(PRAYER: Writ Appeal No.1437 of 2006 is filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 20.03.2006 made in W.P.No.1518 of 2005.

Writ Appeal No.1438 of 2006 is filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 28.04.2006 made in W.P.M.P.No.12768 of 2006 in W.P.No.1518 of 2005.)

The Honble Chief Justice:

Kutra Pathirikai is the feature film produced by the first respondent. The film revolves around the assassination of the former Prime Minister Rajiv Gandhi and the subsequent events including the investigation and the fate of assassins or some of the abettors/conspirators. The love story woven around two police officials having no connection with the assassination of late Prime Minister or the attempted assassination of the then Chief Minister of Tamil Nadu, which forms only an infinitesimal portion of the film. After making the film, the producer submitted an application for the grant of certificate to the Central Board of Film Certification (Board for short) on 31.12.1992. However, the certificate for exhibition of the film was refused by the Censor Board on 31.02.1994 and that too, after the intervention of this Court. It would be relevant to quote the reasons by the Examining Committee (for trailer) as per the expert opinion of the Home Ministry which run as follows:

As the criminal case pertaining to the assassination of late Prime Minister Shri Rajiv Gandhi is sub-judice and the proceedings of the Jain Commission and report of Verma Commission are yet to be finalized, it would not be in the judicial and public interest to permit the release of any Trailer/Film on the assassination of late Prime Minister. After the finalisation of the criminal case, the Enquiry Commissions report, the certificate of the film could be considered subject to the scrutiny of the script and preview of the film from the public interest angle.

2. On such refusal, the producer preferred an appeal under Section 5C of the Cinematograph Act, 1952, which was allowed by the Film Certification Appellate Tribunal vide order dated 27.06.1994, directing the Board to grant A certificate subject to such cuts/deletions as mentioned in para 17 of the said order. The producer accepted the said cuts and thereafter submitted the fresh print of the film on 25.07.1994. The Board, instead of considering the film, for the grant of certificate as directed by the Tribunal, chose to challenge the order dated 27.06.2004 by filing Writ Petition No.13652 of 1994 on the ground that the impugned order is erroneous in law and certificate for exhibition of the film should not be granted. A Division Bench of this Court in its detailed order dated 06.10.2004 allowed the writ petition and set aside the order of the Tribunal dated 27.06.1994 and directed to revoke the certificate ordered by the Tribunal.

3. Questioning the same, the producer preferred appeal before the Supreme Court and the same was disposed of vide order dated 06.09.2000 by modifying the order of the High Court with a direction to the Tribunal to re-consider the matter in the light of the order passed by the Supreme Court and the relevant observations of the Supreme Court read as follows:

When the case was taken up, Mr.Soli S.Sorabjee, learned Attorney General, appearing for the respondent stated that there has been a material change after the judgment of the High Court in two respects. First, the trial of the accused in the Rajiv Gandhi assassination is over and the second is that the Jain Commission has also submitted its report and therefore, these two grounds were not available at that moment. However, with regard to the other aspects, the reasons referred to by the High Court, especially in paragraphs 3 and 4 at page No.95, are factually correct and exists and the tribunal may be directed to reconsider the matter in the light of subsequent events that have taken place.

4. The Tribunal, therefore, again heard the appeal preferred by the producer on 16.02.2001 which at that time consisted of the Chairperson and two members only (whereas the strength of the Tribunal is 5 including the Chairperson). The Chairperson on considering all aspects of the matter and previous judgments and orders opined on his behalf grant of A certificate to the film for exhibition subject to further 9 cuts/deletions of some of the so called objectionable dialogues which would remove the only remaining objection raised earlier by the Board i.e., that the film tends to glory the banned organization LTTE. So far as other objection that it tends to create sympathy to LTTE is concerned, the same was rejected as in his opinion, there is nothing in the film, which could lead to such an inference. However, the other two members of the said Tribunal disagreed with the opinion of the Chairperson and by their separate orders opined refusal of certificate.

5. The producer aggrieved by the majority view of the Tribunal again approached this Court primarily on the ground that the learned members of the Tribunal have erred in holding that the film depicts the ideology of the banned organization LTTE whereas on the contrary, it only depicts the historical event of the assassination of the former Prime Minister Rajiv Gandhi with the theme that the persons involved in terrorism perished and could not succeed. A learned single Judge of this Court vide his judgment and order dated 08.02.2005 noted that both the grounds 3 and 4 mentioned in the order of the Division Bench have been considered by the Chairperson and findings are rendered, but the other two members have not even considered those grounds and the reasons given by the individual members for rejection of certificate are not supported by any material, more particularly vis--vis the reasons given by the Chairperson. The learned single judge, therefore, remitted the matter back to the Tribunal for re-consideration by entire 5 members in respect of grounds mentioned in paragraphs 3 and 4 of the order of the Division Bench. At the time when the order was passed it was represented that the Tribunal by then comprised of 5 members and that at an earlier point of time, only three members had viewed the film. Subsequently, in W.P.M.P.No.16095 of 2005 by order dated 22.09.2005 the learned single Judge directed the Tribunal to pass order by the 4 members, as by the time there were only 4 members.

6. Consequent upon the aforesaid order, the film was screened in Delhi and all the four members of the Tribunal viewed the film along with the Regional Officer of the Board. By order dated 15.12.2005, the Chairperson allowed the appeal and directed the Board to issue A certificate to the present edited version of the film as seen by the Tribunal. The Chairperson noted that in the past one decade various clipping/episodes of assassination of former Prime Minister Rajiv Gandhi have been shown on television innumerable times. The print media has also published the pictures in different magazines etc. Moreover, the Information and Broadcasting Ministry itself has cleared a documentary on some of the activities of LTTE as also on the same incident of assassination of the former Prime Minister Rajiv Gandhi. The Regional Officer of the Chennai Region, representing the Board, admitted making of a documentary film by the Information and Broadcasting Ministry on the same incident viz., assassination of Rajiv Gandhi and stated that there is nothing objectionable in this film in its edited form. One of the members also agreed with the Chairperson. However, the remaining two members rejected the appeal and gave their separate opinion. In view of the division of opinion amongst the four members in the ratio of 2:2, the Chairperson by order dated 15.12.2005 directed as follows:

Since two of my worthy colleagues differ with my opinion and are of the view that this film should not be certified for exhibition, therefore, the opinion being divided amongst us 2:2. In this situation, it is open to both the parties to take such steps as are open to them in law.

7. In the above circumstances, the producer again approached this Court questioning the order of rejecting the appeal. The learned single Judge upon viewing the film opined that the film should be granted A certificate subject to certain cuts and deletions. The learned single Judge found that the events that the film depicts are more or less factually correct about the ghastly incident. In his opinion, a film that narrates the events that had happened and was established in the Court of law could be screened as it would only enable the public to satisfy their genuine desire to know as to how their mass leader was assassinated and the screening of the film cannot be refused merely because the assassination was carried by a banned organization. On the other hand, the people will have an opportunity to know the activities of the banned organization and such information to the public would be in their own interest. The learned Judge, however, directed to cut and delete sequence relating to the attempt made by the outfit on the life of the Chief Minister of Tamil Nadu Ms. J. Jayalalithaa and the consequent sequence showing the character Ramakrishnan saving her life and in the event, the said cuts and deletions are made, the Board shall issue A certificate to the film Kutra Pathirikai to enable the producer to release the film for public exhibition.

8. In terms of the order passed by the learned single Judge, the producer has cut and deleted the sequence relating to the attempt made by outfit on the life of the Chief Minister of Tamil Nadu and filed an affidavit before the learned single Judge praying that the Regional Officer of the Board may be directed to consider the Annexures A and B attached to the affidavit. In the light of the affidavit filed by the producer, the learned Judge modified his order in following terms:

Though the prayer in this Petition for one of modification, in my opinion, the direction in para 18 of the order can be clarified in the light of the affidavit filed in support of the above petition. Accordingly, while the 2nd respondent before the issue of A certificate to the film in question, shall also take into consideration of the cut and deletions made pursuant to the orders of this Court, more particularly, Annexures A and B of the affidavit filed in support of the modification petition. In this regard, the petitioner is at liberty to file a copy of the affidavit of the petitioner as well, the annexures A and B to the 2nd respondent for his consideration. The petition is ordered accordingly. No costs.

9. Questioning the orders of the learned single Judge, present two appeals have been filed by the Central Board of Film Certification.

10. After hearing the learned counsel appearing for the parties for some time, we thought it fit to watch the film. Accordingly, screening of the film was arranged. We have witnessed the film. Learned counsel appearing for the parties were also present. The appellant Board thereafter filed an affidavit on 27.11.2006 enumerating its objections to the film.

11. Learned Additional Solicitor General, appearing for the appellant submitted that the film even though seems to be a commercial film, inextricably mixed fiction with historical facts, the overall aim seems to support, if not, eulogize the cause of LTTE and denigrating some Indian political parties opposed to the banned organization. He submitted that the movie depicts meticulous planning and exposes the modes operandi of LTTE in achieving their terrorist objective giving encouragement to its sympathizers in Tamil Nadu and elsewhere, showing the success of their mission in India. Learned Additional Solicitor General also referred to certain scenes, which according to him, would incite violence affecting public order and also the relations with a foreign State viz., Sri Lanka. On the other hand, Mr. Muthukumaraswamy, learned Senior Counsel appearing for the producer submitted that the free expression guaranteed under our Constitution extends even for the medium of movies. Learned counsel argued that the opinion on the effect of the film should not be rested on isolated passages disregarding the main theme and its message. The film should be judged in its entirety from the point of its overall impact on the public. The writings of the film must be considered in a free, fair and liberal spirit in the light of the freedom of expression guaranteed under our Constitution. Learned Senior Counsel submitted that the apprehension of the Board that the film would support LTTE and the certification of such film would incite violence and might affect the relations with a foreign country is absolutely imaginary and baseless. Learned counsel submitted that since more than 15 years have lapsed from the date of incident and the incident has become a history and there is nothing in the film which could be objected to on any of the grounds permissible under Article 19(2) of the Constitution.

12. Freedom of expression and speech has been recognized as one of the pre-eminent rights in a democratic government, the touchstone of individual liberty. Justice Cardozo of the US Supreme Court characterized it as the matrix of the indispensable condition of nearly every other form of freedom. Article 19(1)(a) of the Constitution of India 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. In S. Rangarajan Vs. P.Jagjivan Ram, (1989) 2 SCC 574 [LQ/SC/1989/198] , the Supreme Court held that movie is the legitimate and the most important medium in which issues of general concern can be treated. The producer may project his own message which the others may not approve of. But, he has a right to think out and put the counter appeals to reason. It is a part of a democratic give-and-take to which no one could complain. The State cannot prevent open discussion and open expression, however, hateful to its policies. While dealing with the role of the courts in striking a balance between the interest of freedom of expression and social interest, the Court observed: (SCC p.595 para 45)

The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a spark in a power keg.

13. In Indian Express Newspapers Vs. Union of India, AIR 1986 SC 515 [LQ/SC/1984/332] , the Supreme Court emphasized that in a democratic society, people have a right to be informed of developments that take place in the democratic process. In Odyssey Communications Private Limited Vs. Lokvidayan Sanghatana, AIR 1988 SC 1642 [LQ/SC/1988/335] , the telecasting of the serial Honi Anhonee was sought to be restrained on the ground that it was likely to spread blind beliefs and superstitions. The Supreme Court vacated the injunction which was granted by the High Court holding that the right of a citizen to exhibit a film on television would be curtailed only in the circumstances set out in Article 19(2) of the Constitution. In S. Rangarajan Vs. P.Jagjivan Ram, cited supra, the High Court had revoked a certificate for unrestricted public exhibition granted by the Censor Board to a film whose theme was the reservation policy. Reversing the decision, the Supreme Court held that the State couldnt prevent open discussion and open expression; however, hateful it may be to its policies. Restrictions on the freedom of expression under Article 19(2) must be justified on the unveil of necessity and not on the quicksand of convenience or expediency. In LIC Vs. Manubhai D.Shah, AIR 1993 SC 171 [LQ/SC/1992/447] , the telecasting of a documentary film on the Bhopal Gas Disaster was in issue. Confirming the judgment of the High Court directing Doordarshan to telecast the documentary, the Supreme Court held that the print media, the radio and television are vital public educators in a democracy, the freedom to air ones views is the lifeline of every democratic institution and any attempt to stifle, suffocate or gag this right would be inconsistent with a democratic set up.

14. In K.A. Abbas Vs. Union of India, 1970 (2) SCC 780 [LQ/SC/1970/382] , after noting that the task of the censor is extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination, the Supreme Court observed that our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationship as banned in toto for ever from human thought and must give scope for talent to put them before society. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth.

15. In Ramesh Vs. Union of India, 1988 (1) SCC 668 [LQ/SC/1988/124] , a petition was filed under Article 32 of the Constitution of India before the Supreme Court for a writ, restraining the Union of India and Doordarshan from telecasting a serial entitled Tamas. The film depicted the violence, killing and looting that took place between the Hindu and Muslim communities during partition. The Supreme Court noted that the film depicted the period prior to partition and how the communal violence was generated by fundamentalists and extremists in both the communities. Before the Supreme Court it was argued that there was a real danger that the film would incite people to violence and to commit other offences arising out of communal disharmony. Rejecting the submission, the Supreme Court held thus: (SCC p.680 para 21)

But the argument overlooks that the potency of the motion picture is as much for good as for evil. If some scenes of violence, some nuances of expression or some events in the film can stir up certain feelings in the spectator, an equally deep strong, lasting and beneficial impression can be conveyed by scenes revealing the machinations of selfish interests, scenes depicting mutual respect and tolerance, scenes showing comradeship, help and kindness which transcend the barriers of religion. Unfortunately, modern developments both in the field of cinema as well as in the field of national and international politics have rendered it inevitable for people to face the realities of internecine conflicts, inter alia, in the name of religion. Even contemporary news bulletins very often carry scenes of pitched battle or violence. What is necessary sometimes is to penetrate behind the scenes and analyse the causes of such conflicts. The attempt of the author in this film is to draw a lesson from our countrys past history, expose the motives of persons who operate behind the scenes to generate and foment conflicts and to emphasise the desire of persons to live in amity and the need for them to rise above religious barriers and treat one another with kindness, sympathy and affection. It is possible only for a motion picture to convey such a message in depth and if it is able to do this, it will be an achievement of great social value. In the present case the finding of the learned Judges of Bombay High court is that the picture viewed in its entirety, is capable of creating a lasting impression of this message of peace and co-existence and that people are not likely to be obsessed, overwhelmed or carried away by the scenes of violence or fanaticism shown in the film. We see no reason to differ from this conclusion.

16. In Bobby Art International Vs. Om Pal Singh Hoon, AIR 1996 SC 1846 [LQ/SC/1996/917] the Supreme Court held that a film that illustrates the consequences of a social evil necessarily must show that social evil. 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. Dealing with the theme of the film, the Court held thus: (AIR para 24)

First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinema goers lust but to arouse in him sympathy for the victim and disgust for the perpetrators.

Bandit Queen tells a powerful human story and to that story the scene of Phoolan Devis enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: her rage and vendetta against the society that had heaped indignities upon her.

17. Applying the above basic principles laid down by the Supreme Court and for reasons to be stated hereinafter, we are of the view that the decision of the learned single Judge ordering grant of A certificate to the film does not require any interference.

18. The film Kutra Pathirikai is an intermingling of fact and fiction. The former being the events leading to the assassination of the late Prime Minister Rajiv Gandhi, the assassination itself and its aftermath. The producer has attempted to place before the public the true account of what has passed into history. He has done no more and no less than what has already been done by different organs of the media, national and international. The producer tells his audience without embellishment what in a democracy is the right of the audience and the general public viz., the right to be informed and the right to know, which are vital in a democratic set up. Each and every piece of evidence depicted in this film is a matter of public record and public knowledge. The overall impression that this film would create in a normal and average mind would be a revulsion and abhorrence of the assassination coupled with the resolve that history such as this shall not repeat itself. The fact that film depicts the assassination of former Prime Minister by itself cannot and should not be a ground for rejection, more so, when the entire investigation and the trial of the case if over. The protection of the Constitution does not extend only to fictional depictions of artistic themes. Artists, film makers and play writers are affirmatively entitled to allude to incidents which have taken place and to present a version of those incidents which according to them represents a balanced portrayal of social reality. The choice is entirely of the film maker. Critical appraisal is the corner-stone of democracy and the power of the film as a medium of expression lies in its ability to contribute to the appraisal.

19. The objection of the Board that the film supports the banned organization is completely baseless and imaginary. On the other hand, the film clearly depicts the cruel and inhuman behaviour of the activists of the banned organization. It also shows that the assassination of Rajiv Gandhi is approved by none. Further, the film gives a clear and unambiguous message that terrorism does not pay, that the arms of law and order machinery are too strong and that those who kill have ultimately to meet with death. There has been shown nothing in the film from which it could be inferred that the LTTE has been glorified or attracts the sympathy of the public.

20. The Regional Officer, CDFC, Chennai in his affidavit dated 27.11.2006 has raised the following objections:

The scenes such as Sivarasan uttering that even though their friends in Tamil Nadu were helpful any sympathetic to them should not be aware of the original plan. In case they come to know that, they will not keep quiet and will go against them.

The scene of dry run of Rajiv Gandhis assassination shows meticulous planning and exposes the modus operandi of the LTTE in achieving their terrorist objective.

The discussion between the DG and the Assistant Commissioners including the suspended Assistant Commissioner Arun and the Congress Leaders suggest/attributes motives to the Congress leaders role in the assassination of Ex-Prime Minister.

Discussion between Assistant Commissioner Ramakrishnan and his wife regarding the death of captured LTTE sympathizer Shanmugam as to whether it is suicide or murder attributes ill motives/design of Tamil Nadu Police.

It has been established through visuals and dialogues that Assistant Commissioner Ramakrishnans wife was a close friend of the photographer Haribabus younger sister.

Even though the Honble Justice D.Murugesans original order dated 20.03.2006 quite clearly directed that LTTEs attempt on the life of the then Chief Minister Jayalalithaa, even though fictional, should be deleted, in the modified order dated 28.04.2006, they have identified only the commentary text to be deleted in the form of Annexures A and B which has been complied with by the producer. However, the visuals showing living personalities quite clearly convey the attempt of LTTE on the life of Ex-Chief Minister Jayalalithaa which will invoke sympathy for the former Chief Minister in the minds of the public.

Still the overall impression is that the film is a sugar coated capsule with commercial and fictional elements to assist and support, if not eulogize the modus operandi of the LTTE, a banned organization giving encouragement to its sympathizers in Tamil Nadu and elsewhere showing the success of their mission in India.

In view of the escalation of conflicts in Sri Lanka between LTTE and the Sri Lankan Government any view to portray the LTTE fro whom still there are some sympathizers in Tamil Nadu and elsewhere would only incite violence which would affect public order and also the relations with foreign States viz., Sri Lanka.

Though the film ends with the so-called message No more violence the result of trial of Rajiv Gandhi murder case had not been shown, particularly when the certificate to the film is required to be considered in view of the fact that the trial of Rajiv Gandhi assassination was over.

21. We find absolutely no merit in any of the objections raised by the Regional Officer, CDFC, Chennai. Objections (i), (iv) and (v) need to be stated only to be rejected. The scene where Sivarasan says that even though their friends in Tamil Nadu were helpful and sympathetic to them should not be aware of the original plan and in case they come to know that they will not keep quiet and will go against them, on the other hand, shows the love of the people of Tamil Nadu for the late Prime Minister. Objections (iv) and (v) can hardly constitute a ground for refusal of certificate. The objection number (vi) that the visual showing of the attempt of the LTTE on the life of the Ex-Chief Minister Jayalalithaa will invoke sympathy for the former Chief Minister in the minds of the public merely shows the rank of political partisanship on the part of the authorities. Objection numbers (vii) and (viii) have been dealt with by us earlier and in our considered opinion the fear expressed by the Board that the film would incite violence which would affect public order and also the relations with a foreign State viz., Sri Lanka is totally imaginary and baseless. As earlier noted by us the Regional Officer, who participated before the Tribunal, has categorically stated that there is nothing objectionable in the film in its edited form. As regards the last objection that the result of trial of Rajiv Gandhis murder case has not been shown, it needs to be remembered that the film was made long before the commencement of trial. The other objection that the film shows meticulous planning and highlights the modus operandi of the LTTE in achieving their terrorist objective also does not hold water. In fact, it is brought to our notice that Mr. Reghupathi who investigated the assassination of Rajiv Gandhi has produced a documentary titled as The Human Bomb which extensively contains the activities of the LTTE in Sri Lanka and India and also the minute details of the assassination of the former Prime Minister and the said film has been certified by the authorities. It is needless to state that the film is required to be viewed as a whole. As observed by Vivian Bose, J. as he then was in the Nagpur High Court in the case of Bhagwati Charan Shukla Vs. Provincial Government, AIR 1947 Nagpur 1 that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. This approach has been time and again accepted by the Supreme Court in judging the effect of exhibition of a film or publication of a book.

22. In our opinion, it is doubtful whether these appeals are maintainable, in view of the decision of the Supreme Court in Union of India Vs. K.M.Shankarappa, 2001 (1) SCC 582 [LQ/SC/2000/1835] . It is rather unfortunate that the certification of the film has been delayed for more than 12 years without any acceptable and reasonable ground. In our opinion, there is nothing objectionable even in the last sequence in the film showing the attempt on the life of the former Chief Minister of Tamil Nadu by the LTTE Organisation. It has to be stated that the film ends with the message no more violence. Consequently, we modify the order of the learned single Judge to that extent and direct the Censor Board to grant A certificate to the present edited version of the film within a period of four weeks from today.

23. The writ appeals are dismissed. Consequently, connected miscellaneous petitions are closed.