CASE ANALYSIS

Case Summary and Outcome

The Supreme Court of India set aside the decision of the Delhi High Court which had restrained
the screening of the movie “Bandit Queen, holding that the screening of a film cannot be
prohibited merely because it depicts obscene and graphic events. The producers of the film,
which told the true story of a woman who was raped and brutalized before taking revenge on her
attackers, had approached the Court seeking the reinstatement of the classification of the film as
“Adult only”. The Court held that the scenes featuring nudity and expletives served the purpose
of telling the important story and that the producers’ right to freedom of expression could not be
restricted simply because of the content of the scenes.

Facts

In 1994, Bobby Art International, a film production company, made a film titled “Bandit Queen”
which was based on a true story about a village girl who was raped and brutalized, and who
subsequently became a member of a violent criminal gang as a means of revenging herself upon
society. The film was based on the book about the incident written by Mala Sen. The film
contained explicit scenes of rape and nudity. In July 1995, the Censor Board indicated that it
would grant the film an “A” certificate (films considered suitable for exhibition restricted to
adults only) in terms of the Cinematograph Act, 1952 (the Act) but only on the condition that
certain scenes were deleted or modified.

The Act stated that “a film shall not be certified for public exhibition if, in the opinion of the
authority competent to grant the certificate, the film or any part of it is against the interests of,
inter alia, decency”. In addition, in 1991 the Indian Government had issued guidelines in terms
of the Act which stipulated that film certification must ensure that “artistic expression and
creative freedom are not unduly curbed” and that “certification is responsive to social change”.
The guidelines also obliged the Censor Board to ensure that “human sensibilities are not
offended by vulgarity, obscenity or depravity” and that “scenes involving sexual violence against
women like attempt to rape, rape or any form of molestation or scenes of a similar nature are
avoided” and should be kept to a minimum if absolutely necessary.

As a result of the condition that certain scenes be deleted or amended, the order of the Censor
Board was appealed to the Appellate Tribunal (the Tribunal). The Tribunal held that the
impugned scenes and the use of vernacular slurs was permissible and added that “to delete or to
reduce these climactic visuals would be a sacrilege.” By a unanimous order of the Tribunal, an
“A” certificate was granted to the film without requiring deletion or modification of any scenes.

The film was first screened on August 31, 1995 at a film festival and was opened for public
viewing on January 25, 1996. Om Pal Singh Hoon, a member of the specific community
portrayed in the film, filed a petition before the Delhi High Court seeking the quashing of the
“A” classification and a restraint on the exhibition of the film in India on the grounds that the
portrayal of the main character was “abhorrent and unconscionable and a slur upon the
womanhood of India.” He also claimed that the film portrayed his community in a depraved way
and lowered his self-respect. Hoon submitted that his rights under articles 14 (right to equality),
19 (right to freedom of expression) and 21 (right to life and personal liberty) of the Constitution
had been infringed.

The Court of first instance quashed the “A” classification, and ordered the Censor Board “to
consider the grant of an ‘A’ certificate to it after excisions and modifications in accordance with
his order had been made”. In addition the Court granted an injunction against the screening of
the film until a fresh certificate had been issued. Bobby Art appealed to the Division Court which
upheld the judgment of the Court of first instance, holding that “the scene of violent rape was
disgusting and revolting and it denigrated and degraded women” and that the scenes of nudity
were “indecent”.

Bobby Art then petitioned the Supreme Court.

Decision Overview

Bharucha J delivered the judgment of the two-judge bench of the Supreme Court. The central
issue before the Court was whether the graphic nudity and obscenity in the film was a sufficient
reason to justify the infringement of Bobby Art’s freedom of expression.

Bobby Art International argued that the Tribunal was the expert body in this regard and had
determined that the film was appropriate. The film company emphasized that three of the four-
member panel of the Tribunal were women and that they had not found the film offensive.

Hoon submitted that the courts below had been correct in quashing the certificate and prohibiting
the screening of the film because the film was abhorrent. He argued that the film violated his
own freedom of speech and expression.

Bharucha referred to the 1970 Indian case of Abbas v. Union of India where the Chief Justice
Hidayatullah held that “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 with some of its foibles along with what is good”. In that case, the Chief
Justice had noted that it would be an error to conflate sex and obscenity as “it is wrong to
classify sex as essentially obscene or even indecent or immoral.” He had noted that it was not the
“elements of rape, leprosy, sexual immorality” that should be censored but rather that “how the
theme is handled by the producer” determines the need for restriction.

Bharucha also referred to the 1980 Supreme Court case of Raj Kapoor v. State, the 1985
Supreme Court case of Samaresh Bose v. Amal M, and the 1962 Supreme Court case of State of
Bihar v. Shailabala Devi and noted that these cases had emphasized that vulgar writing is not
necessarily obscene and that consideration must be given to the writing as a whole (rather than
isolated passages or scenes).
With reference to the 1962 Supreme Court case of Sakal Papers v. Union of India and the 1992
Supreme Court case of Life Insurance Corporation of India v. Manubhai, Bharucha stressed that
the only permissible restrictions to the right to freedom of expression protected by article 19 of
the Constitution are those permitted by article 19 itself. Bharucha confirmed that the guidelines
given to the Censor Board are “broad standards” and that “[w]here the theme is of social
relevance, it must be allowed to prevail”.

In applying the jurisprudence and guidelines to the present case, Bharucha commented that
“Bandit Queen” “tells a powerful human story”. He held that the scene in which the main
character is humiliated by being stripped naked and paraded around could not have had its
intended effect in any manner other than by explicitly showing the scene depicting her
humiliation. He added that, in this film, “[r]ape and sex are not being glorified” but are used to
focus on the “trauma and emotional turmoil of the victim to evoke sympathy for her and disgust
for the rapist”. In addition, Bharucha noted that the expletives used in the movie were commonly
used and “no adult would be tempted to use them because they were used in the film”.

Bharucha referred with approval to the exampled provided by the Tribunal which had compared
this film to “Schindler’s List” in which nudity was used to tell the story and demonstrate the
stripping of the characters’ dignity.

In conclusion, Bharucha held that the message of a serious film should be recognized and the test
to be applied was whether the individual scenes advance the film’s message. If the scenes did
advance the message Bharucha held that the scenes should not be censored and that a certificate
of an “A” rating would be sufficient caution as adult citizens could be “relied upon to
comprehend intelligently the message and react to it”. He reiterated that “a film illustrating the
consequences of social evils must necessarily show that social evil”, and that “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”. The Judge also stressed that the determination of whether the manner in which
the social evil is depicted is necessary to tell the story should be left to the experts within the
Tribunal.

Bharucha acknowledged that in this case the majority of the Tribunal’s members were women
and that it should not be supposed that “three women would permit a film be screened which
denigrates women, insults India womanhood or is obscene or pornographic”.

Accordingly, the Court held that the Tribunal’s classification of the film as “A” was appropriate
and that the lower Courts did not adequately consider that the use of nudity and expletives was
simply to further the telling of the story. The Court set aside the High Court’s order and
reinstated the Tribunal’s “A” classification.