years or with fine, which may extend to onelakh rupees or with both.13. As per the definitions under Section 2 (c), the term,“cinematograph”, includes any apparatus for the representation ofmoving pictures or series of pictures. As per sub section (e) ofSection 2 “place” includes a house, building, tent and anydescription of transport, whether by sea, land or air. https://hcservices.ecourts.gov.in/hcservices/

14. It is not in dispute that even a part of the film or songdisplayed in any house, building, tent or even in transport, subjectto public view, violating the provisions of the Act, would be anoffence, punishable under the Cinematograph Act, 1952. 15. The Hon’ble Supreme Court in the decision, Raja VideoParlour vs. State of Punjab, reported in AIR 1993 SC 2330, hascategorically held that Punjab Cinema Regulation Rules are applicableto exhibition of films on a separate screen through video cassetteplayers and television projectors. The words ‘television screen’ inthe Rules are wide enough to cover a screen of the TV projector asthe same is a television receiver.16. However, the ratio of the aforesaid decision of the SupremeCourt cannot be extended to cover a case where song is played only inan audio cassette and there is no accompanying visual display.17. It is not in dispute that prohibiting obscene visuals andaccompanied by audio to public view and hearing cannot be construedas an unreasonable restriction against the fundamental rights of anyoperators of cable networks or others, as guaranteed under Article19 (1) (g) of the Constitution.18. Restriction on censored visuals including audio when theyare part of such visuals, is obviously contemplated under theCinematograph Act and a person can be proceeded against under theprovisions of the said Act. Even such persons can be prosecutedunder the relevant provisions contained in the Indian Penal Code, iffacts and circumstances so warrant. However, keeping in view thelimited meaning ascribed to “Cinematograph” in the Act, playing ofmere audio cassette without any accompanying visual display, even ifsuch audio cassettes contain lyrics, which are directed to be deletedfrom the film by the Censor Board, would not be violative of anyspecific provision of the Cinematograph Act. However, if such lyricscontained in an audio cassette are of obscene, appropriate action canalways be taken by the authorities, under the Indian Penal Code.19. Even though the petitioner's apprehension regarding playingof obscene songs in public places is justified, we are afraid keepingin view of the limited scope of the Cinematograph Act, as per theexisting provisions, no action can be taken, though the authoritiesare not helpless in the matter and they can always take appropriateaction under the Indian Penal Code.20. In the decision, I.P.R. Society vs. E.I.M.P. Association,reported in AIR 1977 SC 1443 the Hon’ble Supreme Court has held asfollows :“The Indian music lovers throng to listen and beenthralled or enchanted by the nadabrahma, the sweet https://hcservices.ecourts.gov.in/hcservices/ concord of sounds, the raga, the bhava, the laya andthe sublime or exciting singing. Printed music isnot the glamour or glory of it, by and large,although the content of the poem or the lyric or thesong does have appeal, strangely enough, ‘author’ asdefined in S.2 (d) in relation to a musical work isonly the composer and S.16 confined ‘copyright’ tothose works which are recognized by the Act. Thismeans that the composer alone has copyright in amusical work. The singer has none. Thisdisentitlement of the musician or group of musicalartists to copyright is un-Indian, because the majorattraction which lends monetary value to a musicalperformance is not the music maker, so much as themusician. Perhaps, both deserve to be recognized bythe copyright law.”21. The ratio of the aforesaid decision in the context of“copyright” cited by the petitioner, cannot be extended to hold thatplaying of a song containing deleted lyrics without being accompaniedby visual display would be violative of any provision contained inthe Cinematograph Act.22. Keeping in view the aforesaid aspects, we dispose of thewrit petition with the observation that if any song containingobscene lyrics (whether such lyrics have been directed to be deletedby the Censor Board or otherwise) can always be subjected toappropriate provisions contained in the Indian Penal Code, but theprovisions of the Cintematograph Act could not be applicable to suchtransgression. The question as to whether appropriate provisionwould contain in the Cinematograph Act or any other statutoryprovision is to be made prohibiting the use of the songs containingdeleted lyrics or obscene lyrics, is a matter for the appropriateLegislature to consider. 23. The writ petition is accordingly disposed of, subject to theaforesaid observation. No costs. Consequently, connectedmiscellaneous petition is closed.sd/-Asst.Registrar/true copy/Sub Asst.Registrartsvn https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary Home Department Government of Tamil Nadu Secretariat, Chennai – 600 009.2. The Director General of Police Kamarajar Salai, Chennai – 600 004.3. The Regional Officer Central Board of Film Certification Shastri Bhavan, Chennai – 600 006. +1 cc To Mrs.K.Santhakumari (Party-in-person), Advocate, SR.8287+1 cc To Mr.P.Wilson ASGI, Advocate, SR.83501 cc To The Government Pleader, SR.8481 W.P.No. 2921 of 2004rs [co]gkg/28.3