|Court||Supreme Court of India|
|Decided on||28 November 2017|
|Citation||(2018) 1 SCC 770|
|Case No.||Writ Petition (Criminal) no. 191 of 2017|
|Bench||CJI Dipak MishraA.M KhanwilkarD.Y Chandrachud|
|Appellant||Manohar Lal Sharma|
|Respondents||Sanjay Leela Bhansali & others|
|Reference||Article 32 of the Indian Constitution, 1949, Section 7 of the Cinematograph Act, 1952, Section 153A, 295, 295A, 499, and 500 of the Indian Penal Code (IPC), 1860 read with Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.|
The Constitution of India gives its citizens a right to constitutional remedies under Article 32 If an individual feels that his rights are being violated then he can move the Supreme Court (SC) to seek justice and also, the SC also has the power to issue writs to protect these rights. In the case of Manohar Lal Sharma v. Sanjay Leela Bhansali & Others, the appellant moved the SC by filing a writ petition against the release of the film ‘Padmavati’ to seek justice for the violation of rights of several people whose sentiments were hurt by the depictions of this film but alongside this, the right of freedom of expression of the makers was also violated and hence this controversy. The violent protests in various states and demands to ban the film led to the existence of this case.
The Right to Constitutional Remedies is given under Article 32 of the Constitution if India, 1949. Article 32 gives a right to every individual to ask for justice from the SC when they feel their fundamentals rights are being violated. Also, the SC has the power and authority to issue writs, within its jurisdiction, to protect the rights of individuals.
In the present case, Manohar Lal Sharma, a practicing lawyer moved the Apex Court by filing a Public Interest Litigation (PIL) under Article 32 of the Indian Constitution praying that the film ‘Padmavati’ should not be exhibited in other countries without the certificate of Central Board of Film Certification (CBFC) and also issue a writ of mandamus to the respondent no. 5 which is the Central Bureau of Investigation (CBI) to issue an FIR against respondent no. 1 and no. 2.
“If I was asked to name any particular article in this Constitution as the most important- an article without which this Constitution would be a nullity— I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.”
– Dr. B. R. Ambedkar
The inception of this case was when a Rajasthan based organization called ‘Karni Sena’ destroyed movie sets and expensive equipment which in turn stopped the film shooting. The protests became focused majorly on the Chittorgarh region of Rajasthan. In November, when the date of release was close, the protests intensified and a ban was demanded by Karni Sena on the pretense that the film Padmavati is contorting historical facts and portrays a poor image of Rajputs. The Apex Court dismissed the writ petition filed against the release of the film Padmavati saying that it has trust in CBFC that it will examine all factors before granting a certificate to the film.
Even after the dismissal, protests against Padmaavat didn’t come to an end. Anil Vij, Haryana Health Minister, said that he will not allow the screening of this movie and will move the CBFC to impose a ban on this film. Also, the Shri Rajput Karni Sena called for a ‘bandh’ on 1st December 2017, the day on which Padmaavat was supposed to be released. Many states witnessed protests against this film to stop its release. Due to these ongoing protests and numerous threats, the makers deferred the release of the film. CBFC, on the other hand, took the opinion of two historic veterans, Professor B.L. Gupta and Prof R.S. Khangarot before granting certification to the film.
After all these hurdles, the release date was finally set to 25 January 2018 but was still banned in Rajasthan, Gujarat, Haryana, and MP. On 16 January 2018, the producers of the film moved the Apex Court to withdraw the ban in these 4 states. The Apex Court removed this ban and further restrained all other states to do such an act ensuring the release of film Padmaavat all across India.
The Appellant, Manohar Lal Sharma approached the Apex Court through a writ petition filed under Article 32 as a PIL, praying the court to ban the controversial film named ‘Padmavati’ and to not screen it in other countries without obtaining a certificate from the CBFC. Within this writ petition, the appellant also prayed for the court to issue a writ of mandamus to the CBI to register an FIR against the respondents that are Sanjay Leela Bhansali and his team for an offence punishable under Section 7 of the Cinematograph Act, 1952 read with Sections 153A, 295, 295A, 499 and 500 of the IPC read with Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
The first contention that was raised by the learned counsel, Mr. Manohar Lal Singh was that the respondent no. 1 is to exhibit the film in other countries that have a global market but the learned counsel for the said respondent, Mr. Salve has cleared that the respondent has no such intention. The film having not yet received certification from CBFC, the second contention was that the court should issue an order to the respondent no. 5 that’s CBI, to register an FIR against the respondents and their team members for the offence punishable under the aforesaid section 7 of the Cinematograph Act, 1952 read with Sections 153A, 295, 295A, 499 and 500 of the IPC read with Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
Another aspect of the case that was highlighted by the bench was that of ‘freedom of expression of thought’ which a poet has and which needs innovation, skill, craftsmanship, and most significantly, originality acquired from imagination or reality curved into images. Hence, creativity is always respected and obtains an inherent protective right which may be called ‘artistic license’. In Devidas Ramachandra Tuljapurkar v. State of Maharashtra and others, it was said:-
“As far as the words “poetic license”, are concerned, it can never remotely mean a license as used or understood in the language of the law. There is no authority who gives a license to a poet. These are words from the realm of literature. The poet assumes his own freedom which is allowed to him by the fundamental concept of poetry.”
Therefore, the court was of this view that artistic license has a higher foundation but it is upon the court of law to objectively judge the same on a case by case basis.
- Whether the contention of the appellant that the respondents are exhibiting the film ‘Padmavati’ in other counties because of the international market present there is correct?
- Whether the contention of the appellant is justifiable in accusing the respondents of an offence punishable under aforesaid section 7 of the Cinematograph Act, 1952 read with Sections 153A, 295, 295A, 499 and 500 of IPC read with Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986?
Article 32, the Indian Constitution
- Article 32 provides for a remedy to move to the Supreme Court when the rights of an individual conferred by this Part are violated.
- Under this Article, the Supreme Court has the power to issue writs to enforce the rights that are conferred under this Part.
- The Parliament can also authorize any other court to exercise the powers of the Supreme Court within the local limits of its jurisdiction.
- The remedies provided under this article cannot be suspended unless there’s a constitutional amendment.
Section 7, the Cinematograph Act
This section provides for the penalties in case there are any contraventions relating to this Part of the Cinematograph Act, 1952, and deals with who can exhibit and watch which films. The film is forfeited to the government in case any person is convicted of an offence punishable under this section. Also, a film certified with ‘A’ certificate if exhibited to children below three years of age accompanying their parents/guardians will not amount to an offence under this section.
Section 153A- IPC
This section deals with the offence of promoting or encouraging enmity or hatred between religious groups on the grounds of race, place of birth, language, etc. and also performing acts that are detrimental to the preservation of harmony among people. The punishment for this offence may extend to a term of 3 years, or fine, or both, and is increased up to 5 years if committed at any place of worship.
Section 295- IPC
This section deals with the offence of destroying, damaging, or defiling a place of worship or a sacred object intending to insult the religion of any class of people. It’s a cognizable offence punishable with imprisonment which may extend to a term of 2 years, or fine, or both.
Section 295A- IPC
This section deals with an offence of maliciously and deliberately doing an act intending to insult the religion or religious beliefs of a class of citizens. This offence is cognizable and punishable with imprisonment which may extend to a term of 2 years, or fine, or both.
Section 499- IPC
This section defines the term Defamation. When a person intends to harm the reputation of another person by words either spoken verbally or written or by any visual representation, then such a person is said to defame that other person. Defamation is of two kinds, written defamation i.e. ‘Libel’ and spoken defamation i.e. ‘Slander’. In India, the offence of Defamation is a civil as well as a criminal offence.
Section 500, IPC
This section provides the punishment for the offence of Defamation which is simple imprisonment extended up to 2 years, or fine, or both.
Section 4, Indecent Representation of Women (Prohibition) Act
Any post containing indecent representation of a woman is prohibited from circulation or publication provided that it shall not apply to
- Any book, pamphlet, paper, etc. which is justified as being for the public good, or is kept or used for religious purposes without the intention to deceive.
- Any representation sculptured, engraved, or painted in any ancient monument, or any temple and vehicle used for religious purposes.
- Any film on which the provisions of the Cinematograph Act, 1952 Part II are applicable.
Ø Nachiketa Walhekar v. Central Board of Film Certification & Anr.
This case also dealt with a similar issue as to whether the Court should pass an injunction order to CBFC directing to delete a particular scene from the film and also to stop its exhibition. The Court mentioned that the right of Freedom of Expression is not something to be interfered with. The decision held by the court was that it should not entertain the writ petition and not order any injunction on CBFC.
Ø State of U.P. v. Lalai Singh Yadav
In this case, Hon’ble Judge Krishna Iyer opined that the rights and responsibilities are complex. They have bordered our Constitution and considering the grammar of anarchy or civil disobedience and there are imposed certain restrictions in exercising these rights.
Ø Sudhir Kumar Saha v. Commissioner of Police
In this case, the Apex Court observed that the freedom of an individual is contemplated as a paramount right in our society. It is a guaranteed right under our Indian Constitution and can only be deprived of by the process of law. It is considered a human right.
The writ petition that sought a ban on the much controversial film ‘Padmavati’ was dismissed by the Apex Court. The three-judge bench consisting of CJI Dipak Mishra, A.M Khanwilkar, and D.Y Chandrachud was of opinion that if the certification of the controversial film is still pending before the CBFC, then adjudicating the matter present would be pre-judging it. If the public offices or people holding a post of public responsibility decide or remark on this issue before the concerned authority then it is a transparent violation of the rule of law. Therefore, the prayer has no foundation. It was also said that such PILs cannot be filed before the court of law for publicity or any other motive unless the concerned authority or statutory authority has decided the case. It is unfortunate how PILs can be misused.
In response to the second contention, the Court observed that as much as Sections 499 and 500, IPC is concerned, the police have no role in this aspect and as for the offences under other aforesaid sections, the Court was of the view that it is incomprehensible how the offences are made out against the respondents and the prayer is unequivocally misguided and hold no ground as such for the court to issue a direction to register an FIR against the respondents.
Along with the above decisions, the Court also stated that “It is settled in law that no right is absolute but the fetters for enjoying the rights should be absolutely reasonable more so when it relates to the right to freedom of speech and expression and right to liberty.” The Court also didn’t impose any costs upon the appellant for abusing the judicial process.
The constitutional remedy that is provided under Article 32 of the Indian Constitution is considered as the soul of our constitution which implies that this remedy is necessary to protect the fundamentals rights of the individuals to maintain harmony and the Supreme Court acts as a guardian of these rights. In order to maintain such harmony among the citizens, their sentimental values must not be hurt in any way possible be it any religious comment or any visual representations. We live in a democratic country and are free to express our views, whether they are imaginative or real but the right of Freedom of Speech and Expression should be exercised in such a manner that it does not harm public sentiments in any way.
-  Article 32, www.indiankanoon.org/doc/981147/
-  (2018) 1 SCC 770
-  Section 7 www.indiankanoon.org/doc/1508508/
-  Section 153A www.indiankanoon.org/doc/345634/
-  Section 295 www.indiankanoon.org/doc/305995/
-  Section 295A www.indiankanoon.org/doc/1803184/
-  Section 499 www.indiankanoon.org/doc/1041742/
-  Section 500 www.indiankanoon.org/doc/1408202/
-  Section 4 www.indiankanoon.org/doc/124708675/
-  Criminal Appeal No. 1179 of 2010
-  (2018) 1 SCC 778
-  (1976) 4 SCC 213
-  (1970) 1 SCC 149