July-August 2011 witnessed a lot of debate, both in the media and amongst the general public, surrounding the Bollywood commercial movie ‘Aarakshan’. ‘Aarakshan’ translates to ‘Reservation’, referring to the policy of Indian government to provide reservations in education and employment to sections of identified, socially backward classes of the country.

Debates on Reservations have always been emotional and contentious. Even before the movie ‘Aarakshan’ could be released, it became widely perceived as an ‘anti-reservation’ movie. Uttar Pradesh (UP), Punjab and Andhra Pradesh banned screening of the movie within their states.

The producers of the film filed a Writ Petition before the Hon’ble Supreme Court seeking, among other reliefs, a relief to quash and set-aside the decisions of these 3 states to suspend screening of the film. The counsels appearing for Punjab, and Andhra Pradesh informed the court that the respective state governments had withdrawn the order of suspension of screening of the film, and accordingly, the petition in so far as those two states are concerned, was rendered infructuous.  The state of UP, however, filed a counter-affidavit and opposed the petition.

After hearing the parties, the Hon’ble Supreme Court passed its order in favour of the petitioners on August 19, 2011 in Prakash Jha Productions & Anr. Vs. Union of India & Others – (2011) 8 SCC 372. Here, we take a look at the contentions raised and the observations of the Supreme Court in this matter, which are very helpful in trying to understand the law governing such situations.

The factual matrix of the case, as it emerged before the court, are as below:

1. The film was submitted to the Central Board of Film Certification (CBFC) for certification, whereupon, the Chairperson of the Board, invited the legal expert, and another expert who is related to Dalit movement, to watch the film at the time when the Examining Committee was previewing the film.
2. The Chairperson also saw to it that all the 4 members of the Examining Committee are members belonging to the SC/ST and OBC category.
3. The said members of the Examining Committee, along with the legal expert and the expert related to Dalit movement, were present during the preview of the film, and they gave their approval for grant of censorship certificate and screening of the film.
4. A view was expressed by the members of the Examining Committee for deletion of the word ‘Dalit’ from the trailer, which was deleted by the producer of the film.
5. Thereafter, the certification was granted and a certificate was issued for screening of the film. Pursuant to the grant of the above certificate, the film was screened all over India except UP, where it was not exhibited in view of the impugned decision of the state government to suspend screening of the film, which was taken in purported exercise of power conferred under Section 6 of the UP Cinemas (Regulation) Act, 1955 (Act).

Section 6 of the Act read as:

“6. Power to the State Government or District Magistrate to suspend exhibition of films in certain cases –

(1) The State Government, in respect of the whole of the State of Uttar Pradesh or any part thereof, and the District Magistrate in respect of the district within his jurisdiction, may, if it or he, as the case may be, is of opinion that any film which is being publicly exhibited, is likely to cause a breach of the peace, by order, suspend the exhibition of the films and thereupon the films shall not during such suspension be exhibited in the State, part or the district concerned, notwithstanding the certificate granted under the Cinematograph Act, 1952.” 

On behalf of the petitioners, it was argued that:

1. The exercise of power of suspension of the film amounts to exercising, by the state government, the power of pre-censorship, although no such power is vested in it. The said power of censorship is vested in the CBFC, and in the central government as provided for in the provisions made in the Cinematograph Act, 1952.
2. The power that is sought to be exercised under Section 6(1) of the Act is without jurisdiction as such power could be exercised only when a film is being screened and shown in the public hall and also when a contingency of the nature as mentioned in the said section arises.
3. The decision of the state government is in violation of the provisions of Article 19(1) of the Constitution, and therefore is required to be struck down and quashed.

Though the petitioners also sought a relief in the pleadings to strike down the provision of Section 6(1) of the Act as being ultra vires to the Constitution, the counsel for petitioners, at the time of hearing, did not press for that prayer, and on their submission, the Court has kept the said issue open to be agitated in an appropriate case in future.

On behalf of the state of UP, it was submitted that a High-Level Committee had seen the film and thereafter had given an opinion that if and when the film is shown, there is likelihood of breach of peace and also breach of law and order situation, and therefore, a decision to suspend the screening of the film was taken to preserve and upkeep the law and order situation in the state.

The court placed emphasis on the expression ‘being publicly exhibited’ and the word ‘suspension’, that appear in the text of the Section 6 of the Act, and observed that:

1. The power vested under Section 6 of the Act could be exercised by the state only when a film which is being publicly exhibited could likely cause a breach of peace. Only in such circumstance and event, an order could be passed suspending the exhibition of the film.
2. The power cannot be exercised with regard to a film which is yet to be exhibited openly and publicly. Also, ‘suspension’ envisages something functional or something which is being shown or is running.
3. Therefore, the power vested under Section 6 of the Act could not have been exercised in view of the fact that the film was not being exhibited publicly in the theatre halls in UP.
4. The film was being screened in other states peacefully and smoothly, including those states which are also similarly sensitive as UP.
5. The power of pre-censorship is not available to state governments, and they cannot sit over and override the decision of the CBFC by proposing deletion of some portion of the film.

An attempt to define the screening before the High-Level Committee as public screening was also rejected by the court.

The court also placed reliance on its decision in Union of India Vs KM Shankarappa – (2001) 1 SCC 582, wherein it was held that once an expert body has considered the impact of the film on the public and has cleared the film, it is no excuse to say that there may be a law and order situation. It is for the State Government concerned to see that the law and order situation is maintained. The court reiterated that it is the responsibility of the State Government to maintain law and order, and once the CBFC has cleared the film for public viewing, screening of the same cannot be prohibited in the manner as sought to be done by the state of UP in the present case.

The Court finally allowed the petition in part, setting aside and quashing the decision of the state of UP in suspending the screening of the film.

The order of the Supreme Court in the above case makes it clear that the power of pre-censorship is clearly vested only with the CBFC and the Central Government, and that it is the responsibility of the state government to maintain law and order. It is hoped that all state governments would take notice of this ruling, and ensure that the authority of CBFC is not undermined in any manner by their actions in similar situations in future.