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CompendiumOf the Cases CitedOn behalf of the Respondents in the matter ofMr. Kishan Juneja & Ors................................................v.Central Baord of Film Certification & Ors.......................1Ranjit D. Udeshi, 1965 AIR 881, 1965 SCR (1) 65.(Before P Gajendragadkar, C, K Wa...

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3rd C.L Agrawal Memorial Moot Court Competition, 2019

Compendium Of the Cases Cited On behalf of the Respondents in the matter of

Mr. Kishan Juneja & Ors………………….………………………Appellant

v.

Central Baord of Film Certification & Ors……………………Respondent

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3rd C.L Agrawal Memorial Moot Court Competition, 2019

Ranjit D. Udeshi, 1965 AIR 881, 1965 SCR (1) 65.

(Before P.B Gajendragadkar, C.J, K.N Wanchoo, J.C Shah, Rajagopal Ayangar and m. Hidayatullah, JJ)

This extract is taken from Ranjit D. Udeshi v. State of Maharashtra , (1965) 1 SCR 65 : AIR 1965 SC 881 : (1965) 2 Cri LJ 8.

M. HIDAYATULLAH, J.— The appellant is one of four partners of a firm which owns a bookstall in Bombay. He was prosecuted along with the other partners under Section 292 of the Indian Penal Code. All the facts necessary for our purpose appear from the simple charge with two counts which was framed against them. It reads: “That you Accused 1, 2, 3, 4 on or about the 12th day of December, 1959 at Bombay being the partners of a book-stall named Happy Book Stall were found in possession for the purpose of sale copies of an obscene book called Lady Chatterley's Lover (unexpurgated Edn.) which inter alia contained, obsence matter as detailed separately and attached herewith and thereby committed an offence punishable under Section 292 of the Indian Penal Code. AND That you Gokuldas Shamji on or about the 12th day of December 1959 at Bombay did sell to Bogus Customer Ali Raza Sayeed Hasan a copy of an obscene book called Lady Chatterley's Lover (unexpurgated Edn.) which inter alia contained obscene matter as detailed separately and attached herewith and thereby committed an offence punishable under Section 292 of the Indian Penal Code.” The first count applied to the appellant who was Accused 2 in the case. The Additional Chief Presidency Magistrate III Court, Esplanade, Bombay convicted all the partners on the first count and fined each of them Rs 20 with one week's simple imprisonment in default. Gokuldas Shamji was additionally convicted on the second count and was sentenced to a further fine of Rs 20 or like imprisonment in default. The Magistrate held that the offending book was obscene for purposes of the section. The present appellant filed a revision in the High Court of Bombay. The decision of the High Court was against him. He has now appealed to this Court by special leave and has raised the issue of freedom of speech and

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3rd C.L Agrawal Memorial Moot Court Competition, 2019 expression guaranteed by the nineteenth Article. Before the High Court he had questioned the finding of the Magistrate regarding the novel. 2. It is convenient to set out Section 292 of the Indian Penal Code at this stage: “292. Whoever— Sale of obscene books, etc.— (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or (b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or (c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or (d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or (e) offers or attempts to do any act which is an offence under this section, shall be punished with imprisonment for either description for a term which may extend to three months, or with fine, or with both. Exception.— This section does not extend to any book, pamphlet, writing, drawing or painting kept or used bona fide for religious purposes or any representation sculptured, engraved, painted or otherwise represented on or in any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

9. Condemnation of obscenity depends as much upon the mores of the people as upon the individual. It is always a question of degree or as the lawyers are accustomed to say, of where the line is to be drawn. It is, however, clear that obscenity by itself has extremely "poor value in the-propagation of ideas, opinions and information of public interest or profit." When there is propagation of ideas, opinions and information of public interest or profit, the approach to 3 Compendium

3rd C.L Agrawal Memorial Moot Court Competition, 2019 the problem may become different because then the interest of society may tilt the scales in favour of free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene. Section 292, Indian Penal Code deals with obscenity in this sense and cannot thus be said to be invalid in view of the second clause of Art. 22. We may now refer to Roth's case (1) to which a reference has been made. Mr. Justice Brennan, who delivered the majority opinion in that case observed that if obscenity is to be judged of by the effect of an isolated passage or two upon particularly susceptible persons, it might well encompass material legitimately treating with sex and might become unduly restrictive and so the offending book must be considered in its entirety. Chief Justice Warren on the other hand made "Substantial tendency to corrupt by arousing lustful desires as the test. Mr. Justice Harlan regarded as the test that must "tend to sexually impure thoughts". In our opinion, the test to adopt in our country (regard being had to our community mores) is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating with sex in a manner appealing to the carnal side of human nature, or having that tendency. Such a treating with sex is offensive to modesty and decency but the extents of such appeal in a particular book etc. are matters for consideration in each individual case. 29. We have dealt with the question at some length because this is the first case before this Court invoking the constitutional guarantee against the operation of the law regarding obscenity and the book is one from an author of repute and the centre of many controversies. The book is probably an unfolding of his philosophy of life and of the urges of the unconcious but these are unfolded in his other books also and have been fully set out in his Psychoanalysis and the Unconscious and finally in the Fantasia of the Unconscious. There is no loss to society if there was a message in the book. The divagations with sex are not a legitimate embroidery but they are the only attractions to the common man. When everything said in its favour we find that in treating with sex the impugned portions viewed separately and also in the setting of the whole book pass the permissible limits judged of from our community standards and as there is no social gain to us which can be said to preponderate, we must hold the book to satisfy the test we have indicate above. 4 Compendium

3rd C.L Agrawal Memorial Moot Court Competition, 2019 30. In the conclusion we are of the opinion that the High Court was right in dismissing the revision petition. The appeal fails and is dismissed.

Samaresh Bose v. Amal Mitra, 1986 AIR 967, 1985 SCR Supl. (3) 17.

(Before R.S Pathak and A.N Sen, JJ)

A.N. Sen, J. 1. Samaresh Bose, the first appellant, is a well-known writer of Bengali Novels and stories. He is the author of a novel which under the caption 'Prajapati' came to be published in 'Sarodiya Desh' (the annual pooja number of the Bengali Journal 'Desh') for the Bengali year 1374 B.S. Desh is a journal of repute with wide circulation and the puja number is read by lovers of Bengali literature of all age groups all over India, Sitangshu Kumar Dasgupta, the second appellant was the publisher and the printer of the journal at the relevant time.

2. On the 2nd of February 1968, Amal Mitra, a young Advocate, made an application in the Court of the Chief Presidency Magistrate at Calcutta complaining that the said novel 'Prajapati' "contains matters which are obscene and both the accused persons have, sold, distributed printed and exhibited the same which has the tendency to corrupt the morals of those in whose hands the said 'Sarodiya Desh' may fall and the reading public as well" and "both the accused persons have committed an offence punishable under Section 292 Indian Penal Code (I.P.C. for short) and under Section 292 read with Section 109 I.P.C.

41. It appears that the vulgar and slang language used have greatly influenced the decision of the Chief Presidency Magistrate and also of the learned Judge of the High Court. The observations made by them and recorded earlier go to indicate that in their thinking there has been kind of confusion between vulgarity and obscenity. A vulgar writing is mot necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does mot have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences.

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3rd C.L Agrawal Memorial Moot Court Competition, 2019 42. We must, therefore, allow this appeal. We set aside the judgment of the Courts below and the conviction recorded and sentenced imposed on the appellants. We acquit the appellants of the charges framed against them and we hold that the novel is not obscene and does not offend Section 292 I.P.C. We direct that the fine, if paid by the appellants, shall be refunded to them. We make no order as to costs.

K.A. Abbas v. Union of India, AIR 1978 SC 597.

(Before M. Hidayatullah, C.J, and J. Sheit, G.K Mitter,C.A Vaidiyalingam and A.N Ray,JJ)

This extract is taken from K.A. Abbas v. Union of India, (1970) 2 SCC 780 at page 783. M. HIDAYATULLAH, 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 Section 5-B of the Act are unconstitutional and void. As a consequence the petitioner asks for a writ of mandamus or any other appropriate writ, direction or order quashing the direction contained in a letter (Annexure X), dated July 3, 1969, for deletion of certain shots from a documentary film entitled “A Tale of Four Cities”, produced by him for unrestricted public exhibition. This extract is taken from K.A. Abbas v. Union of India, (1970) 2 SCC 780 at page 783. 2. The petitioner is a journalist, play-wright and writer of short stories. He is also a producer and director 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 film some of which have been well-received here and abroad and even won awards and prizes. This extract is taken from K.A. Abbas v. Union of India, (1970) 2 SCC 780 at page 789. 20. 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:

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3rd C.L Agrawal Memorial Moot Court Competition, 2019 "But even if we believe that a novelist or a painter or a musician should be free to write, paint and compose music without the interference of the State machinery, I 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 unbridled commercial cinema is allowed to cater to the lowest common denominator of popular taste, especially 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 license for the cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar taste'. This extract is taken from K.A. Abbas v. Union of India, (1970) 2 SCC 780 at page 799. 52. It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi case certain considerations for the guidance of censorship of books. We think that those guides work as well here. Although we are not inclined to hold that the directions are defective in so far as they go, we are of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included. Whether this is done by Parliament 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. 53. 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 circumstances we make no order about costs.

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3rd C.L Agrawal Memorial Moot Court Competition, 2019

Bobby Art International V. Mahendar Pal Singh Hoon, (1996) 4 SCC 1.

(Before A.M Ahmadi, C.J, S.P Bharucha and B.N Kirpal, JJ)

This extract is taken from Bobby Art International v. Om Pal Singh Hoon , (1996) 4 SCC 1 at page 4.

S.P. BHARUCHA, J.— Special leave granted. This extract is taken from Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1 at page 4.

2. These appeals impugn the judgment and order of a Division Bench of the High Court of Delhi in letters patent appeals. The letters patent appeals challenged the judgment and order of a learned Single Judge allowing a writ petition. The letters patent appeals were dismissed, subject to a direction to the Union of India (the second respondent). The writ petition was filed by the first respondent to quash the certificate of exhibition awarded to the film “Bandit Queen” and to restrain its exhibition in India. This extract is taken from Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1 at page 16.

31. A film that illustrates the consequences of a social evil necessarily must show that social evil. The guidelines must be interpreted in that light. No film that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil. At the same time, the depiction must be just sufficient for the purpose of the film. The drawing of the line is best left to the sensibilities of the expert Tribunal. The Tribunal is a multi-member body. It is comprised of persons who gauge public reactions to films and, except in cases of stark breach of guidelines, should be permitted to go about its task.

33. We are of the opinion that the Tribunal had viewed the film in its true perspective and had, in compliance with the requirements of the guidelines, granted to the film an ‘A’ certificate subject to the conditions it stated. We think that the High Court ought not to have 8 Compendium

3rd C.L Agrawal Memorial Moot Court Competition, 2019 entertained the first respondent's writ petition impugning the grant of the certificate based as it was principally upon the slurs allegedly cast by the film on the Gujjar community. We find that the judgment under appeal does not take due note of the theme of the film and the fact that it condemns rape and the degradation of and violence upon women by showing their effect upon a village child, transforming her to a cruel dacoit obsessed with wreaking vengeance upon a society that has caused her so much psychological and physical hurt, and that the scenes of nudity and rape and the use of expletives, so far as the Tribunal had permitted them, were in aid of the theme and intended not to arouse prurient or lascivious thoughts but revulsion against the perpetrators and pity for the victim. 34. The appeals are allowed. The judgment and order under appeal is set aside. The first respondent's writ petition is dismissed. The ‘A’ certificate issued to the film “Bandit Queen” upon the conditions imposed by the Appellate Tribunal is restored.

B.K. Adarsh v. Union of India, 1989 SCC OnLine AP 154.

(Before Ramaswamy, J)

This extract is taken from B.K. Adarsh v. Union of India , 1989 SCC OnLine AP 154 : AIR 1990 AP 100 : (1989) 2 AP LJ (SN) 79 : (1990) 2 An WR 34 at page 101.

1. The Petitioner had produced a film titled ‘SEX VGYAN’ (Sex Education) and applied on Sept., 18, 1987 to the Addl. Regional Officer, Central Board of Film Certification, at Hyderabad (4th respondent) for certification under S. 5-A of the Cinematograph Act (Act 37 of 1952) for short, “the Principal Act”. The Examining Committee met on Oct., 28, 1987 and on preview, recommended to grant ‘A’ Certificate to the film with 13 cuts. On its placement before the Chairman on consideration of the material, he exercised suo motu power and referred to the Revising Committee which saw the film at Bombay on November 18, 1987. All the eight members unanimously recommended that the film in its present form be refused certification and on appeal, the Film Certification Appellate Tribunal confirmed it after seeing the film on February 5, 1988 and hearing the Counsel. The petitioner is assailing the legality of refusal to grant ‘A’ Certificate (fit for exhibiting the film to the Adults). 9 Compendium

3rd C.L Agrawal Memorial Moot Court Competition, 2019 This extract is taken from B.K. Adarsh v. Union of India , 1989 SCC OnLine AP 154 : AIR 1990 AP 100 : (1989) 2 AP LJ (SN) 79 : (1990) 2 An WR 34 at page 102.

2. The film starts with a Conference of Medicos and other delegates on sex education headed by Dr. Ravi Varma who prefaced with the need to enlighten the public on sex education in the modern society and the evil effects due to its ignorance followed by a discussion on several topics starting with ‘Happy married life’, prostitution, venereal diseases, Aids, pregnancy, different methods of deliveries, family planning methods, test tube baby, sex transmission, cancer to sex organs, etc. Thereafter, there is the session viz. questions by the delegates and answers by a panel of Doctors and lastly with sex perversion and their evil effects.

This extract is taken from B.K. Adarsh v. Union of India , 1989 SCC OnLine AP 154 : AIR 1990 AP 100 : (1989) 2 AP LJ (SN) 79 : (1990) 2 An WR 34 at page 107.

18. On the anvil of Art. 14, an argument to accord immunity from punishment, penalty or liability for contravention of law on par with those escaped unscathed is often being breezed across the Bar and it received repeated echo from Sri Subhashan Reddy. He contends that similar films in regional languages like Malayalam, Tamil, Telugu, etc. with more obscenity and pornography have been certified by th...