No doubt, the cinema is a great instrument for public good if geared to social ends and can be a public curse if directed to anti-social objectives. The freedom of expression, the right to be equally treated and the guarantee of fair hearing before heavy investments in films are destroyed belong to Indian citizens under the Constitution. But all freedom is a promise, not a menace and, therefore, is subject to socially necessary restraints permitted by the Constitution.
Having regard to the motion picture, its versatility, realism, and its coordination of the visual and aural senses, what with the art of the cameraman with trick photography, vista vision and three dimensional representations, the celluloid art has greater capabilities of stirring up emotions and making powerful mental impact so much so the treatment of this form of art on a different footing with pre-censorship may well be regarded as a valid classification, as was held in K.A. Abbas. K.A. Abbas v. The Union of India and Anr.
The power of Censor Board
Maybe, art cannot be imprisoned by the bureaucrat and aesthetics can be robbed of the glory and grace and free expression of the human spirit if governmental palate is to prescribe the permit for exhibition of artistic production in any department, more so in cinema pictures.
So it is that a special legislation viz. the Act of 1952, sets up a Board of Censors of high calibre and expertise, provides hearings, appeals and ultimate judicial review, pre-censorship and conditional exhibitions and wealth of other policing strategies.
In short, a special machinery and processual justice and a host of wholesome restrictions to protect State and society are woven into the fabric of the Act.
After having elaborately enacted such a legislation can it be that a certificate granted under it by expert authority can be stultified by a simple prosecution or a shower of prosecutions for an offence, driving the producer to satisfy a ‘lay’ magistrate that the certificate of the Board of Censors notwithstanding, the film was offensive?
The Board under Section 5B has to consider certain guidelines before certification of the film. Indeed, neither the Penal Code nor the Cinematograph Act can go beyond the restrictions sanctioned by Part III of the Constitution and once the special law polices the area it of pro tanto out of bounds for the general law.
If the Board blunders, the Act provides remedies. We are sure the public-spirited citizen may draw the attention of the agencies under the Act to protect public interest.
If, as here, the Board of Censors, acting within their jurisdiction and on an application made and pursued in good faith, sanctions the public exhibition, the producer and connected agencies do enter the statutory harbour and are protected because Section 79 (mistake of fact) exonerates them at least in view of their bona fide belief that the certificate is justificatory.
Thus the trial court when it hears the case may be appropriately apprised of the certificate under the Act. Therefore, It is right for the court to discharge the accused and a magistrate cannot hold the release of the movie if a movie is certified by the censor board.
Reference
Raj Kapoor vs Laxman, AIR 1980 SC 605, 1980 CriLJ 436, (1980) 2 SCC 175, 1980 2 SCR 512, 1980