Lodha R.M., J.

1. We heard Mr. M.M. Vashi, the learned Counsel for the petitioner, Mr. B.A. Desai, the learned Additional Solicitor General of India for respondent Nos. 1 and 10, Mr. I.M. Chhagla, the learned senior Counsel for respondent No. 4, Dr. V.V. Tulzapurkar, the learned Senior Counsel for respondent Nos. 3 to 7 and Mr. P.M. Mokashi, the learned Assistant Government Pleader.

2. This Writ Petition is at the instance of a teacher who is, inter alia, aggrieved by telecast of adult and obscene films shown by the electronic media and the obscene posters and photographs printed by the print media.

3. Various orders came to be passed from time to time by this Court in the Writ Petition.

4. On 1st September, 2004 this Court issued following directions : "In these circumstances, this Court is left with no option but, to pass the following directions:

(a) We direct Nos. 3 to 9 to give details of "A" rated films telecast on T.V. Channels during last three months. In the affidavit, they must disclose the time of broadcast.

(b) We direct the Police Commissioner to indicate what steps have been taken to deal with obscene publications. We would like the Police Commissioner himself to file his own affidavit indicating that fact.

(c) We also direct the Union of India to disclose what steps have been taken for regulation of broadcast.

(d) Pending the hearing and final disposal of this petition, respondent Nos. 3 to 9 and other T.V. Channels are restrained by an order of this Court from telecasting any adult T.V. programme and film without the appropriate certificate from CBFC.

5. Thereafter on 15th September, 2004 this Court observed that the meeting of the learned Counsel appearing for the parties shall be convened to formulate the draft guidelines.

6. Then on 2nd November, 2004 this Court after scrutiny of Section 292 of IPC, the provisions of the Cinematograph Act, 1952, the Cable Television Networks (Regulation) Act, 1995 and Cable TV Networks Rules, 1994 observed thus :

On 14th September, 2004 another affidavit has been filed Ahmad Javed, Joint Commissioner of Police, (Law and Order) Greater Mumbai. This was pursuant to the direction of the Court directing the Commissioner of Police, Mumbai to file affidavit. Unfortunately, in this affidavit he has stated that the Cable Television Networks (Regulation) Act, 1995 is a regulatory Act under which the Central Government has got the power to regulate the programmes on the said channel/Cable T.V. He has further stated that most of the cable/channel T.Vs were broadcast through satellite, it is not practically possible for the police to take any action against the said cable/channel T.V.

7. The matter came up before the Division Bench on 8th December, 2004 and the following order was passed:

We have heard the learned Counsel for the parties. We deem it appropriate to pass the following order:

(i) Newspapers and periodicals are restrained from publishing any advertisement which amount to invitation to prostitution;

(ii) Newspapers and periodicals are restrained from publishing any advertisement which have sexual overtone;

(iii) Newspapers and periodicals are restrained from publishing any advertisement which would violate Section 3 of the Indecent Representation of Women (Prohibition). Act, 1986 and other provisions of different Acts.

8. On 1st December, 2004 and 12th January, 2005, the Division Bench observed thus:

It is absolutely imperative for the Government to issue appropriate guidelines regarding down linking. We direct the Union of India to formulate the guidelines within two months from today and place them on record.

9. By the order dated 16th March, 2005, further time was given to the Union of India to frame the guidelines as expeditiously as possible and within six months from that date,

10. It is pertinent to notice here that the petitioners took out Notice of Motion being Notice of Motion No. 506 of 2005 alleging therein that the respondent Nos. 3 to 6 were guilty of breach of the orders in exhibiting adult films and obscene films without proper certificate from Censor Board of Film Certification.

11. Today, when the matter came up for consideration before us, the learned Counsel for the petitioner submitted that despite the order dated 1st September, 2004 and the subsequent orders restraining the respondent Nos. 3 to 9 and other T.V. Channels from telecasting adult TV programmes and adult films without appropriate certificate from C.B.F.C., the said respondents and other T.V. Channels in utter disregard and flagrant violation of the provisions of Cable T.V. Networks Regulation, 1995 and Rules of 1994 are exhibiting adult T.V. Films/programmes and, therefore, appropriate order be passed by us to obviate further breaches and violations.

12. The learned Senior Counsel appearing for the respondent No. 4 and respondent Nos, 3 and 7 refuted the submission of the learned Counsel for the petitioner and submitted that neither of these respondents has breached the orders of this Court nor the telecast of adult/films after obtaining the certificate of the C.B.F.C. can be said to be in breach of the orders of this Court or the existing laws.

13. We considered the submissions of the learned Senior Counsel and the Counsel for the parties.

14. The Cable Television Networks (Regulation) Act, 1995 came into effect on 25th November, 1995. The Act was enacted to regulate Cable television networks in the country so as to bring uniformity in their operations and to avoid undesirable programmes from being made available to the viewers and at the same time enable the optimal exploitation of this technology which has the potential of making available to the subscribers of vast pool of information and entertainment.

15. Section 2 defines various expressions viz., "the authorised officer", cable operator", "cable service", "cable television network" and "programme" under Clauses (a),(aa), (b) (c) and (g) respectively.

16. Section 5 provides that no person shall transmit or retransmit through cable service any programme unless such programme is in conformity with the prescribed programme code.

17. Section 6 provides that no person shall transmit or retransmit through cable service any advertisement unless such advertisement is in conformity with the prescribed advertisement code.

18. Section 11 empowers the seizure of the equipments used for operating the cable television network when the authorised officer has reason to believe that provisions of Section 3, 4A, 5, 6 or 8 have been or are being contravened by any cable operator.

19. The equipments seized under Sub-section (1) of Section 11 are liable for confiscation u/s 12.

20. Section 16 provides punishment for contravention of the provisions of the.

21. In exercise of the powers conferred upon the Central Government under Sub-section (1) of 22, of the Cable Television Networks (Regulation) Ordinance, 1994, the Central Government framed Cable Television Networks Rules, 1994. The same Rules continue to remain in operation after the enactment of Act of 1995. Rule 6 deals with the Programme Code and it reads thus :

Programme Code: (1) No programme should be carried in the cable service which-

(a) offends against good taste or decency;

(b) contains criticism of friendly countries;

(c) contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes;

(d) contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths;

(e) is likely to encourage or incite violence or contains anything, against maintenance of law and order or which promote anti-national attitudes;

(f) contains anything amounting to contempt of Court ;

(g) contains aspersions against the integrity of the President and Judiciary;

(h) contains anything affecting the integrity of the Nation;

(i) criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country;

(j) encourages superstition or blind itself;

(k) denigrates women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals;

(l) denigrates children;

(m) contains visual or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups;

(n) contravenes the provisions of the Cinematograph Act, 1952 (37 of 1952) ;

(o) is not suitable for unrestricted public exhibition.

22. Rule 7 deals with the Advertising Code which reads thus :

(1) Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers.

(2) No advertisement shall be permitted which-

(i) derides any race, caste, colour, creed and nationality;

(ii) is against any provision of the Constitution of India;

(iii) tends to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way;

(iv) presents criminality as desirable;

(v) exploits the national emblem or any part of the Constitution or the person or personality of national leader or a State dignitary;

(vi) in its depiction of women violates the Constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasises passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form in the programmes carried in his cable service is tasteful and aesthetic, and is within the well established norms of good taste and decency; (vii) exploits social evils like dowry, child marriage;

(viii) promotes directly or indirectly production, sale or consumption of

(a) cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants ;'

(b) infant milk substitutes, feeding bottle or infant foods.

(3) No advertisement shall be permitted the objects whereof are wholly or mainly of a religious or political nature; advertisements must not be directed towards any religious or political end.

(3A). No advertisement shall contain references which hurt religious sentiments;

(4) The goods or services advertised shall not suffer from any defect or deficiency as mentioned in Consumer Protection Act, 1986;

(5) No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its in-gradients has some special or miraculous or super natural property or quality which is difficult of being proved;

(6) The picture and the audible matter of the advertisement shall not be excessively "loud";

(7) No advertisement which endangers the safety of children or creates in the many interest in unhealthy practices or shows them begging or in any undignified or indecent manner shall not be carried in the cable service;

(8) Indecent, vulgar, suggestive, repulsive or offensive themes or treatment shall be avoided in all advertisements ;

(9) No advertisement which violates the standards of practice for advertising agencies as approved by the Advertising Agencies 11 Association of India, Bombay from time to time shall be carried in the cable service,

(10) All advertisements should be clearly distinguishable from the programmes should not in any manner interfere with the programme viz, use of lower part of screen to carry captions, static or moving along side the programme.

23. The crux of forensic debate before us today centred around the telecast of adult films through cable service. The moot question is whether the cable operators/cable service providers are free to telecast the certified adult films by C.B.F.C. despite the restriction in Clause (o) of Rule 6(1) that no programme shall be carried in cable service which is unsuitable for unrestricted public exhibition would cover exhibition.

24. The expression "unrestricted public exhibition" in Clause (o) is explained to have the same meaning as assigned to it in The Cinematograph Act, 1952.

25. Section 4 of the Cinematograph Act, 1952 reads thus:

4. Examination of films. - (1) Any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for a certificate in respect thereof, and the Board may, after examining or having the film examined in the prescribed manner.

(i) sanction the film for unrestricted public exhibition (Provided that, having regard to any material in the film, if the Board is of the opinion that it is necessary to caution that the question as to whether any child below the age of twelve years may be allowed to see such a film should be considered by the parents or guardian of such child, the Board may sanction the film for unrestricted public exhibition with an endorsement to that effect, or

(ii) sanction the film for public exhibition restricted to adults; or

(iia) sanction the film for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film ; or

(iii) direct the application to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition under any of the foregoing clauses ; or

(iv) refuse to sanction the film for public exhibition.

26. Clause (o) of Rule 6(1) provides that no programme shall be carried in cable service which is not suitable for unrestricted public exhibition. The expression "unrestricted public exhibition" has to be read in the light of Section 4 of The Cinematograph Act, 1952. A film which is not sanctioned by the Censor Board for "unrestricted public exhibition "obviously is not suitable for " unrestricted public exhibition." Such film, surely, on the face of restriction contained in Clause (o) cannot be carried in cable service. In other words, the films other than films having sanction of " unrestricted public exhibition" cannot be carried in cable service.

27. Mr. I.M. Chhagla and Dr. V.V. Tulzapurkar, the learned Senior Counsel for the respondent No. 4 and respondent Nos. 3 and 7 would submit that Clause (o) should not be construed in a manner that may violate the fundamental rights of the viewer. Every adult viewer has the fundamental right to view the programme having adult content on TV through cable service and the people who do not like this cannot have policing through State, they submitted. That this can be avoided if Clause (o) of Rule 6(1) and Sub-rule (5) of Rule 6 are harmoniously construed. They submitted that Sub-rule (5) provides that a programme unsuitable for children shall not be carried at times when large number of children are viewing and that is how Clause (o) of Rule 6(1) should be read.

28. We are not persuaded by the submissions of the learned senior Counsel for respondent No.4 and respondent Nos. 3 and 7, We do not find any unconstitutionality in Clause (o) of Rule 6(1). The fundamental rights guaranteed by Article 19(1) can be subjected to reasonable restrictions. Accordingly, if the law authorises restriction in carrying in cable service a programme which is not suitable for unrestricted public exhibition, there is nothing wrong in it. The adult viewer's right to view the film of adult content is not taken away by Clause (o) of Rule 6(1). Such viewer can always view the Adult certified film in Cinema Hall. He can view such film on his private TV set by means of DVD, VCD or such other mode for which no restriction exists in law. Similarly, by putting restriction upon the cable operator and the cable service provider that no programme should be carried in the cable service which is not suitable for unrestricted public exhibition, it cannot be said that such restriction violates their right to carry trade and business.

29. In so far as Sub-rule (5) is concerned, it provides that programmes unsuitable for children must not be carried in the cable service at times when the largest numbers of children are viewing. If the same meaning is to be given to the Clause (o) of Rule 6(1) then where was the occasion to insert it by way of amendment in the year 2000 because Sub-rule (5) was already there. In Clause (o) the expression "unrestricted public exhibition" has to be given the meaning as assigned to it in the Cinematograph Act, 1952 and by giving that meaning, the only conclusion that can be drawn is that no film should be carried in cable service of which public exhibition is restricted because such film cannot be said to be suitable for unrestricted public exhibition. In other words, only those films which are covered by Section 4(l)(i) of The Cinematograph Act, 1952 which have been sanctioned by C.B.F.C. for "unrestricted public exhibition" can be telecast or carried in cable service.

30. We, therefore, direct that the Cable operators and Cable Service Providers as defined in Section 2(aa) and 2(b) of the Cable Television Networks (Regulation) Act, 1995 shall not carry in cable service, the films other than the films sanctioned for unrestricted public exhibition by the C.B.F.C,

31. The Director General of Police, Maharashtra shall ensure the compliance of this order within the State of Maharashtra. It is clarified that this order is in continuation and addition to the earlier directions issued from time to time by this Court.

32. Section 11 of the Cable Television Networks (Regulation) Act, 1995 empowers the authorised officer to seize the equipment used in contravention of the provisions of Sections 3, 4A, 5, 6, 7 and 8 of the. As already noticed above, Section 5 provides that no person shall transmit or retransmit through the cable service any programme not in conformity with the prescribed programme code. The programme code is set out in Rule 6. It is, therefore imperative for the authorised officer to act u/s 11, if he has reason to believe that the provisions of Section 5 read with Rule 6 have been or are being contravened and consequent upon action u/s 11, act u/s 12 of the Cable Television Networks (Regulation) Act 1995.

33. We are informed that the Government of India, the Ministry of Information and Broadcasting has constituted a Committee for reviewing the Programme Code and Advertising code prescribed under the Cable Television Networks (Regulation) Act, 1995 and Rules framed thereunder and the guidelines for certification of Films for public Exhibition prescribed under the Cinematograph Act, 1952.

34. The terms of reference of the Committee are incorporated in the Notification dated 3rd October, 2005 which read thus :

The Terms of Reference of the Committee will be as follows :

(i) Revise and harmonize the CBFS Guidelines and the Cable Television Programme/Advertising Codes and AIR Code in accordance with contemporary community standards and the laws in force.

(ii) Amplify the provisions of the Guidelines/Codes with a view to enable the Film/TV Radio Industry to use them for self-regulation and minimize the scope of their subjective interpretation, on the lines of OFCOM/Australian codes.

(iii) examine the need and desirability of introducing a screening/broadcasting policy to ensure wholesome content for family viewing/listening.

(iv) Recommend suitable structure and procedure for self-regulation of content by the industry and other related matters.

35. Obviously, the said Committee shall go into the referential aspects. We, therefore, observe that once the report of the Committee is received by the Government of India and if the Government of India accepts it as it is or with modifications, it will be open to them to apply to the Court for modification of this order or earlier orders passed by this Court from time to time, if necessary.

36. The policy guidelines for down linking of T.V. Channels (11th November, 2005) have been placed on record. We record that in so far as the direction for framing the guidelines for down linking of T.V. Channels is concerned, that has been complied with by the respondent No. 1.

37. The affected Cable Operators and Cable Service providers shall be at liberty to apply for modification/variation of this order.

Copy of this order shall be sent to the Director General of Police, Maharashtra and the Secretary, Ministry of Information and Broadcasting, Government of India, Shastri Bhawan, New Delhi