M/S. ROCKWELL MUSIC v. UNION OF INDIA & ORS.

RAMESHLAL •. •• Through: Mi". Rakesh C. Agrawal, Mr. Ashok Sethi and Mr. PuneetAgarwal, Advocates. versus, UNION OF INDIA &ORS,.. • •" { a i'''. • Ml". Vikas Paliwa, Standing counsel for CBI. W„FiC) No. 6704 of 2008 • SM.

ELECTROMCS @SHANKAR SERIES - V RAJASTHANI CASSETTES,. TITROUGEI; SHANKAR EAL KUMAWAT ••-••Petitionei • Through: Mr. Rakesh C. Agrawal, Mr. Ashok Sethi and Mr. Pmieet Agarwa],:y\dvocates. versus ' • ' ' ',. union OF INDIA &ORS., ' •Through: Mr. Anjiim Javed, Ad-voca.te foj. C.bl C •and GNCTD. ',.. • • • W.P.fC) No-'6914 of 2008 angle MUSIC VIDEO PVT. LTD. ' • • Petitioner Through: Mr. DhaneshRelan, Advoca.te.- I • • versus ' • • - - BOABD of filmCEPJIFICATION &ORS..... Respondents • Through: Ml-. Anjum Javed, Advocate "., ' ]}Ai. Vikas Pahwa, Standnig counsel for CBi. - W 1P' No. 7018 of-2008 •, YUKI CASSETTES ' /... Pejitioner Through: Ml"..Phanesh Relan, Advocate.

VERSUS

BOARD OFFILMCERTIFICATION&'oRS- ^ - Respondents Through:'Mr. Anjum-laved. Advocate for CBFC and GNCTD.- Mr. Vikas Pahwa, Standing counsel toi CJ31. • AV.p.rO No, 7431 of 2008 Petitioner MAGIC ART Advocate. ( BOARD OF FILM CERTIFICATION &ORS Respondents Through: Mr. Anjum Javed, Ad-vocate for CBFC and GNCTD. ••. p ppi Mr. Vikas Pahwa, Standing counsel ioi Cbl. ^ W.FiC) No--7482 of 2008 CLASSIQUEDISCS a V' Through; Mr. Dhanesh Reian, AdA^ocaLe. A^ers-us' • •. • • boardOFFILM CERTIFICATION &ORS- --Respondeats Through; Mr. Anjum Javed, Advocate for CBFC and GNCTD.., • ' Ml". Vikas PahAva, Standing counsel i'oi UJJI. W„PiQ No- 7499 of Stn AUDIO AND VIDEO PVT. LTD..,. -- Petrtioner: Sethi and Mr. PuneetAgarAA'al, Advocates. • versus union OF INDIA &ORS. ' Tlxrouglr. Mr. Anjum Javed, Advocate for CBFC and GNCTD. _ Mr. Vikas Palwa, Standing counsel loi L.13.1.. w-IPiC) No> 7500 of; •. • Petrtioner matacassette^^^^^^^^^^ ^ • A^ersus •. "•• • o... Respondenls •IJlxPON OF INDIAAdvocate. for CBFC and GNCID- i Fm-TBT • Mr. Vikas.Pahwa, Standing counsel foiCB.L A'^Y ]p'(r) No. 7501 oi 2008 Sethi and Mr. Puneet Agarwal, AcWoca.(:es. A^ersus •UNION OFINDIA & O'RS. '...Respondents Through; Mr. Aiijum Javed, Advocate., for CBFC and GNCTD,: WITH W.P.fC) No. 7928 of 2008 SAAWAKJYA MUSIC AND FILMS ' ' -... Petitioner Through: Mi". Rakesh C. Agrawal, Mr. Ashok Sethi with Mr. Puneet Agarwal, Advocates... versus... UNIONOFINDIA&ORS. •_ • Respondents. • •Through; Mr. Anjum Javed, Advocate •, for CBFC and GNCTD..• Mi-. Vikas Palwa, Standing counsel.for CBI. W-P.m No. 7929'0'f 200K- M/S. S.R.PRASTUTI • Petitioner Tlirough: Mr. Rakesh' C; Agrawal, Mr. Ashok Sethi and Mr. Puneet AgaxAval, Advocates. versus.UNION OF INDIA &ORS. '•• '• •••Respondents Through; Mr. Anjum.laved, Advocate Mr. Vikas Pahwa, Standing counsel.for CBl- W.P.fQ'No- 7930 of 2008 ASHOKMUSIC INDUSTRIES • Through: Mr. Rakesh C. Agrav/al, Mi. Ashok Sethi andMr. Puneet Agarwal, Advocates.

VERSUS

UNIONOFINDIA&ORS..Respondents Through; Mr. Anjum Javed, Advocate. -for CBFC and (5NCTD.., W.FiC) No. 7973 of 2008 VASU MUSIC AND ENTERTAim/ENT INC. TEIROUGH: ITS PARTlvffiR SUT^IL KUMAR ' •••Petitioner TliL'OUgh: Ml". S.K. Chaturvedi, Advocate. versus • • UNION'OF INDIA &ORS. ' ', /.. Respondents Through: Mr.- Vikas Pahwa, Standing counsel for CBI. Mr. Anjum Javed, Advocate for CBFC and GNCTD. WITH ' WoF.ifC) No. 8382 of 2008 I HIMALAYAN FILMS P. LTD. THROUGH: ITS AUTHORISED REPRESENTAT.IVE OR DIRECTORM.C.LAKHERA, --- Petitioner Through: Mr. Rakesh C. Agrawal, Mr. Ashok •versus • UNION OF INDIA &ORS. '•••Respondents Tlu'ough: Mr. Anjum laved, Advocate for CBFC and GNCTD. •., ^ Mr. Vikas PahA¥a, Standing counsel for CBI.- -y\i IP (n No. 8'842 of 2008 UMA CASSETTES ' •.. THROUGH: ITS PROP.

NAJRAIN MEHTA • Tlirough: Mr. Ralcesh C-Agrawal, Ml. Asliok Sethi and Mr. Puneet Agarwal, Advocates.. versus union OF INDIA &ORS....Respondent. Through: Mr. Anjum. iaved, Advocate for CBFC and GNCTD. ', ^ Mr. Vikas Pahwa, Sta.ndin.g counsel loi CLl. •W.VJn No, 9 of Through: Mr. Rakesh C. Agrawal, Mr. AshoJc versus UNION OF INDIA &ORS. Respondents Through: Mr. AnjumJeived, Advocate for. CBFC and GNCTD. Mr. Vikas Pahwa, Standing counsel for CBI.. ' •• W,P.fC) No. 7429 of 2009 ' M/S.. SPIUGUN LOVING AND BASOYA MUSIC CO., • TI-IROUGH: PROP..

BIJDENDRA SINGH BASOYA...Petitioner Through: Mr. Rakesh C. AgraAVtii, Mr. Ashok • Setlii and Mr. Puneet Agarwal, Advocates.

VERSUS

UNION OF INDIA &ORS.... Resp.ondents Through: Mi". Aiijum.laved, Advocate.. • for CBFC a,nd GNCTD. • ]\/h-. Vikas Pahwa, Standing counsel for CBI. •W.PiC) No. 547 of 2010'. M/S. ROCKWELL MUSIC TI-IROUGH: ITS AUTITORISED REPRESENTAIIVE RAJEEV KUMAR SAXENA ' • •, • • Through: Mr-..Rakesh C. Agrawal, Mr. Ashok versus UNION OF INDIA &ORS.; •••R^pondents Through: Mr. Anjum Javed, Advocate ioi •, CBFC and GNCTD. Mr. Vikas Pahwa, Standing counsel for CBI. W.FiCl N"- of 2010' • Sethi and Mr. Puneet Agarwal, Advocates. A^ersus: Through: Mr. A.S. ehandhiok, Additional Solicitor General Avithl">/h'. B.V. Niren, Advoca:te forUOI. " • • W.P.fC) No. 3806 of-2010 •,.GANGA CASSETTES ••••Petitioner Through: Mr. Kewal Singh Ahiija, Advocate. versus • UTNTION OF INDIA &O'RS. •......Respondents Through: Mr. Ravinder Agarwali.CGSC Avith Mr. Nitish Gupta, -Advocate.for.R-1 &R-6. Ms. Zubeda Begum and Ms. Sana Ansari,. Advocates for R-3. COELAM: JUSTICE S. MUR^vLIDHAR 1". Whether reporters ofthe local news papers be •alloAved to see the judgment?

2. To bereferred to the Reporter ornot?.

3. Whether the judgment should, be reported in the Digest? 24.11, 1^. The Petitioners in thirty-five•of these thhty-six wiit pedtions producers, manufacturers, and sellers, and also repUcators for music companies holding copynglrt in audio-visual materials includmg devotional and religious songs in marry regional languages, recorded on video compact discs CVCDs') arid digital video discs CDVDs'), which the Pedt.oners have labeled as 'only for private viewmg'. The common question Uiat aijse,s m these petitions is v,hetlrerthese audio-visual recordingsen DVDs ar,d VCDs which the Petitioners sell mthe maitet, but ^ith th.e label that it is meant Certrfication C'CBFC) under Section 5-A ofthe Cinematograph Act, 1952 • ^ ('CG Act' )? The onfy exception is Writ Petition (C) No. 6481 of 2007 by. DharmendcLr Kapoor which prays for directions to the. Respondents to,/ strictly enforce the CG Act and the CR Act against those making and selling such audio-visual material in DVDs and VCDs. •

2. The above question Avhich is common to all these petitions arises in the context ofraids conducted by the police on tlie shops from where DVDs and VCDs similar to the ones being manufactured and sold by the Petitioners were seized and prosecution launched agamst several persons for violation ofSection 52A(2)(a) ofthe Gopyriglit Act. 1957 ('CR Acf). The contention of the Petitioners is that since they are themselves tire manufacturers and seUers and, tlierefore, the holders ofthe copyright in respect of the material in these DVDs and VCDs, they were not required to obtain certification under Section 5-A of tire CG Act, and consequently they cannot be, V.. prosecuted under Section 52A(2)(a) ofthe CR Act. •

3. The prayers intee writpetitions, except WP.

(C) No. 6481 of2007, aj-e more or less ofadeclaratory nature. The Petitioners seek adeclaration that their films sought to be sold in the form ofDVDs and VCDs and which are meant for private viewing do not require certification by the CBFC under Section 5-A CG Act, Suc-h adeclaration is souglrt with aview to avoiding prosecutionunderthe CRAct. The facts in each oftire otherpelutions drlfer slightly as regards- the precise DVDs and VCDs being sold by each of the Petitioners. Illustratively, the facts inWritPetition (C) No. 2543 of2007 ai'e Fuels,in W.P.' (C) No. 2543 of.2007•

4. Petitioner No.I is Super Cassettes Industries Ltd. ('SCIL') having Jts registered office at New Dellii. Petitioner No. 2is its sliare lipider fhe CBFC is Respondent No.I in tiie present petition. •F.espondent No. 2is the Union ofIndia (,^UOr) tluough the Ministiy ofInformation &Broadcasting, Government of India CI&B Ministry'). Respondent No, 3 is tlie Commissioner of Police, New Dellii.

5. SCIL was initially registered as a private limited company in tlie year 1983 having late Mr. Gulshan Kumar and Ms father. Mr. Chanderbhan Dua as its Directors. In 1988 it became adeemed public limited company. It is stated tliat SCIL, since its inception, has been engaged in the business of manufacturing and marlang audio and video cassettes (blank and recorded), compact discs ('CDs'), televisions, tape recorders, CD players and other electrical goods. It is stated that SCIL has also built state-oLthe-art facilities in its recording shidios. SCIL is the proprietor ofT-SERIES brand ofmusic cassettes, CDs, VCDs arid DVDs. SCIL claims to own copyright in avast repertoire of cinematograph films and sound recordings, including over 20,000 Hindi non-film songs and around 50,000 songs in icgional • languages, adding up to tens oftirousands ofhours ofmusic. SCIL claims to own exclusive copyright in video films of different varieties including audio-visual songs of hundreds, of feature films, music videos of private artists,.performance of devotional songs and discourses along wUh visual p.cturisation, performance of Indian classical music with vi.sual p>ctunsation, other video films such as animated films and compilations of

6. The case ofthe Petitioner SCIL, which is also that ofthe other Petrtioners, is'th.at the fhms manufactured or produced by them, containing devotional ^ •and rehgious songs, are not bemg sold for 'public exhibition' AAathin the meanmg of the CG Act.'The Petitioners'.case is that since they are being sold for private home vieAving, they-do not require certification by the CBFC. It IS stated that Avith each DVD and. VCD sold by the Petitioners a set ofAvarnings are printed on the cover/jacket containing the VCD oi DA D. A sampling ofthe said Avarnings is; "WARNING: This Addeo is for your personal and private. use only. Any commercial use including.renting in public Avill need hcence from Super Cassettes hidustnes. Limited, under the Copyright Act, 1957. "WARNING: Any unauthorised copying, of the film, causing the film to be seen and heard in the public, making any record of the sound track in the Iilra, communicating the film by broadcasting, usage,, •;• publishing, adapting, synchroniza.tion or by' means ol.. AYireless diffusion or Avire selling or letting for hire, • distributing, e?diibiting, importing.or exporting any unauthorized copy shall constitute infringement of the producer's copyright mthis cinematograph film and any' • such act or'attempt shall be.an offence punishable with fine and imprisonment under Chapter XII of the Copyright Act, 1957." ^. "Waining: All rights reserved. For noii-commercial private home viewing only and on a single viewing •device at any time: The contents are not to be transmitted on any cable or like television, transmission system or dwelling. Unauthorised • copying, •duplication, reproduction, hiring, renting lending broadcasting and ^ public performance or exhibition or screening (including clubs, bars, hospitals, nursing homes, retail establisliments, oil rigs, prisons, schools and/or in public transport, aii"ports, railways and bus station) is stiictly prohibited. Any unauthorised use, copying or violation ofthe above terms shall constitute an offence under the Copyright Act, 195,[7] (as amended) and shall be liable for prosecution.". •7. It is stated timt on or around 7'" December 2006, teams ofpolice otficers conducted raids at the business premises of several individuals and linns dealing in tire sale ofvideo films including audio-visual materials produced by SCtL. Aconsiderable stock of VCDs and DVDs was seized on the ground that tlie persons stocking tlrem failed to produce die necessary documents including tlie certification of the CBFC under Section 5-A ofthe GG Act, FIR No.

RC SIB 2006 E0010 dated 8'" December 2006 was registered under Section 120B IPG read with Section 52A CR Act and 'Sections 63, 65 and 69 CRAct, Severalretailers were named as tlie accused.persons, SOIL claims that tlie present petition, has been filed under tiie apprehension that time may be more such raids in wjiieh tlie DVDs and VCDs produced by SCIL and sold in the retail market for private viewing may beseizedforwaatofcertificatesissued bytheCBFCunderSection."i-A CG Act, It is stated tlrat an FIR on similargrounds was lodged on 14 luly 2006 mthe Dabn Police Station, South-West Distriet. Delhi upon the complamtofoneMr. AvadlrSharma.amemberoftl,eDelhiAdvisoryPanel

8. SCIL states that thereafter large stocks ofVCDs and DVDs were returned to it by rts'retailers and stockists since apanic was created as aresult ol the raids. SCIL claims to have ^suffered return of stack of value of Rs. 161. crores between November 2006 to 14^'^ February 2007 apart from loss of reputation and goodwill. In the circumstances, W.P. (C) No. 2543 ol 2007 was filed,on 3"' April 2007. Wliile directing notice to issue^in the writ petition, the following order was passed by this Court: • "Issue notice to the Respondent No.l, returnahle on 19 July 2007. • - '. The issue involved in this "petition is. whether the • • •. manufacture and sale of DVDs and VCDs pertaining to certain audio-visual materials including devotional songs •etc. which do not fall Avithin the standard 'understanding of feature films or documentaries' would still require certification from the Board of Film Certiliication under the Cinematograph Act, 1952. The Pel.itionei is a • manufacturer of various DVDs and VCDs which include feature films and -films designed for public vieAvmg as w.ell as films which, according to the Petitioner, are not "designed for public viewing.. Insofar as those audio •' visual' materials, which are designed for public viewing are concerned, the counsel for the.Petitioner clearly states • that, aFilm Certification would be necessary and it has been a.pplying for the same'and obtaining the same from •time to time. Insofar as the audio-visual material which. is not. designed for public viewing is concerned, the • Petitioner is of the view that the same does not require ••. • certification for the purposes ofmanufacture and sale. In case, any person, after having purchased or rented the % There is a difference of understanding between the Petitioner and the Respondents on this aspect,,.According to tlie learned counsel for the Respondents, all audio- VA' •. Aasual materials, which are capable of public viewing, require certification. Since, this matter lequiies • •consideration, the Respondents are directed to file their counter affidavits within four weeks and tJie Petitioner,. shall file the rejoinder affidavit within four weeks thereafter, hi the meanwhile,.the Respondents may continue- with their investigation but shall not take any coercive step, with regard to the audio-visual -mateiials which are meantfor private viewing. Dasti.";. •

9. The above interim order has.continued since then.

10. The facts m.each oftlie other petitions aad the reliefs sought are more or less similar. As already noticed only.m W.P. (C) No. 6481 of2007. by IStr. Dharmendar Kapoor. the relief sougllt is for adirection to the Respondents • to strictly enforce the provisions ofthe CG Act and the CR Act. Submissions ofcounselfor Petitioners • •11. Mr. Amit Sibal, learned counsel appearing lor SCIL submitted thatundei Section 52A(2)(a) ofthe CR Act, the certificate for public exhibition issued by the CBFC under Section 5-A CG Act is required to be displayed only when the video film in question is publicly eriMbited. Where it is meant for private viewing. Section 52A(2)(b) and 52A(2)(c) get attracted and it is nobody's case that the details thereunder are not being displayed. Ihe requiring certification under Section 5-A CG Act, raids iia:ve,been conducted and D.VDs and VCDs seized for Avant of aCBFC certificate. Accoiding to Mr.. Sibal, sliowing afilm in apublic place, to Avhich the public is admitted, constitutes 'pubhc ejdiibition' within the meaning ofthe CG Act. Analysing ' various proyisions ofthe CG Act including Sections 3, 4, 5-A, 7and 10, Mr. Sibal submitted that only such films thsit are meant for public exlubition are required to be certified by the CBFC. He submits that tlie mere display of the'jacket or the- cover contammg the VCD or DVD as the case may be iii a shop selling such VCDs or DVDs does not amount to public exhibition.

12. In order to underscore the distinction between the different expressions 'sale', 'distribution' and 'exhibition', Mr. Sibal referred to Section 51 CR Act which sets out the circumstances iii Avhich the copyright mawork shall be deemed to be infringed. It is submitted-that Section 51(b) CR Act provides that Avhen any person makes for sale orhire,, or sells or lets for hire, or by way oftrade displays, or offers for sale-or hire or distributes either for the purpose oftrade or to effect prejudicially the owner ofthe copyright oi by way of trade 'exhibits mpubhc' or imports into India any infringing copies of the work, then there is'deemed infringement of the copyright. Infrmgmg copy under Section 2(m)(ii) CR Act means "m relation to a cinematographic film,.a copy of the film made on any medium by.any means" ifsuchreproduction, copy or soundrecording is made or imported m contravention of the provisions of the Act. Mr. Sibal pointed out that 'exhibition' ofa.film mpublic would not mclude sale, display or distribution ir VCDs would- be used to distribute among tlie public, material Lhat is otherwise objectionable.and not fit for viewing, Section 292 IPG would take or care ofall such contingencies and every person involved.i.n the manu.facture, /• sale and distribution of such material would be liable thereunder., It is submitted that the object ofintroducing Section 52A CR Act Avas to protect against piracy and sale for commercial gains of cinematographic films on a mass scale by persons other than the producers of such i.ilms. Section 52A.CR Act "was not intended to prosecute the owners of the copyright themselves. ]3. Mr. Sibal pointed out that Section 4CG Act envisages different kmds of certificates granted by the CBFC upon examination of tlie film only where such film is meant for'public exllibition. This according to him was plain from areading ofSection 5as well. Under Section 14 CG Act there, are penalties for violation ofSection 10 regarding exhibition ofafilm at aplace other than aplace licensed for public exllibition. If the mere display in a shop of the coyer or jacket containing the VCD or DVD were to be construed as 'public exllibition' then no films could be stocked in ashop because it was open to the entry ofall persons irrespective of tire age group. Every such shop then would have to be licensed as fit for 'public exhibition' which could mixinl lead to absurd results not envisaged by the CG Act. It is submitted that exllibition has arelation to the place and there can be no •public exhibition' when aperson purchases aDVD from ashop and goes home and watches it by playing it on the DVD/VCD player in die private would depend on the facts and circumstances ol: each case..By analogy, a reference is made to Section 21 ofthe Prevention of Cruelty to Anuiials Act, 1960 Avhich also indicates that 'exhibition' has to be at a place Avhere the pubhc IS admitted'. Referrmg to Section lO^CG Act, it is submitted that a, certified film can be exliibitcd only at such place Avhich is licensed as fit l:or 'public exliibition' by the State Government. L:i this connection, Mr.. Sibal refen-ed to the decisions in Balwinder^Singh v. Delhi Administration AIR 1984 Delhi 379 and Restaurant Lee v. State ofMadhya Pradesh AIR 19S[3] Madhya Pradesh 146 as well as the decision ofthe Supreme Court mState ofA.P. V. Nagoti Venkataram'ana (1996) 6SCC 409^ which, accoiding to Mr. Sibal, Avas mistakenly understood,as permitting the police to.launch prosecution even where the VCDs/DVDs were meant for private viewing. •

14. Mr. Sibal submitted that the requirement of censorship of films meant for private'viewing wasnot envisaged either by the'CG Act or the CR Act. To insist' on certification of such films would be an unauthorised and •impermissible restriction on the freedom of speech and expression under Article 19(l)(a.),. read with Article 19(2). of the Constitutioh of.India. That freedom was not only for producers.of films but also of the buyers and viewers of films. -It is •submitted.that inasmuch as the CG Act itself is subject to various restrictions relatable. to..Article 19(2), it cannot be expan.ded to include censorship of a^dio-visual' material meant for pnvate viewing. Since both the CR. Act as weh as the CG Act contained penal provisions inasmuch they provided for prosecution a.nd pumshments for offences committed thereunder,•the provisions of both sta.tutes had to be u to require censorship even of fhms meant for.private viewing. Mr. Sibal submitted that ifthere was adeparture from the plain meaning which lead l;o either absurdity or repugnance then such departure could not be permitted. On the interpretation sought to be placed by the Respondents the provisions of Sections 7A and Section 10 CG Act would become unworkable. Areference is also made.to the observations of the^ Supreme Court mState of Madras V. KG. Row AIR 1952 SC,196. Mr. Sibal submitted, that on the' plain meaning,ofthe provisions ofthe CG Act, there was no legal basis lor requiring certification by the CBFC offilms meant for private viewing. It is submitted that in recognition of the possible difficulties that may be encountered in requiring aU kinds of films to be certified, the I&B Mimstry had itself issued an order on 24"' September 20i07 exeixipting certain films from the-requirement of certifrcation. It is submitted that it would be impractical for all VCDs and DVDs meant for private viewing to be submitted to the CBFC for ceitifrcation.

15. In this comiection, reference was made to aletter dated 27"' October 2006 written by' tlie CBFC to tlie Soutli Indian Music Companies Association in which itwas stated as undei.."As.you are frilly.aware, as per the Cinematograph Act 1952, any audio-Adsual material meant for pubhc viewing.. is to be certified by CBFC. This means any frlm either in ~• celluloid or in video format intended to be shown to public either in alicensed theatre or a.ny public place and the audio visual material available for sale across the. counters need to be submitted to CBFC for certification. transferred into-other.formats' and also celluloid film in • • one language when dubbed into other languages, need to.be submitted for certification if they are- intended for broadcasting either in.cable network •or ^television channels at a later date. As on date, only those audio visual materia,ls which are meant,for exclusive telecast in different TV channels does not come under our purview. The responsibihty of such material.was left to the individual broadcasting house under self regulation. • • •': We are happy to laiow that asudden spurt of awareness in this regard has taken place andwe are approached foi, certification- for huge amount of- audio visual materials. Despite'oui-best efforts to- expedite by.way of increasing the available infrastructure, as you are fully awa..re, it will • •. • take some more time to create, the needed infi-astructure as per the increase in workload.". ' 16, It is pointed out tlaat SCIL itself.lias Imd to wait for several montlis to get its video films certified..

17. Supplementing the-submissions ofMr. Sibal, Mr. Asholc Sethi Icainod counsel appearing for some oftlie Petitioners in the comiectedwritpetitions, referred to,the Cinematograph Act, 1918 CCG Act 1918 ), Section 5of which-provided for the certification of afilm as-well as condMons ofthe Ucence for exhibition offilms. Accordingto te- Sethi die piQvisions ofdie CGAct 1918 werereaiTanged inthe CGAct enacted iii 1952. Ileiefciiod to r./ the emphasis was on the safety of the place of exhibition and for the requirement of certification only where the fihii was 'meant for 'pilbhc ^ exliibition'. It is submitted that Section. 10 CG Act Avhich was in Part III [ could not be read independent ofSections 4and 5-A CG Act which occuued m Part II and that both Parts II and III of the CG Act were intrinsically linked. The umvorkability ofthe provisions Avas emphasised if every film meant for private viewing and sold as such was required to be certihed by the CBFC. Referring to Section 7 CG Act read with Rule 37 of the Cinematograph (Certification)'Rules, 1983 ('CCR') which permits the Chairman, any member of the CBFC,,any advisory, panel, a regional officer, any other officer or member ofthe staffof the Board in discharge of their duties to enter any place licensed, for 'public exhibition' and to be provided with aseat ofthe highest rate or next lower class to view the film Avithout charging the admission fee or entertainment tax,.Mr. Seth submitted that these provisions Avould not be. Avortcable in asituatioir AAdieie the film is sold across the counter in DVDs or VCDs specifically indicatmg that they are 'only for private,viewing'. Mi". Seth next referred to Exile 21 CCR which •talks of making.an application for the examination of afilm and submitted that an application is' required to be made only Avhen such film is meant foi pubhc ejdiibition and not otherwise..18. Mr. Sethi referred to Section 3CR Act read with Section 2(ff) CR Act for understaiidmg tlae word 'publish' occurring in Section 52A CR Act. He submitted that it is only when the work is exllibrled loi viewing by the public at aplace to which,tlie public was invited that apublic exhibition of decision in Video Blaster v. Nishi Productions 1998 PTC (18) in tlie context, of satellite;broadcasting and adistinction draAvn between tliat situation and the situation iniiaiid, which according to Mr. Seth caimot amount to 'public ejdiibition'. Mr. Seth then refeixed to the SOR of the amendment made in 1984 to the CR Act which introduced Section 52A M'here the entire focus was on controlhng video piracy. •, ' 19^ The.submissions of Mi": Sibal and Mi". Seth were ilirther supplemented. by Mr. Rajeev Sharma,, learned counsel appearing for some of the writ Petitioners in tlie connected writpetitions. T

20. The submissions on behalfofthe UOI and CBFC Ave,re advaaced by Mr. A^S. Chandhiok, learned Additional Solicitor General- ('ASG'). Mr. Atul Nanda and Mi*. Panlcaj Batra, learned Advocates. The submissions on behalf of the Governineiit ofNational Capital Territory of Delhi (GNC CD )weie advanced by Ms. Zubeda Begum and Ms. Sana Ansari, learned Advocates •and on behalfoftlie CBI by Vfr. Vikas Paliwa, leaned Advocate. 21, It was submitted, on behalf of tlie Respondents, that the key to understanding the entire issue is in Section4ofthe CG Act, which mandates thatevery person desirous ofexl-iibiting afilm should apply to the CBFC for acertification in respect of that film. It is submitted that mere 'desire' to exlllblt afilm is sufficientfor such film to require certification by the CBt'Cmaker ofthe fihn to pubhcly exhibit such fhm. It.is submitted that the mere fact-that copies ofsuchVCDs orDVDs would be made available at aprice ^ is sufficient to' attract the entire gamut of the provisions ofthe CG Act that require certification of such films. It is added that such films still require certification. It is submitted that apurposive construction has to be placed on the expression 'public exhibition^ keeping in view the changing- context where even though the. film is not exhibited in a cinema hall, it is still possible to be-Adewed by the members,ofthe public sitting in the privacy of, their homes. If' a film' watched by several members of the public in the. privacy ofthei;r homes is heldto be exempt from certification then there m'i.11 be areal danger offilms being,made to bypass the guidelines formulated by the CBFC under Section 5-B of the CG Act and there would be no control, on the dissemination of objectionable material through VCDs and DVDs. It • is submitted that the emphasis is not only on piracy of cinematograph films, which is indeed a serious problem, but also to ensure that films which are meant, for restricted public vieAving, are not placed mthe pubhc domain without passing through the procedure ofcertification. 22: It is submitted on behalfofthe Respondents thatwhat constitutes 'public • ' ' ' exhibition' or 'private exhibition' has been explained in several judgments including Balwinder Singh; Video Master Bombay v. Union ofIndia A/R 1986 Bom 428; Deep Snack Bar Sonepat v. State ofHa,jana AIK 1984 P&H 577; H.K. Club v. State ofBihar AIR 1986 Pat 182; Dilip Singh v. state ofRajasthan 1992 (2) WIN597 Garware Plastics aj,dPotyesier.. exempt from eertification under Section 5-A CG Act. It is submitted that no sucli declaration can be given in respect ofthese films in the abstract since they are anyAA^ay meant for sale to the public and therefore meant for 'public exhibition'. It is submitted that'merely indicating on the jacket or cover of the DVD or the VCD that it is meant for private viewing will not prevent the subsequent 'public'.exhibition of such film. Moreover, the warning published on the jacket is only under the CR Act. There was no warning about the impending prosecution of the purchaser, the producer and/or the seller of the film for violation of the CG Act. 23.. As regards the place of exliibition, it is submitted by the learned'counsel for the Respondents that the hcensing thereofis aseparate process for which there are statutes and/or rules made by different States. These Avere made by the-States in exercise of the legislative powers under Article 245 read Avrth Entry 33, List-II ofthe Constitution. The fact that acertilied film cannotbe •shown at any place other than the place licensed as fit for 'public exhibition' in terms of the statute' and rules of the State concerned cannot ipso facto. / meem that unless such film is mteiided to be shown in acinema hall, it is not required to be certified by the CBFC under Sections.[4] and 5-A ofthe CG Act. Mr. Chandhiok referred to Rule 24(9)(f) CCRwhich contemplates that acertificate may even be refused when CBFC is ofthe view that the "fiha is not suitable for unr-estricted or restricted public exhibition". Tt is submitted that aU kinds of films have to be submitted for certification. For dre purposes of Section 52A(2)(a) CR Act, once afilm is 'published' and therefore cotr,mUnicated to the public, it wonld be a film that requires that IS capable, of being publicly exhibited. According to Mr. Chandhiok putting afilm in the public domain whether by sale or otherwise will amount to 'public exhibition'.

24. Although an apprehension was expressed tha,t uncensored films might contain objectionable material and, therefore, should not be allowed to be distributed in the form of DVDs and VCDs, as was' being done by the Petitioners, learned counsel for the Respondents candidly stated that theie M^as no information on whether any part ofthe films produced by any ofthe Petitioners before this.' Court contained- any objectionable material. It. ishowever submitted that some of the Petitioners, including SCIL, have themselves been,submitting-films for certification including films similar l:o the ones described in these petitions which contained only devotional songs. The statutory schemes ofthe CGAct andthe CR Act

25. In the. background of the above submissions, the issue that arises- lor consideration is whether -the DVDs or VCDs made or produced by Uie Petitioners, and sought to be sold or offered for sale with the label that,they are meant for private viewing only, require prior certification by the CBl-C under Section 5-A CG Act? To detemiine this question the legislative schemes ofboth the CG Act and the CR-Acts have to be examined.

26. The CG Act is asuccessor legislation to the CG Act 1918. Ihe SOR. of the CG Act 1918 indica:ted that it -was meant to control exhibition ol cinematographs "Avith particular regard to the safety ofthose a.ttending them films". Afurther object Avas to counter the "special danger from lue which attends cinematograph ejdiibits as has been dlustrated by terrible catastrophies due to this cause in other countries...and to secure ni the. mterest ofsafety ofspectators, aproper regard to the structural conditions of the premises utihsed".^ Consequently, under the CG Act 1918 an auLhority was set up for granting licences intended to ensure that adequate precautions are taken for the safety of persons attending the exliibitions and also Co ensure that certificate is revised in case ofimproper and objecdonable films.- The CG Act, enacted inl952;is largely areaiTangement-ofthe provisions of. the CG Act 1918. Under Section 2(c) CG Act 'cinematograph has been defined as including "any apparatus for the representation of.moving pictures or series ofpictures." Section 2(dd) CG Act defines 'filrif to mean ' "a cinematograph film". As far as the present petitions m'e concerned, there can be no manner of doubt that the films produced by the Petitioners and proposed to sold in VCDs and DVDs answer the description of 'film' under •the CG Act. It may be noticed that 'cinematograph film'' is also, defined under Section. 2(f) of the CR Act, 1957 to mean "any work of visual recording on any medium produced through aprocess from which amoving image.may be produced by any means and includes asound recording accompanying such visual recording and "cinema.tograph" shall be.;construed as'including any work produced by any process analogous-to. cinei-natogfapliy including video films •.

27. On the basis of both defmitions.under the CG Act and the.CR Act, DVDs and VCDs produced, manufactured and marketed by the Petitioncis otherAVise-would answer the definition of 'cinematographic film'.,, /A

28. Under Section 3CG Act, the Central Government constitutes the CBFC for the purposes of "sanctioning films for public exhibition"-. Section 4CG Act which deals with exammation offilms by the CBFC reads as under:

(i) sanction the.film for.uni'estricted public exhibition;

Provided that, having rega,rd to any material in the film, • • if the Board is of the opinion -that it is necessary to caution that the question as to whether any child beloAV the age oftwelve years may be allowed to see such a.film should" be considered by the parents or guardian of such, child, the Board- may sanction the film for unrestricted public exhibition with an endorsem'ent to that effect; oi,

(li) sanction the film for public exliibition restricted to, adults; or. '

Ciia) sanction the fflm fcr pubUc'raWWiioto-wstricled to members of any profession or any class of persons, having regard to tire imfeire, content arrd tlreme of tire ' • film; oi; -•

(ill) direct the' applicairt to can^ orit such excisions or •modifications in the film as it thinks necessary before sanctioning tlie film for public exhibition trader any of '(iv) refuse to sanction the film for public exhibition. (2) No action under the proviso to clause (i), clause (ii), •clause (iia),' clause (hi) or clause (iv) of sub-section (1) shall be taken "by the Board except after giving a.n oppoi-tLinity'to the, applicant for representing his views in, the matter.". ' •

29. The kinds ofcertificates that can be issued after the CBFC has examined afilm under Section 4, is' set out under 'Section 5--A v^hich reads as undei. "Section 5.-A - Certification of films., (1) If, after examining afilm or having it.examined in the prescribed mamier, the Board considers thPit- (a) the film is suitable for unrestricted public exhibition, or, as the case may be, for unrestricted,pubhe exhibition. with an endorsement of the'.nature mentioned in the proviso.to clause (i) of sub-section (1) of section 4, it shall grant, to the person applying for a certificate in ' respect of the film a "U" certificate or, as the case may be, a "UA" certificate; or (b) the film is not suita,ble for unrestricted public •exliibition, but is suitable for public exhibition restricted to adults or, as the case may be, is suitable for public exhibition restricted to members ofany profession or any, elass ofpersons, it shall grant.to the person applying for,a G.ertifica,te in respect of the-film an "A" certificate oi, as the case may be, a "S" certificate, manner: '.. Provided tha.t tlie applicant for the certificate, any distributor or exliibitor or- an}^ other person to whom the rights in the film have passed shall not be.liable for punishment under any law relating to obscenity ].n respect of any matter contained in the film for wliich certrficate has been.grEinted under clause (a) or clause (b). (2) Acertificate granted or an order revising to grant.a certificate in respect of any film shall be published in the ^ Gazette of hidia. (3) Subject to the other provisions contained in this Act, a certificate granted by the Board under this section sliall be valid tlTOuglmit-India for aperiod often years." Whendoes 'public exhibition' takeplace ofacinematographfilm?

30. Much of tire ar-^rment of tire present case has turned around tlie expression 'pubhc exliibition' timt occurs mSections 3. 4and 5-A ofthe CG Act. That expressionhas not been defined under the CG Act. It has not been defined under the CR Act either. The only provision where tlie expression has been defined is.Rule 2(xvi) oftlie Delhi Cinematograph (Exhibition of Films by Video Cassettes Recorder/Player) Rules, 1.98S (Dellii Rules 1986')- Rule 2(xvi) defines the said expression to mean "exlribition offilms for considerafion aird includes exhibitions organised by club/society/ association for its members". The above definition indrcates that any exliibition ofafilm for consideration would amount to a-'public exhibition'. The expression 'pubhc exhtbition' mttie CG Act has to be therefore understood mthe context ofthe CCR and other provisions of die CG Act L[ Reserve Bank ofIndia v. Peerless 'General Finance' and Investment Co, (1987) 1see424 that (SCC, p': 450): "InteiiDretation must depend on the text'and eontext. They are the bases of interpretation. One may weU say if the text is texture, context is what gives it colour. Neither can be ignored. Both are important. That interpretation" is best Avhich makes the textual interpretation match the contextual." The other principle of interpretation invoked is that the intention ofthe legislature must be found by reading the statute as awhole. The Supreme Court has adopted this in several decisions including Poppatlal Shah 'v. State ofMadras AIR. 1953 SC 274- Philips India Ltd/v. Labour Court (1985) 3 SCC 103 Mohan Kmnar Singhaniav. Union ofIndia AIR 1992 SCI.- • -

31. Rule 21 CCR provides for the procedure for applying for acertificate lor afilm meant for public exhibition. Form Iappended to the CCR is the form of application "for cBi-tificate for public exhibition of afilm produced in India", Form I-A is tile form of application, for certification "for public exliibition of a'video film produced in India". Form II is foi public ' exlribition of a film imported into India". Under Rule 22(9), after the.examination oftire film by each member ofthe Examining Conuuittee, the CBFC can issue a'U' certificate when afilm'is'suitable for unrestricted public exhibition, a 'UA' certificate when they find it suitable for unrestricted pubhc exliibition but with an endorsement of caution that the question as to whether airy child below tire age of twelve years may be aUowed to see the film should be considered by the paj-ents or guarxlian of such-child, or opine that the' film is suitable for public exhibition only to exlubition restricted to members of any profession or any class of persons having regard'to tlie nature, content and ttieme of the film, rx.. fit foi S certificate.- Tile Exaitiining Committee may also require or modrfy certain portions of tlie film as apre-condition for grant of any of the above certificates. Under Rule 22(9)(f) the Examming Committee could also decide that llie film is not suitable for either unrestricted or restricted public exliibition.

32. The CCR identifies at least three categories of films.' Rule 2(ix) defines a 'feature film' to mean "fictionalized story film exceeding 2000 metres in length in 35 mm or corresponding length in other gauges or on video". Rule.2(xi) defines 'long film' as "exceeding 2000 metres in length in 35 mm oi corresponding length mother gauges or on video". Rule 2(xvi) detmes a •short film' to be a film "with lengtli up to and includuig 2000 metres m length in 35 mm or coiTesponding length in other gauges or on video. Therefore,, fliere can at least be fom- kinds of video films that require certification. All of these do not have to be feature films or commercial films, Aclose examination ofthe Forms I, RA etc. indicate thatthe applic,ant is required to answer iu Column 2 'whearer video film is a it -film. or video film'. This is indicative of the numerous.categoiies of.fhms not restiicted to feature films. Depending onwhether afilm is a'short film' or a •long,film- the composition of the Examining Committee changes under Rule 22, Furtlier, under Rule 21(4) certain relaxation is granted as regards indicate tliat a film consisting only of religious or devotional songs and meant for public ediibition would not require certification under the above provisions. '. -

33. Under Section 4 CG Act airy person desiring to exliibit any illm is expectedto mal« an applicationto the CBFC for acertificate. On examining such film the CBFC can only grant a certificate either approving it for restricted or um-estticted 'public exllibition' in the manner set out in Section 4or refuse the application, fii the context in which they occur, it must be held that tlie words "any, person desiring to exhibit any film" in Section 4 CG Act should be understood as "any person desiring to publicly exhibit any film". Wliat then amounts to 'public exhibition' of afilm is aquestion that requires an answer. The question also assumes sigiiificaiice in tlie context of the present cases in view ofSection 52A which was inserted in the CR Act by ail amendment witii effect from 8'" Octobei 1984. The SOR of the said amendment aclaiowledges tliat"because of the recent video boom in the country, there.me reports tliat uncertified video films are bemg exhibited on alarge scale and alarge number of video parlours have also sprung up all over tlie country and tliey exhibit such films recorded on video tapes by charging admission fees fi'om their clients". It was also stated that the amendment to the CR Act was "to combat effectively the piracy that is prevalent mthe country.".Consequently the amendments, inter alia, were "to specifically makethe provisions ofthe Act applicable to video films and computer programmes" and "to require tlie producers ofrecords alid video thereof.'' Section 52A CR Act reads as under: •"52A Particulars to be inclucled in soiund recording and video films-(l) No person shah pubhsh a sound recording. in respect of any worlc unless the following particulars are displayed on the sound recording and on any container thereof; namely (a) the name and address of the person who has made the ' sound recording; •, • (b) the name and address of the owner of the copyright in such Avork; and. • \

(c) the year ofits first publication.

(2) No person shall publish avideo fi.lm in respect of any work unless the fohowing particulars are displayed' in the video film, when exJiibited, and on the -video cassette or other container thereof, namely> (a.) if- such work is cinematograph film required to be certified for e^diibition under the provisions of the Cinematograph Act, 1952 (37 of 1952), a'copy of the certificate granted by the Board of Film Certification under. Section 5-A ofthat Act respect ofsuch work; '(b> the name and address of the person who has made the video film and a declaration by him that he obtained the necessaiT licence or consent from the oMmer of the copyright in suchwork ofmaking suchvideo film; and

(c) the name and address ofthe owner for the copyright m such work." • '

34. Under SeGtion 52A (2) CR Act no person shall publish avideo film in respect ofany-workunless certainparticulars are displayed wlren exhibited, and on the video cassette or other container. The word 'publish' has to be defined under Section 3CR Act which reads as mider; '•3. B/feaning of publicatioE- For tlie purposes ol tlris ^ Act, "pubhcation" means maldng awork available to tlie public by issue of copies or by communicating the work 'to the'pubhc."

35. This in turn takes us to the phrase''communication to the public' which has been defined under Section 2(ff)CR Act as mider;. ' "communication'to the public means making any woik available for being seen or heard or otherwise enjoyed by the public directly or by any means ol displa}' oi • diffusion.other than by issuing copies of such work t regardless of whether any member of the public actually. sees, hears or otherAvise- ei^oys the work so made available. •.Explanation-Vox the purposes of this clause, communication through satellite or cable or any other means ofsimultaneous communication to more than o.ne household or place'.of residence including residential.; •,. • rooms of any hotel or hotels shall be deemed to be • communication to the pubhc." • • '

36. It appears that, the publisUng of avideo fihn mrespect of any work would,talce place when such workis made available tothe public for being seen, heard.or otlrerwise enjoyed by neans of display or difRision ••regardless of whether any member of the pubho actually sees, hears or otherwise enjoys the work so made availabley The explanation to Section ' 2(ff) CR Act wllich was inserted also by the 1984 amendment an further amended in 1995 makes it clear that exhibition through satellite IV residential rooms of any hotel or hostel shall be deemed "to be comnumication to the public;' This is a marked ehange frojii the /^ understanding ofwhat could tantamount to 'exhibition to the public'. It ts Y) no longer confined to aplace where the pubhc is admitted like acinema hall but It would include residential rooms of any hotel or hostel. Consequently, awhole new dimension has been added to the legislative understanding of 'public exliibition'.. ^

37. Abroadcast of films played on' a DVD or 'a VCD tlrrough a cable television network adds another dimension to-the issue. In Ganvare Plastics 'and Polyesters Ltd. v. M/s Telelink, where the question was whettier tlie. • showmg of video films over a cable TV network amounted to communication ofsuch film to asection oftlie public, it was Ireld that one of the tests to determine whether afilm can be saidto be shown to the public is by determining te chai-acter ofthe audience. Asecond test was determming tlie nature of the relationship between tire owner of tire copyright and the audience. Applying the latter test, it was held that an audience which pays,for watching the film'"cannot be>onsidered as domestic viewers of the owner of tlie copyriglit.,. tliey must be considered as members of llie •public." It was held tliat viewers of acable TV network who receiyc a broadcast ttaough adish antenna to which TV sets are connected, may be watchmg it in the privacy oftheir homes but would still be considered as a section of the public... - •. 38^ Wliere afilm is made on aVCD or DVD and such VCD or DVD is tantamount to publication of sucli video film withm the nieanmg of Section 52A(2) CR Act. When such fiim which is distributed or sold is 'exhibited then it should contain the certificate as required under Section 52A(2)(a). i.e.;tlie certificate ofthe CBFC under Section,5-ACG Act. In other words, ifsomeone enters ashop SellingVCDs and DVDs, purchases afilm on VCD or DVD aird then takes it to tlie residence and plays it on die DVD oi VCD player, such person should be able to first see the certificate issued by the CBFC under Section 5-A CG Act. If such person is not able to view such certificate on the VCD or DVD tlren aviolation of Section 52A CR Act takes place. In other words, in the whole chain ofproduciirg, manufacturmg, publication and coiimiunication of tirat film by dishibuting the tilm oi making it available to the public by way ofsalefill tire stage ofexhibition of such film at asubsequent stage, the person making tire-film.or the person making available such film to the public would be liable botlr under the CG Act and the CR Act. -Every person puichasing such VCD or DVD would be amember of tire public who is lilcely to exhibit the film subsequent to the purchase. The maker aird distributor of the film is expected to ajrtioipate • such exhibition ofthe film by the puickaser. 39, Tire insertionofSection52A inthe CRAct infact fortifies whatSection 5-A CG Act reqiiires. In the context in which the Petitioners have brought fortll tlrese petitions, the question as to the interpretation ofSection 5-A CG Act has to necessarily be errswered with reference to'Section 52A(2) CR Act. The two provisions, altlrougll ofdifferent statutes, reinforce each othci, films that are not certified fit for, unrestricted or restricted, public viewing. Afilm which as made available to the public either by distribution or by sale would be afilm that is sought to be publicly exhibited-withm the meaning of Section 4 CG Act.' When such film is' submitted to the CBfC lor ceilification, the CBFC would examine whether in light of the guidelines issued under Section 5-B CG Act such film is suitable for restricted or unrestricted 'pubhc exhibition'.: In tihe.context of the films, of the kind produced by the Petitioners and offered for sale through VCDs and DVDs, the-CBFC is while examinmg the films for certification not really concerned •about the place where such film is ultimately going to be e^diibited, ' 40.'There is merit in the contention of the Respondents that the piovisions under Part II CG Act (ofwhich Sections 3, 4, -5 and 5-A CG Act foim part) constitute aseparate scheme with aseparate penalty clause (Section 7CG Act) whereas -Section 10 CG Act (relating to the place of exhibition) is m Part'III which has^ aseparate penalty clause (Section 14 C.G Act). A.s will be noticed later, the so called 'absurdity' as pointed out by the counsel for the Petitioners.that might rqsult if the Petitioners DVDs are required to be certified has been taken care of; at least as far as the NCT of Delhi is concerned, by aseparate set ofstatutory Rules. 41; The contention of&e Petitioners that Section 52A CR Act is not meant for owners of copyrigllt in fitos artd only applies to those seeking to deal with copyrighted films, misses tire tntent of the l-eg.slatnre eonsconsly desires, that it sliould be publicly exliibited, aid where such film is not exempted from certification under Section 9CG Act, has to necessarily submit such film for prior certification to the CBFC under Section 4read with Section 5-A CG Act. To the extent that this requirement also forms part ofSection 52A(2) CR Act, tlie Petitioners cannot possibly contend that they do not have to comply with flie requirement ofobtaining certification under Section 5-A CG Act. As far aa the requirements under.Section 52A(2)(b) and 52A(2)(c) are concerned that information is to be displayed irrespective ofAvhether the video film is exliibited publicly or not.

42. The CP. Act underwent significant changes, fist in 1984 and then in 1995, partly by Avay of.acl<iiowledging the technological advances in medium through which films ai-e exhibited. By tiie insertion of Section 52A CRAct, these changes inevitably influencedthe notion of public exhibition for the puiTOses ofSections 4and 5-A CGAct as well. This is reinforced by tlie fact that, for aviolation of Section 5-A read with Section 4CG Act straightway two consequences would get athacted. One is the prosecution under Section 7CG Act and die otlier the prosecution under Section 68A of theCR Act which reads as under: "Penalty' for contravention of Section 52A-Any peison who publishes a sound recording or a video film in contravention of the pi-ovisions of Section 52A shall be punishable witli imprisonment which may extend to three years and shall also be liable to fine. • 43. The submission that Section W-Cd) read with Section 51 CR Act alone is film has tAen place does not hold good in the context of Section 52A CR Act. It is possible to hamioniously interpret Section 52A CR Act wilh Sections 4and 5ofthe CG Act to achieve the desired object.

44. The mere labelling by tlie film maker or distiibutor that die film is meant for private viewing will not exempt the film from prior certification under Section 5-A CG Act. Once it leaves the shop v/here the film is purchased, neidier die malcer ofthe film nor its seller, has any control on whether it is viewed by one person or by ahundred, or whether it is viewed in aplace to which the public is invited or hi the private confines of ahome. Therefore, tlie interpretation of tlie words 'public exliibition' has to necessarily be contextual keeping" in view the essential purpose of tlie CG Act and tlie insertion of Section 52A in the CR Act. In view ofthe amendments to the CR Act as impacting on the CG Act, what constitutes 'public exhibition', botli for the puiiioses ofSection 52A CR Act and Section S^A^CG Act, is no longer confined to exliibition in acinema hall. Even ifthere is no audience gatheredto watch afilm inacinemahall butthere are individuals or families watciling afilm in the confines oftheir homes, such viewers would still do it as members ofthe public and at the point at which they view the film that Avould be an 'exhibition ofsucli Ehxi.. 45. In the contextofthe presentpetitions, afthe point where amember of the public, to whom tlie Petitioners' films on DVD or VCD is made available, plays it on an equipment and views such film, whether m the confines ofa private space orodienvise, priorcertificationofthat filni in terras ofSection (2) of the CR Act the fihii is exliibiteci at that point. If at that point upon viewing ofsuch film itis found notto displaytlie certificateoftlie CBFC ^ under Section 5^A CG Act, then aviolation of Section 52A'CR Act can be said to occur. Since the malcer or distributor of the film, at the stage of offering it for sale or otherwise malting it available to the public, is awaie of the impending viewing of the film in the above maiinei, it would be * mcumbent on.such film mal<er or distributor, in terms of Section 52A CR Act read'with Section 5-A CG Act, to ensm-e that tlie film has tlie prior certification of the CBFC. In otlier words, the maker or.the distiibutor of a film made available to tlie pubhc by sale or• otlierwise is expected to anticipate die exliibition of such film by such member of the public subsequently and to ensiffe therefore that the film bears acertificate under Section 5-A CG Act. The above legal position is evident from the plain language and on acontextual inteipretation ofdie relevant provisions ofthe CG Act £ind the CR Act. _ •, • Mere display of cover

46. This Court is unable to accept die extreme position taken by some ofthe learned counsel appearing for the Respondents that the mere-display of die container in ashop amounts to public exhibition of such'film, Such an interpretation will indeed lead to absurd results including certification of such ashop being fit for "public exhibition' by the audiority coiisdtuted for mat puiTOse under die relevant rules or statutes ofdie State governments. The mere display in ashop ofdie contauier coiitainnig die VCD or DVD and Section 2(ff) ofthe CR Act. It will amoimt to offering for sale aDVD and VCD to the public either for consideration or otlierwise. Tire exJiibition itself may talce place at asubsequent point in time. However, when such exhibition takes place afld tlie film does not bear the certificate under Section 5-A of tire CG Act then the violation of Section 52A(2)(a) CR Act would sta.ncl attracted.

47. It is amoot point whetlier aperson who purchased tlie film without. venfymg the existence of certificate under Section 5-A CG Act would also be hable when such film is exliibited in the confines of his or her home. However, none of the Petitioners here me the end-users or end^viewers of such-films: As fai- as Hie present Petitioners are,concerned having manufactured and produced such films and having made such films available to tire public, they have 'published' such films within the meaning •of Section 52A CR Act. - •. • J)iscussion. ofcase law •. 48.-The decisions, extensive^ cited by counsel on botli sides, touch upon some of the aspects of the issue but none of them in fact deal with lire context mwhich the issue anses in these petitions. In the State ofA.P. v. Nagoti Venkataramana, tire Respondentwas running avideo library and 90 cassettes ofvaiious cinematograph films in Telugu, Hindi and English weie seized from him- The entire discussion in the judgment is on piracy- It appears that tlie Respondent there was distributing oi giving on hue video / owner. Itwas mthis context that the Respondents submitted that "unless th.e oAvner is identified and he comes and gives evidence'that,he had acopyright of the video film" wliich-was sought to be in violation-of Section 52A or ^ Section 51 of the Act, there is no offence made out by the prosecution and that, therefore the conviction-and sentence ofthe Respondent is not valid in law." It is in the context ofathird paiiy trying to sell or give on hire pirated copies of cinematograph films without the permission ofthe owner thereof that It was held that there was a violation of Section 52A of the CR Act •which was punishable under Section 68A of the CR Act. There was no discussion of any provision, of the CG Act. In the considered view of this Court, the said decision is of no assistance in determining the central issue that arises iiTthe present petitioiis.. • 49^In Balwinder Singh, the Petitioner owned avideo set, and aTV set for both of wliich he possessed a hcence. He hired a cotmnercial space and instaUed aTV and video set. He used the space for di.splaymg-films and charged entrance fee ofRs.2/- per show per head inclusive of entertajnment tax; The sitting capacity ofthe shop'was 25. Some viewers sat on benches _ while others sat on tlie floor. It was in the above context that tlie Delhi High Court was called upon to examine ifthere was aviolation of Section 10 CG Act which reads as under:.. "10.. Cinematograph exhibitions'to be licensed.-Save as otherwise provided in this Part, no person shall give an exiiibition by means of acinematograph elsewhere than in aplace licensed under this Part or otlrerwise than in compliance with any conditions and restrictions imposed. 50: In para 18 itwas obsei-ved as under: (AIR, p. 383),' "(18) Section 10 of tlie Cinematograph Act, which we haA/e read earher, prohibits anyone to give an exhibition by means of Cinematograph elsewhere than in a place licensed under Part-Ill of the Act and then also in accordance with and in compliance with any conditions •and restrictions imposed in the hcense. The crucial words. •in the section, in'our.opinion, are "shall given an. exliibition". Giving of an exliibitipn will be different^ from viewing a programme received on a television set by public• transmission or with the aid of an apparatus like avideo. The confxision which the petitionei sought to create was that projecting films with the aid of video and television would amount to viewing and not exhibiting. The distinction between viewing and exhibiting is obvious. A person Avho sees a film views it. A person, who makes it possible for others to see afilm exhibits it or gives an exliibition 9f the film. Aperson is permitted to give an exliibition only in alicensed premises and that. •. also inaccordance with the conditions ofthe said hcense. He cannot give an exhibition anywhere he likes though he may be the owner of the premises or 'a tenant oI the premises." • •

51. The Division Bench of tliis Court in the above decision was making a distinction between the words 'give an exliibition' and 'view'. It was stated tliat when it is made possible for otiiers to see afilm, ai-i exhibition is given ofti-iat film. All this was in the context ofwhere such an exhibition could be given. It;was held tlmt it had to be aplace certified or licensed as being tit •for such exhibition under Section 10 CG Act. • Petitioner which was a society registered, under the Societies Registration Act, 1860. ADivision Bench ofthe Punjab &Haryana Pligh Court heid that •it would attra.ct Section 3 of the Bihar Cinemas (Regulation) Act, 1954.which Avas identical to Section 10 CG Act. Para 10 of the said decision, which are relevant, read as under: (AIR, pp 184-85) "10. It may next be pin-pointed thatthe Act does not use the word-'public' or 'private' with regard to. die place or •• ' the same appellation with regard to the word exhibition. Therefore, to impose or unduly emphasise the public or private nature of the premises would not be Avell •Warranted in the context of the Act. 0.n btshalf of the, respondents itwas argued with plausibility that even ma private home if there is- a display of saris or even of •floAvers Avhich is tlirown open to large sections ofpeople then' in common parlance too itmay well come within the ambit of an exliibition of saris or -flowers.- This would consequently be the more so.Avhen vieAA^ed irl the context • and.the purposes of the Act. Therefore, Avhere larger groups of the community orTarger sections of the.public. may have access to view aperformance, the same would become an,exl.iibition irrespective of the nature of the - • place Avhere it is held. Ifthe purpose, of the regulation is • to safeguard public health, public safety or public order • then it is irrelevant where the section of the public has collected —be the place one with a AA^holly unrestiicted • right of entry or a private one with severe restrictions thereto. It Avas submitted —and, in my view, rightly —• that'if a thousand people or more are'vieAvmg the ' showing of a film on.the V.C.R.-- T.V,. screen, it is, irrelevant whether the same is being done in a cinema hall or aclub hall. In either case itwould be an exhibition i "considerations of public health and public safety would be identical. Viewed from another angle, the question is not of any inherent right of access but the factum of access and collection of a large number of persons rn a • place. Once that is so, the display or performance Vbecomes an exhibition under the Act irrespective of the •fact whether the place is public or private, whether right •.. of access is unrestricted or controlled or whether the same is commercial for payment or merely by aesthetic invitation. Consequently, to view the ma.ttei fiom a. narroAV m5'opic angle of the place_ being teclmically a public or aprivate one 'may well tend to defeat the laigei purposes of the Act and the requirements.or regulation and licensing in the interest ofpublic health and safety. 53.. In Restaurant Lee, aDivision Bench ofthe Madhya Pradesh High Couit was cahed upon to' examine ifseeing of afilm through VCR on aTV screen and collecting apayment from the customer Avould attra.ct Section 3ofthe Madhya Pradesh Cinema. (Regulation) Act, 1952 which was identical to ^ •Section 10 CG Act. In para 8it was observed as under (AIR, p. 150): "8...One.of the meanings of "exhihit" is "to show publicly for the purpose of amusement or instruction." • "Exhibition" means a public display, i.fc. a display to Avhi.ch pubhc is admitted [See Oxford English Dictionary Vol. Ill, pages 408-409 and 1:he Random Etouse.Dictionary Unabridged Edition page 499]. It is mthis sense that the word "exhibition" as used-in Sec.[3] has to • be understood. For example, if a VCR is used loi playing apre-recorded cassette of amovie in one's own residence and' the shov/ is restricted to the family members or friends and the pubhc is not admitted the prohibition ofSection 3. The Petitioners, however, show the moves witli the lielp of VCR and TV sets in their restaurants where 'public is admitted. This clearl}'.amounts to ejdiibition by means of a cinematograph bringing the activity within the bari of Section 3. The Petitioners camiot indulge into this activit^^ unless they; obtain a licence for their restaurants under the Act.".54, In Dilip Singh, it was held that running of avideo parlour by a person • who. exliibited films and movies on TVs- and VCRs would, attract the provisions ofthe Rajasthan Cinemas (Regulation) Act, 19.52. This judgment again had to deal with the place ofexhibition.

55. Itmust be observed that the requirement for obtaining certification for a •film that, is sought to be publicly exhibited by distribution or sale of VCDs or DVDs was not aquestion that arose for consideration many ofthe above cases. These cases Avere really concerned with certification of aplace Avhere such film was going to be e^diibited. In the context ofthose cases, the places where such films were exhibited were either a shop (like in Balwmder Singh), or arestaurant (like in Restaurant Lee), or avideo parlour (like m Dilip Singh) or aclub (like in B.K Club). On the othe;.r hand, the present petitions are.concerned with the purchasing of aVCD or DVD from ashop and later being taken home and being viewed on a TV screen by an individual. Since this context did not directly arise in the facts oi the cases, the observations made, that sudr an exliibition would amount to public exliibition should be held to be observations made in obiter.

56. Adifferent approach appears to have been taken by the Bombay High Tourt'in M/s. Video Master Bombay. The factual context was hoAvever also'. ^" different. The Petitioners there, were challenging the orders of the • [ Respondents requiring them to submit the video tapes made from certified films and collecting fees on that account. It was observed after discussing the provisions'of the CG Act that "the examination and certification of the film is necessary ifit is,meant for public exhibition only and not otherwise. Thereafter in para 11 itwas observed as' under (AIR, p. 43.2):

• Section 4(1) is pertinent. It is the desire, or intention which is relevant for deciding the question. The film,which is meant for sale and distribution to the public in general is nothing but a public exiiibition of the film: Therefore any film which is meant for public exhibition. will require examination and certification in accoidance with the procedure prescribed by the Act. The mateiial on which such a film is produced will not be very much relevant. This position is also not disputed before us." 57.. HoAvever, that was not the main question that arose mM/s. Video Master Bombay. The discussion then turned to Rule 30 of the/XR Avhich requires pasting ofaduplicate copy ofPartIofthe certificate on tlte film ofwhich a. copy was iimde. This requirement was stated to have served the statutory purpose of controlling and regulating the public exhibition of the video films. The Bombay High Court accepted tlie contention of tlie Petitioners the photocopy of such certified fihii "cannot be subjected to the procedure prescribed by Rule 21, over again." It was concluded that "thus' an application for examination and certification will not be necessary ifit is an exact video copy of already examined and certified film." In the present petitions, the question is• not whether the Petitioners would, require a •certification if they seek to distribute video copies of'an already certified film. •: •

58. It'may be noticed that the order dated 24^' September 2007 issued by the I&B Ministry, under Section 9 CG Act to a certain extent accounts for the above decision, in M/s. Video Master Bombay, llie said order reads as under: ' "No.807/3/2007-F(C). Government of India Ministry ofInformation •& Broadcasting NeAV Delhi-1, the 24"'September, 2007 ORDER In exercise-of the powers confeiTed by Section 9 of the • Cinematograph Act, 1952.(37 of 1952), the Cential Government _ hereby grants exemption- from the •provisions relating to certification of films, contaiiied in Part II ofthe said Act and the Rules made thereunder, to the ejdiibition ofthe foliov/ing categories offilms;

(i) P.ecordings ofsports events telecast live in India.

(ii) Recordings of animation programmes, telecast in ' •, India. • •, CBSE school cuniculum upto class' V, except-in sex education.

(iv) Songs compilations from films certified as 'U' •subject to the condition that-the compiler will indicate the certificate number and category in respect of each such song included in the compilation. (y) Video cassettes, CD or DVD copies offilms already certified for theatrical -release,.provided that a legible. -- copy • of the certificate -is inserted in the video cassette/DVD/CD. The outer surface of the video • cassette, CD or DVD should also clearly mentioned the category ofcertification viz.'U','UA',''A'-or'S'.

(vi) Classical music performances.

(vii) Indian classical dance performances.-. (viii) Recordings of programmes telecast •by- Doordarshan... ',

2. This exemption will take effect immediate!)^ and will operate until further orders."

59. It appears that when difficulties Avere anticipated in requiring, certification of any and every film, the Government itself exercised the po-wers under Section 9CG Act to issue such oidei. Effect ofthe Delhi Rules'1986-

60. It may be noticed here that the Delhi Rules 1986, which were adverted to /I some ofthe above judgments. Rule 3thereofreads as under:

',. - supplied)

61. An apprehension was expressed by some' ol; the Petitioners that once a VCD or aDVD film is purchased with certification under Section 5-A CG Act, it cannot be viewed by such purchaser even within the confines of liis home without violating Section 10 CG Act. This has been taken care of by the above provision. Rule 3_ ofthe Delhi Rules 198(5 specifically states that viewing on aTV screen though'a VCR for domestic purposes by the family members of ahousehold does not require alicence under Section 10 CG Act. • • 62'. The upshot ofthe above discussion is that: • (a) Once afilm is made or produced in aDVD or VCD or any other format and is made available or distributed to the public or offered for sale to tlie public, it will amount to publication ofsucll film wrihm tlie meaning ofSection 52A(2)(a) ofthe CR Act. (b) Intlie context oftiiepresentpetitions, attire pointwhere amember ni ' ' available, plays it on an equipment and Adews such film, whether in the confinps of aprivate space or otherwise, prior certification ofthat • film m terms of Section 5-A CG Act would become necessary, since ^ for the purposes ofSection 52A(2) ofthe CR Act the film is exhibited at that point. •..

(c) The maker or the distributor of afilm made available to the public •. by sale or otherwise is expected.to anticipate the exliibition of such film by such member of the public subsequently and to ensuie therefore that the film bears acertificate under Section 5-A CG Act.

(d) Whether such film, if it contains purely religious or devotional • 'songs, should be exempted from the certification'is amatter for the- Goveniment: of India to take a decision on in exercise of its powers under Section 9 CG Act. However, absent such exemption under • Section 9 CG Act, it-must be held that the films being produced and. manufactured by the Petitioners, even ifthey contain purely religious or devotional songs as claimed by them, would.require prior • certification by the CBFC under Section 5-A CG Act. The absence of such certificate in the film itself when it is exhibited will attract the: violation of Section 52A(2).(a) CR Act. Consequences ofthe above interpretation

63. There are, ofcourse, consequences to this interpretation ofthe provisions • ofthe CG Act and the CR Act. It will mean that the certification work ofthe CBFC will increase'manifold. However, this by itself cannot mean that the i-equiremei-it, of obtaining certification is an unreasonable one for the punioses ofArticle •19(l)(a) read with Article. 19(2) ofthe Constitution. The scope' of these petitions does not involve examining the constitutional, vahdity ofany ofthe provisions ofthe CG Act or the CR Act. The Court has D 64.. This Court had required the CBFC-to provide information onho.w many non-feature fihiis on VCDs and DVDs were submitted to it for certification during the last five years. The information submitted b}-^ alettei dated 24 September 2010 ofthe CBFC shows.that in the last five years the number of music/films andfother VCDs and DVDs certified by the CBFC, Delhi during the last fiveyears were as under;.. •• Year No..of Music/Films a.nd other VCDs & DVDs certified"by the CBFC, Delhi 2006'. 1283 2007, 3228 2008 • 968 2009 •. 687 201.0. •.: - (Till 24"^. Sei3t.2010). 355 •,.•••.• 1 / Total 6.521

65. The drop in the number of films-submitted for certification since 2007 could be attributed to the interim orders passed by this Court m these petitions. Previous to tlie raids tiiat were conducted in December 2006, tliere appears to have been no effort to prosecute tlie manufactxu-ers or distributors of DVDs and VGDs containing pui-eiy religious matter for violation of Section^read with Section 5-A ofthe CG Act and Section 52A(2)(a) ofthe CR Act. This can only be attributed to tlie understanding oftlie CBFC and the UOI tlirougli tlie I&B Mmistty as well as the•State Governments, including the GNCTD, that such fdms, which contain only religious songs, L above factual position, Mi". Chandliiok learned ASG fairly stated that M^iateAAer. the decision of this Court, the UOI -Avoiikl apply it only prospectively. • Co.nsequential directions., ' • 66-. As far as the Petitioners before this Court who are manufacturers and/or distributors or sellers of cinematograph films, each of them will adhere to the laAA^ as explained in this judgment and any film which is hereafter made by-them Avill, before being sold or offered for sale or distributed by them to.the public mDVD, VCD or any electronic or other format, be first submitted to the CBFC for certification/It is for the CBFC to.decide whetJier it w.ants to increase its machinery to. ensure that sucli certification takes place expeditiously. It is also meamvhile for the UOI to decide whethei afdm • containing only religious or devotional material." would require to be exempted from.certification under Section 9of the CG Act and on Avhat • terms. As far as the CBI is concerned it can proceed Avith the prosecutions " •already launched in accordance Avith law. However, in view of the statement, by the learned ASG, the presentjudgment will apply prospectively and will not be used'by the CBI to register any fresh cases mrespect of the films already produced and offered,for sale or distributed to pubhc by any ofthe Petitioners.-The CBI and the laAV enforcementmachinery.ofthe GNCIDwill be free to proceed against any of the Petitioners if they act hereafter in contravention of the law., • c. 67.-The writ petitions, including W.P. (C) No.' 6481 of 2007, are disposed of in- the above terms. The interim orders are vacated. All the pending •Applications are disposed of - •

S. MUBIALIDHAR, J.