REPORTABLE  

 IN THE SUPREME COURT OF INDIA  

 CIVIL ORIGINAL JURISDICTION  

 WRIT PETITION (CIVIL) NO. 129 OF 2018  

 Adarsh Cooperative Housing Society Ltd.  …Petitioner(s)                                      Versus  

 Union of India & Ors.         …Respondent(s)  

 J U D G M E N T  

Dipak Misra, CJI    

The petitioner, a registered society, has preferred this  

petition under Article 32 of the Constitution of India seeking  

appropriate directions for prohibiting the respondent Nos. 4 to  

7 from releasing/screening/publishing feature film, namely,  

„Aiyaary‟ with direct or indirect references to the petitioner  

society's land/building/membership, for such an action is  

bound to affect the Right to Life under Articles 14 and 21 of  

the Constitution. It is also prayed that the said respondents  

should be commanded to delete all those parts in the ensuing  

feature film which has direct or indirect references to the

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society in question.  

2. It is contended by Mr. Sanjay R. Hegde, learned senior  

counsel for the petitioner, that the film, which is going to be  

released, has projected the society in an unacceptable manner  

and that is likely to have some impact on the litigations which  

are pending apart from affecting the reputation of the  

members of the society. A newspaper article has been brought  

on record to highlight how the script has been written and  

how the dialogues have the innuendos to reflect on the image  

of the society as well as its members.  Learned senior counsel  

has highlighted that the members of the society have built a  

reputation which is very dear to their life and if the film is  

allowed to be released, the same shall destroy the established  

reputation and the posterity will remember the image  

projected in the film but not the real image which the  

members have.  According to Mr. Hegde, the “reel reflection”  

will garner the mindset of the people rather than the “real life  

lived”.  

3. It is not in dispute that the film „Aiyaary‟ has already  

been given the requisite certificate by the Central Board of

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Film Certification (for short „CBFC‟) under the Cinematograph  

Act, 1952 (for brevity, „the Act‟) and the said Board has also  

taken the suggestions from the competent authorities of the  

Army as a measure of caution.  There can be no shadow of  

doubt that the Censor Board can grant a certificate and in the  

said decision making process, it can also consult the persons  

who can assist it to arrive at the condign conclusion. We do  

not intend to name the number of authorities which have been  

referred to in the pleadings.   

4. Learned counsel had laid emphasis on R.K. Anand v.  

Registrar, Delhi High Court1 and the paragraph that has  

been commended to us is extracted below:-  

“The impact of television and newspaper coverage on  a person‟s reputation by creating a widespread  perception of guilt regardless of any verdict in a  court of law.  During high publicity cases, the media  are often accused of provoking an atmosphere of  public hysteria akin to a lynch mob which not only  makes a fair trial impossible but means that  regardless of the result of the trial, in public  perception the accused is already held guilty and  would not be able to live the rest of their life without  

intense public scrutiny.”  

5. A passage has also been referred to from the decision in  

                                                 1   (2009) 8 SCC 106

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State of Maharashtra v. Rajendra Jawanmal Gandhi2   

which states thus:-  

“There is procedure established by law governing the  conduct of trial of a person accused of an offence.  A  trial by press, electronic media or public agitation is  very antithesis of rule of law.  It can well lead to  miscarriage of justice.”  

 6. Our attention has been drawn to a few passages from the  

judgment of the Bombay High Court in Mushtaq Moosa  

Tarain v. Government of India3. As Mr. Hegde has laid  

immense stress on the paragraphs from the said judgment, we  

think it appropriate to reproduce the same:-  

“56. The Censor Board has framed guidelines. These  guidelines are framed under section 5b(2) of the  cinematography act. One of the guiding factors is  that visuals or words “involving defamation of an  Individual or Body of Individual or contempt of  court are not presented. These guidelines ensure  that nothing should be permitted which amounts to  interfering with the administration of justice. It is  not as if the Censor Board has to be satisfied that  visuals or scenes have in fact interfered with or  obstructed the course of justice or have adverse  effect thereon. In other words, it is not as if the  matter has to be decided by the Censor Board on  the touch stone of Law of Contempt. Similarly,  “defamation” as contemplated by the guidelines  should not be construed as committing of tort of  defamation as understood in law. Broadly, these  

                                                 2  (1997) 8 SCC 386  

3  (2005) SCC Online Bom. 385

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guidelines are for the purposes of giving effect to the  well settled principle that every right has a  

corresponding duty or obligation.  

xxx   xxx   xxx  

64. In the case of Hutchison, Ex parte McMAHON,  reported in (1936) ALL ENGLAND LAW REPORTS  ANNOTATED (VOL. 2) 1514, the King's Bench has  observed thus:-  

“Proprietors of cinemas and distributors of films  must realise that, if they want to produce these  sensational films, they must take care in describing  them not to use any language likely to bring about  

any derangement in the carriage of justice.”  

65. Grant of injunction or restraint order is not a  gagging writ in the facts of this case. The Petitioner  has made out a strong prima-facie case inasmuch  as fair trial, which is part of Rule of Law and  Administration of Justice, is an aspect which must  prevail over individual's right of free speech and  expression. People's right to know cannot be  stretched to such an extent as would make mockery  of Rule of Law. Petitioner's right to fair and  impartial trial must outweigh all such previleges  and expectations. The balance of convenience is  definitely in favour of an injunction inasmuch as  the restraint against exhibition is for limited  duration and the Petitioner's right as above as well  as public interest is in favour of such restraint. The  Respondents have a commercial and business  interest which is secondary. The loss to the  Petitioner's dignity and reputation is enormous. It  would be irreparable as the viewers may form an  opinion about his guilt.  

66. Before we conclude, we cannot but observe that  this trial is one of those important trials even in  terms of history and in terms of reconciliation of  people. If the people have to have a belief in truth

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and justice as abiding values having a primacy over  force and violence, it is just and necessary that  justice must not merely be done but must also  appear to have been done. If a society wants to do  justice and thereby have peace and stability, then  the stream of justice has got to be maintained clean  to the extent possible. It is equally essential that the  dignity of any individual, even though he may be an  accused, has to be maintained as far as it could be.  Looking at it from this point of view as well, we  cannot but hold that the release of the film will have  a prejudicial effect on fair administration of justice  as well as on the image of the accused. We,  therefore, hold that the Petitioner has made out a  case for the injunction that he has sought on the  ground that the release of the film would constitute  

contempt of court and his defamation.”  

7. Relying on the said judgment, it is contended by Mr.  

Hegde that as the matter is sub-judice, the release of the  

movie is likely to affect the stream of justice and order of stay  

of the release of the movie is called for.  With all the humility  

at his command, Mr. Hegde has relied upon the decision of the  

Bombay High Court which we have referred to hereinabove.   

We do not intend to comment on the said decision of the  

Bombay High Court because we are not aware whether the lis  

travelled to this Court or not and in any case, the principle  

stated therein cannot always be a guiding factor. Suffice it to  

say, the said case has to rest on its own facts.  

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8. As it seems to us, a film with regard to a particular  

situation does not affect the trial or the exercise of „error  

jurisdiction‟ by the appellate court.  The courts of law decide  

the lis on the basis of the materials brought on record and not  

on the basis of imagination as is projected in the language of  

the theatre or a script on the celluloid.  In this regard, we may  

reproduce a paragraph from the order passed in Viacom 18  

Media Private Limited & Ors. v. Union of India & Ors.4  

which deals with the release of the film, namely, „Padmaavat‟.   

It reads as follows:-    

“It has to be borne in mind, expression of an idea by  any one through the medium of cinema which is a  public medium has its own status under the  Constitution and the Statute.  There is a Censor  Board under the Act which allows grant of  certificate for screening of the movies.  As we scan  the language of the Act and the guidelines framed  thereunder it prohibits use and presentation of  visuals or words contemptuous of racial, religious or  other groups.  Be that as it may.  As advised at  present once the Certificate has been issued, there  is prima facie a presumption that the concerned  authority has taken into account all the guidelines  including public order.”  

 9. In Nachiketa Walhekar v. Central Board of Film  

                                                 4  2018 (1) SCALE 382

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Certification & Anr.5, this Court stated that a film or a  

drama or a novel or a book is a creation of art and that an  

artist has his own freedom to express himself in a manner  

which is not prohibited in law. The Court also stated that  

prohibitions should not by implication crucify the rights of  

expressive minds.  

10. The Court noted that in human history, there have been  

many authors who expressed their thoughts in their own  

words, phrases, expressions and also created whimsical  

characters which no ordinary man would conceive of. Further,  

the Court stated that a thought provoking film should never  

mean that it has to be didactic or in any way puritanical,  

rather it can be expressive and provoking the conscious or the  

subconscious thoughts of the viewer and if there has to be any  

limitation on it, such a limitation has to be as per the  

prescribed law.  

11. Elaborating the same, we may add that there can be  

multitudinous modes, manners and methods to express a  

concept.  One may choose the mode of silence to be visually  

                                                 5  (2018) 1 SCC 778

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eloquent and another may use the method of semi-

melodramatic approach that will have impact. It is the  

individual thought and approach which cannot be curbed.  

12. Mr. Hegde, learned senior counsel, has also suggested  

that though the freedom of speech and expression should not  

be curtailed, yet this Court, on certain occasions, has  

protected the image and reputation of the individuals by giving  

priority to the image of the person in society.    

13. In this regard, he has drawn inspiration from Devidas  

Ramachandra Tuljapurkar v. State of Maharashtra &  

Ors.6. It is necessary to clarify here that in the said case, the  

question was with regard to poetic license wherein the Court  

observed that as far as the words "poetic license" are  

concerned, it can never remotely mean a license as understood  

in the language of law as there is no authority which gives a  

license to a poet; for the words of the poet come from the  

realm of literature. Further elaborating, the Court stated that  

the poet assumes his own freedom which is allowed to him by  

the fundamental concept of poetry and he is free to depart  

                                                 6  (2015) 6 SCC 1

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from the reality; hide ideas beyond myths which can be  

absolutely unrealistic or put serious ideas in satires, ifferisms,  

notorious repartees; take aid of analogies, metaphors, similes  

in his own style, compare life with sandwiches that is  

consumed everyday or convey life is like peeling of an onion, or  

society is like a stew define ideas that can balloon into the sky  

never to come down and cause violence to logic at his own  

fancy.   

14.  In this backdrop, the Court opined that a „poetic license‟  

can have individual features, deviate from norms, or other  

collective characteristics or it may have a linguistic freedom  

wider than what a syntax sentence would encompass. We may  

note with profit that the controversy travelled to this Court as  

the trial court had framed charges under Section 292 IPC  

against the appellants and the High Court had declined to  

interfere.  This Court observed that the language employed in  

the poem “I met Gandhi” was prima facie obscene because of  

the language employed relating to Mahatma Gandhi, the father  

of the Nation.  Though the Court quoted some stanzas of the  

poem, yet it thought it wise not to reproduce the said stanzas

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in entirety because of the words used.  The Court did not  

adjudicate upon the entire controversy as the author of the  

poem had not challenged the order.  The concept of obscenity  

was judged in the background of “contemporary community  

standards test” and the Court ruled that when the name of  

Mahatma Gandhi is alluded or used as a symbol and obscene  

words are used, the concept of “degree test” in addition to  

contemporary community standards test is invokable.  The  

Court further elaborated by stating that the “contemporary  

community standards test” becomes applicable with more  

vigour, in a greater degree and in an accentuated manner.   

The Court was of the view that what can otherwise pass the  

contemporary community standards test would not be able to  

do so if the name of Mahatma Gandhi is used as a symbol or  

allusion or surrealistic voice to put words or to show him  

doing such acts which are obscene.  

15. While so stating, the Court concluded by leaving it to the  

poet to put his defense at the trial explaining the manner and  

the context in which he has used the words. In this context,

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the Court further opined that the view of the High Court  

pertaining to the framing of charge under Section 292 IPC  

cannot be said to be flawed.  

16. In our considered opinion, the reliance placed on the  

above-mentioned judgment by Mr. Hegde, learned senior  

counsel, does not render any assistance.  The law laid down in  

the said case rests on the facts depicted therein.  

17. At this juncture, we may also state that the doctrine of  

sub-judice may not be elevated to such an extent that some  

kind of reference or allusion to a member of a society would  

warrant the negation of the right to freedom of speech and  

expression which is an extremely cherished right enshrined  

under the Constitution.  The moment the right to freedom of  

speech and expression is atrophied, not only the right but also  

the person having the right gets into a semi coma. We may  

hasten to add that the said right is not absolute but any  

restriction imposed thereon has to be extremely narrow and  

within reasonable parameters.  In the case at hand, we are  

obligated to think that the grant of certificate by the CBFC,  

after consulting with the authorities of the Army, should dispel

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any apprehension of the members or the society.    

18. In this context, we may appositely reflect on an eloquent  

passage from Kingsley International Pictures Corporation  

v. Regents of the University of the State of New York7  

wherein Potter Stewart stated:-  

“It is contended that the State‟s action was justified  because the motion picture attractively portrays a  relationship which is contrary to the moral  standards, the religious precepts, and the legal code  of its citizenry. This argument misconceives what it  is that the Constitution protects. Its guarantee is  not confined to the expression of ideas that are  conventional or shared by a majority. It protects  advocacy of the opinion that adultery may  sometimes be proper, no less than advocacy of  socialism or the single tax. And in the realm of ideas  it protects expression which is eloquent no less than  

that which is unconvincing.”  

19. The nature of the present matter compels us to  

recapitulate that the human history is replete with struggles to  

get freedom, be it physical or mental or spiritual. The creativity  

of a person impels him not to be tied down or chained to the  

established ideals or get enslaved to the past virtues and  

choose to walk on the trodden path.  He aspires to rejoice with  

the new ideas and exerts himself to achieve the complete  

                                                 7  360 U.S. 684, 688-89 (1959)

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fruition. That is the determination for moving from being to  

becoming, from existence to belonging and from ordinary  

assumption to sublime conception.  The creative intelligence  

kicks his thinking process to live without a fixed target but  

toying with many a target.    

20. We would be failing in our duty if we do not note the last  

plank of submission of Mr. Hegde. He would suggest that this  

Court may direct the producer and director of the film to add a  

disclaimer so that no member of the society would ultimately  

be affected by the film. The aforesaid submission on a first  

blush may seem quite attractive but on a slightly further  

scrutiny, if we allow ourselves to say so, has to melt into  

oblivion. Whether there is the necessity of “disclaimer” or not  

has to be decided by the Censor Board which is the statutory  

authority that grants the certificate.  In fact, when a disclaimer  

is sought to be added, the principle of natural justice is also  

attracted. To elaborate, the producer or director is to be  

afforded an opportunity of hearing. The Court should not add  

any disclaimer for the asking. Addition of a disclaimer is a  

different concept altogether. It is within the domain of the

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authority to grant certificate and to ask the director to add a  

disclaimer in the beginning of the movie to avoid any kind of  

infraction of guidelines. Though the suggestion is made in  

right earnest by Mr. Sanjay Hegde, yet we are impelled not to  

accept the same.    

21. Consequently, the writ petition, sans merit, stands  

dismissed.  

 ……………………….….CJI.    [Dipak Misra]     

……………………….…….J.                           [Sanjay Kishan Kaul]     

New Delhi;  February 16, 2018.