3rd C.L. Agrawal Memorial Moot Court Competition Case

3RD C.L.
AGRAWAL MEMORIAL MOOT COURT COMPETITION, 2019
MEMORANDUM ON BEHALF OF APPELLANT TEAM CODE
3rd C.L. AGARWAL
MEMORIAL MOOT COURT
COMPETITION
2019
BEFORE THE HON’BLE
HIGH COURT OF MUMBAI
MR. KISHAN JUNEJA & Ors. (APPELLANT)
V.
CENTRAL BOARD OF FILM CIRTIFICATION & Ors. (RESPONDENT)

MEMORANDUM ON THE BEHALF OF THE APPELLANT
1
3RD C.L. AGRAWAL MEMORIAL MOOT COURT COMPETITION, 2019
INDEX
INDEX.............................................................................................................2
TABLE OF ABBREVIATION..................................................................................3
INDEX OF AUTHORITIES....................................................................................5
STATEMENT OF JURISDICTION...........................................................................8
SYNOPSIS OF FACTS .........................................................................................9
ISSUES RAISED...............................................................................................11
SUMMARY OF ARGUMENTS..............................................................................12
PLEADING / ARGUMENT ..................................................................................13

•WHETHER THE ORDER OF CBFC, DENYING CERTIFICATION TO THE FILM ‘BEING
GAY’, IS ARBITRARY AND VIOLATIVE OF FUNDAMENTAL RIGHTS OF APPELLANTS?
•WHETHER THE APPELLANT ARE LIABLE FOE SELLING AND PROMOTING
OBSCENITY THROUGH THE FILM ‘BEING GAY’ AND ONLINE RELEASE OF THE
TRAILER OF THE FILM BY THE APPELLANT IS ILLEGAL?
•WHETHER THE ACTION OF RESPONDENT STATE GOVERNMENTS TO BAN
SCREENING OF THE CONCERNED FILM IN THEIR RESPECTIVE STATE
UNCONSTITUTIONAL AND ULTRA VIRES OF THE CONSTITUTION OF INDIA?
PRAYER......................................................................................................... 35 2
TABLE OF ABBREVIATION
1. § SECTION
2. ¶ PARAGRAPH
3. & AND
4. Ads ADVERTISEMENTS
5. AIR ALL INDIA REPORTER
6. Annex. ANNEXURE
7. Anr. ANOTHER
8. Art. ARTICLE
9. Cr. CRIMINAL
10.CrLJ CRIMINAL LAW JOURNAL 11.CrPC CODE OF CRIMINAL

PROCEDURE, 1973
12.CS CHARGE-SHEET
13.SDF SOIL DEFENCE FORCE
14.DW DEFENCE WITNESS
15.FIR FIRST INFORMATION REPORT
16.Govt. GOVERNMENT
17.HC HIGH COURT
18.Hon'ble HONORABLE
19.i.e. THAT IS
20.IPC INDIAN PENAL CODE, 1860
21. No. NUMBER
22.Ors. OTHERS
23.P. PAGE
24.PS POLICE STATION
25.PW PROSECUTION WITNESS
26.SC SUPREME COURT
3

27.SCC SUPREME COURT CASES
28.SCR SUPREME COURT REPORTER
29.Supp. SUPPLEMENTARY
4
INDEX OF AUTHORITIES
STATUTES
1. Constitution of India 1950
2. Indian Penal Code, 1860
3. The Criminal Procedural Code, 1973
4. The cinematographic act, 1952
BOOK
1. K.D Gaur, Indian Penal Code, 6th edition, LexisNexis, Universal Law
Publishing
2. K.D Gaur ,Criminal law cases and materials, 8th edition

LexisNexis
3. Prof. Singh M.P., Shukla V.N., Constitution of India, 2016 edition, Eastern Book Co.
(EBC)
4. Prof. Hoffmann, The Indian Penal Code, Andesite

Press
DYNAMIC LINKS
1. www.manupatra.com
2. www.scconline.com
3. www.heinonline.org
4. www.westlawindia.com
5. www.lexisnexis.com
6. www.ebscohost.com
7. www.indiankanoon.org
5
CASES
1. Gajanan P. Lasure & Anr. : vs The Central Board Of Film (WRIT PETITION NO.6029 OF
2011)
2. Anand Patwardhan v. Director General of Doordarshan ( W.P 2863 of 2003 (reported in

2004
(5) Bom CR 651))
3. Bobby Art International v. Om Pal Singh Hoon ( AIR 1996 SC

1846)
4. Bobby Art International v Om Pal Singh Hoon (1996) 4 SCC

J)
5. F.A. Picture International vs CBFC ( AIR 2005 Bom 145, 2005 (1) BomCR 5, 2005 (2) MhLj
869)
6. Jagjivan Ram & Ors. reported ( (1989) 2 SCC 574 (Pera 35 and
36))
7. Kavita Phumbhra vs Commissioner Of Customs (Port) ( GA No. 2284 of 2009 CUSTA No.
10
of 2009)
8. Maneka Gandhi v. Union of India ( [1978] 2 SCR 621)
9. Manohar Lal Sharma vs Sanjay Leela Bhansali ( WRIT PETITION (CRIMINAL) NO. 191
OF
2017)
10. Mushtaq Moosa Tarani v. Government Of India & Ors ( Writ Petition (L) No. 269 of
2005 )
11. Manu Kumar & Anr. vs Central Board of Film Certification and Anr. ( /sc/1709/2015 :
(2015)
10 scc206)
12. Miller v. California ( 413 U.S. 15 (1973))
13. M/S Prakash Jha Productions & Anr vs Union Of India & Ors. ( FAO (OS ) 505 of
2012)
14. Masterpiece Cakeshop v. Colorado Civil Rights Commission ( 584 U.S. ___
(2018))
15. Naz Foundation v. Govt. of NCT of Delhi (WP(C)

No.7455/2001)
16. Naraindas v. State of Madhya Pradesh( [1974] 3 SCR

624)
17. Ramesh Pimple v. The Central Board of Film Certification( W.P 2864 of 2003 (reported in
2004
(5) Bom CR 214))
18. Ranjit Udeshi v State of Maharashtra (1962) ( [1965] 1 S.C.R.,

65)
19. R v Hicklin ( L.R. 2 Q.B. 360 (1868))
20. Ranjit Udeshi v State of Maharashta ( 1965 AIR 881, 1965 SCR (1)
65)
21. S. Rangarajan v. P. Jagjivan Ram and Ors. ( (1989) 2 SCC

574)
6
22. Suresh Kumar Koushal vs. Naz Foundation ( (2014) 1 SCC

1)
23. Ranjit Udeshi v State of Maharashtra (1962) ( [1965] 1 S.C.R.,

65 )
24. Union of India Vs. K.M. Shankarappa reported ( (2001) 1 SCC

582)
25. Wattan Sharma vs Union Of India And Ors (CWP No.12510 of

2016)
7
STATEMENT OF JURISDICTION
THE HON’BLE HIGH COURT OF JUDICATURE AT BOMBAY EXERCISES

JURISDICTION
TO HEAR AND ADJUDICATE OVER THE MATTER UNDER ARTICLE 226(1) OF THE
1
CONSTITUTION OF INDIA, 1950.
THE APPELLANT HUMBLY SUBMITS TO JURISDICTION OF THE HON’BLE COURT.
HOWEVWER, RESERVES RIGHT TO CHALLENGE THE SAME. THE PROVISION

UNDER
WHICH THE APPELLANT HAS APPROACHED THE HON’BLE COURT IS READ

HEREIN
UNDER AS:
Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation
to 1which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose
8
SYNOPSIS OF FACTS
• Mr. Kishan Juneja is an Indian film director and producer and is also the Managing Director
of
Kalka Films Pvt. Ltd. In April, 2018 a news channel interviewed Mr. Kishan on what he
intends
to put forth in his upcoming film and whether the title of the film has been decided ‘Being
Gay’
and shall talk about how homosexual couples face socio- religious intolerance in Indian
society.’
• The interview went viral on the internet and soon several religious organisations were seen
issuing statements against the film arguing that insult to their religions, in any form, is
intolerable.
When the interview went viral, then the leaders of different religions start protesting and said
that
homosexuality is against of their moral

values.
• The shooting of the movie was completed in August, 2018 and the film was submitted to the
Central Board of Film Certification on October 3, 2018. On October 15, 2018 five Chief
Ministers declared that ‘the film shall be banned in their respective states, even if it gets
clearance
from the Central Board of Film Certification (CBFC). On October 31, 2018, CBFC notified
that
Being Gay has been denied certification on the ground that ‘human sensibilities may be
offended
since the film’s content was vulgar and obscene’ and gave Mr. Kishan fifteen days time to
represent his case before the CBFC. On November 5, 2018, Kalka Films Pvt. Ltd. released
the
online trailer of Being Gay on their website seeking the opinion of public in this regard.
Within
the next two hours of its uploading, the video was shared by around 55,000 people from all
religions and gender, wherein 80% of the viewers thought the movie to be pro-society and
favoured its release. On the other hand, protests in favour and against the release of the
film
started occurring.
• On November 6, 2018, during one such protest in the state of Uttar Pradesh, the protestors
against
the movie turned violent resulting in clashes and death of two persons and another ten
persons
being severely injured. On November 7, 2018 Mr. Kishan appeared before CBFC to defend
his
film where he argued that the movie did not hurt the tenets of any religion and that the
physical
intimacy shown in his movie was very less as compared to those shown in movies that have
previously been certified and cleared by the CBFC. He further pleaded to the CBFC to
consider
the public opinion on his film on his website. But CBFC rejected all contentions of Mr.
Kishan
and notified on November 28, 2018 that, ‘The film ‘Being Gay’ has been denied Certification
by 9
the CBFC and shall not be exhibited in any theatres or online platforms across India.
Reasons
stated are;
Depicting physical intimacy between homosexual couples may deprave the moral standards
of the
Indian society and corrupt the minds of the audience and hence is obscene, Since
homosexuality is
disapproved by all major religions in India, its depiction in any manner whatsoever amounts to
vulgarity, The online public opinion cannot be a yardstick for Certification and CBFC is under
no
liability to consider the public opinion in its decision process, Since the film has been denied
certification, the release of its trailer or any advertising material on online platforms is illegal
and
should be immediately withdrawn.
• On November 29, 2018, Mr. BaijuNath, Chief Minister of the state of Uttar Pradesh issued a
statement that ‘in light of the violent incidents that have occurred due to the film Being Gay,
the
film shall be banned in the state of Uttar Pradesh, even though it might be cleared by the
CBFC.
On December 2, 2018, Mr. Kishan met the CBFC Chairperson and expressed his protest
and
anguish over CBFC’s order on his film, calling the decision arbitrary, unreasonable and
biased.
He told the Chairperson that he would appeal against the order, and that he would not
remove the
trailer from the website since the jurisdiction of the CBFC did not extend to content on
internet
and he was free to upload any part of the film or the trailer on the
internet.
• Mr. Kishan appealed before the Film Certification Appellate Tribunal (FCAT) against the
decision
of the CBFC, on December 10, 2018. FCAT, after hearing the matter upheld the decision of
the
CBFC. The Tribunal also directed Kalka Films and Mr. Kishan to remove the trailer from the
website since it was illegal to exhibit an uncertified movie or anything related to it, on any
media
whatsoever. In the meantime, on December 7, 2018, Mr. Himadri Seni from Hindu Bhai
Sabha
filed a FIR against Mr. Kishan, Anant Kapoor, Sultan Shariff and Ananya Khurana under
Section
292 of the Indian Penal Code. Mr. Kishan thus filed an Appeal before the Bombay High
Court
against the order of the CBFC, being in violation of his Fundamental rights with a request to
issue
directions to the concerned State Governments to not ban the screening of his film in their
respective states. In the same petition, he also requested the Court to quash the FIR filed
by Hindu
Bhai Sabha and the fatwa issued against him and others of his team stating that his movie
is not in
violation of law of the land. The High Court admitted his petition and the matter has been
listed
for hearing.
10
ISSUES RAISED
ISSUE 1 - WHETHER THE ORDER OF CBFC, DENYING CERTIFICATION TO THE FILM
‘BEING GAY’, IS ARBITRARY AND VIOLATIVE OF FUNDAMENTAL RIGHTS OF
APPELLANTS?
ISSUE 2 - WHETHER THE APPELLANT ARE LIABLE FOE SELLING AND PROMOTING
ISSUE 3 - WHETHER THE ACTION OF RESPONDENT STATE GOVERNMENTS TO BAN
11
SUMMERY OF ARGUMENT
ISSUE 1 - WHETHER THE ORDER OF CBFC, DENYING CERTIFICATION TO THE FILM
‘BEING GAY’, IS ARBITRARY AND VIOLATIVE OF FUNDAMENTAL RIGHTS OF
APPELLANTS?
Art 19 (1)(A) - In this article the Constitution of India guarantees to all its citizens the right to
freedom of speech and expression. The law states that, “all citizens shall have the right to
freedom of
speech and expression”. And in the present case this right of the Appellant is
violated.
ISSUE 2 - WHETHER THE APPELLANT ARE LIABLE FOE SELLING AND PROMOTING
As regards the meaning and definition of obscenity is concerned, it is difficult to give any
precise and
particular definition in view of cultural, religious and social diversity in the society. Oxford
dictionary
defines ‘obscene’ as (of the portrayal or description of sexual matters) offensive or disgusting
by
accepted standards of morality and decency. It is derived from the French word ‘obscene’ or
Latin
‘obscene’. However, the definition of obscenity is subject to cultures of every country. In the
present
case the question of morality is raised and this movie is to send the message to the society in
the
favour of the morality which can help to understand the persons whose image in the society is
not so
good.(Gays) so the online release of the trailer of the film by appellant is not
illegal.
ISSUE 3 - WHETHER THE ACTION OF RESPONDENT STATE GOVERNMENTS TO BAN
After the cases of the movies like Udta Punjab, Padmavat, Black Friday etc. the State
Government
can merely get the screening of a film to be suspended if breach of public peace is
anticipated.
However, it has no lawful authority to completely ban a film from being screened in a
particular
state. Hence, it would be wrong on the part of the states which are seeking to ban the film
“Being
gay” from being screened.
12
ARGUMENTS / PLEADINGS
1. WHETHER THE ORDER OF CBFC, DENYING CERTIFICATION TO THE FILM ‘BEING
GAY’, IS ARBITRARY AND VIOLATIVE OF FUNDAMENTAL RIGHTS OF APPELLANTS?

Art 19 (1)(A) - In this article the Constitution of India guarantees to all its citizens the right to
freedom of speech and expression. The law states that, “all citizens shall have the right to
freedom
of speech and expression”.
The cinematographic act,

1952
Films are certified under 4 categories. Initially, there were only two categories of certificates –
"U" (unrestricted public exhibition) and "A" (restricted to adult audiences). Two more
categories
were added in June 1983 – "U/A" (unrestricted public exhibition subject to parental guidance
for
children below the age of twelve) and "S" (restricted to specialized audiences such as doctors
or
scientists).[2] In addition to these certifications, the board may also refuse to

certify.
• U (Unrestricted Public Exhibition)
Films with the U certification are fit for unrestricted public exhibition and are family friendly.
These
films can contain universal themes like education, family, drama, romance, sci-fi, action etc.
Now,
these films can also contain some mild violence, but it should not be prolonged. It may also
contain
very mild sexual scenes (without any traces of nudity or sexual

detail).
• U/A (Parental Guidance for children below the age of 12

years)
Films with the U/A certification can contain moderate adult themes, that is not strong in nature
and
can be watched by a child under parental guidance. These films contain moderate to strong
violence, moderate sex scenes (very little traces of nudity and moderate sexual detail can be
found),
frightening scenes or muted abusive and filthy

language.
• A (Restricted to adults)
Films with the A certification are available for public exhibition, but with restriction to adults.
These films can contain heavily strong violence, strong sex (but full frontal and rear nudity is
not
allowed usually), strong abusive language (but words which insults or degrades women are
not
13
allowed), and even some controversial and adult themes considered unsuitable for young
viewers.
Such films are often recertified for TV and video viewing, which doesn't happen in case of U
and
U/A certified movies.
• S (Restricted to any special class of

persons)
Films with S certification should not be viewed by the public. Only people associated with it
(Engineers, Doctors, Scientists, etc.), have permission to watch those

films.
Additionally, V/U, V/UA, V/A are used for video releases with U, U/A and A carrying the same
meaning as above.
• Refusal to certify.
In addition to the certifications above, there is also the possibility of the board refusing to
certify the
film at all.
Guidelines for certification :
1. anti-social activities such as violence are not glorified or

justified
2. the modus operandi of criminals, other visuals or words likely to incite the
commission of any offence are not

depicted;
3. scenes -
1. showing the involvement of children in violence as victims or perpetrators

or
as forced witnesses to violence, or showing children as being subjected

to
any form of child abuse.
2. showing cruelty to, or abuse of animals, are not presented

needlessly
4. pointless or avoidable scenes of violence, cruelty, and horror, scenes of violence
primarily intended to provide entertainment and such scenes as may have the
effect
of de-sensitizing or de-humanizing people are not

shown;
5. human sensibilities are not offended by vulgarity, obscenity or

depravity;
6. such dual meaning words as obviously cater to baser instincts are not
allowed;
7. scenes degrading or denigrating women in any manner are not

presented;
14
8. scenes involving sexual violence against women like attempt to rape, rape or
any
form of molestation or scenes of a similar nature are avoided, and if any such
incidence is germane to the theme, they shall be reduced to the minimum and
no
details are shown
9. scenes showing sexual perversions shall be avoided and if such matters are
germane
to the theme they shall be reduced to the minimum and no details are
shown
10.visuals or words contemptuous of racial, religious or other groups are not

presented
11.visuals or words which promote communal, obscurantist, anti-scientific and anti-
national attitude are not

presented
12.public order is not
endangered
• The Board of Film Certification shall also ensure that the

film
• Is judged in its entirety from the point of view of its overall impact;
and
• Is examined in the light of the period depicted in the films and the contemporary
standards
of the country and the people to which the film relates provided that the film does not
affect the morality of the audience
• The Board shall scrutinize the titles of the films carefully and ensure that they are not
provocative, vulgar, offensive or violative of any of the above-mentioned

guidelines.
In the case Gajanan P. Lasure & Anr. : vs The Central Board Of Film the counsel for the 2
petitioners contended that the petitioners are practicing Advocates enrolled with the Bar
Council of
Maharashtra & Goa. They are also activists and closely associated with the social movement
related
to protecting the rights of Backward Classes, particularly Scheduled Castes and Scheduled
Tribes.
The petitioners have appeared in various matters before this Court and other Courts for
various
litigants and defended the cause of Backward Classes based on the policy of reservation
mandated
by the Constitution. The petitioners are members of the Scheduled Castes community. The
court
held the view that the prayer made by the petitioners for issuance of direction to the
respondents to
arrange for a special screening of the film "Aarakshan" before its release, which is due, being
WRIT PETITION NO.6029 OF 2011 2
15
wholly misconceived and devoid of merit, the same is rejected and, therefore, we answer the
question in the negative.
In Maneka Gandhi v. Union of India Bhagwati J., observed at 696: "Democracy is based 3
essentially on free debate and open discussion, for that is the only corrective of Government
action
in a democratic set up. If democracy means government of the people by the people. it is
obvi- ous
that every citizen must be entitled to participate in the democratic process and in order to
enable
him to intelligently exercise his right of making a choice, free and general discussion of public
matters is absolutely essential."
The learned judge in Naraindas v. State of Madhya Pradesh while dealing with the power of
the 4
State to select text books for obligatory use by students said at 650: "It is our firm belief, nay,
a con-
viction which constitutes one of the basic values of a free society to which we are wedded
under our
Constitution, that there must be freedom not only for the thought that we cherish, but also for
the
thought that we hate. As pointed out by Mr. Justice Holmes in Abramson v. United States, 250
U.S.
616: "The ultimate good desired is better reached by free trade in ideas--the best test of truth
is the
power of the thought to get itself accepted in the competition of the market." There must be
freedom of thought and the mind must be ready to receive new ideas, to critically analyse and
examine them and to accept those which are found to stand the test of scrutiny and to reject
the
rest."
In the case Manu Kumar & Anr. vs Central Board of Film Certification and Anr. The
Central 5
Board of Film Certification has refused to grant certificate for exhibition of the film citing the
following reasons:- “Reasons for “Certificate Refused” to the film The theme is full of hate
speech/
inflammatory speeches given by all the leaders falls on different caste, communal talks,
derogatory
remarks and of release may cause communal disharmony, unrest and disturbance. Hence
refused for
certification under guidelines sections 2(xii), (xvii), (xiii), (xviii) and 3 (i).”
[1978] 2 SCR 621 3 [1974] 3 SCR 624

4
/sc/1709/2015 : (2015) 10 scc206 5
16
In view of the above, as well as the principles enunciated here in above, I am of the view that
the
order dated 16.10.2015 of the Board and the order dated 04.04.2016 of the FCAT are not
sustainable. The impugned orders are accordingly quashed. The matter is remitted to FCAT
to re-
examine the film of the petitioner in terms of the principles enunciated here in above and pin
point
the scenes or dialogs which may be in conflict with the Guidelines for Film Certification
framed
under Section 5(B) of the Act. The FCAT shall pass appropriate speaking order within a
period of
four weeks from today. The writ petition is disposed of in the above terms. There shall be no
orders
as to Costs.
In the case, F.A. Picture International vs CBFC Dr. DY Chandrachud, J.:— “Chand Bujh
Gaya’ 6
is a feature fim produced by Faaiz Anwar. The film dwells on the travails of a young couple - a
Hindu boy and a Muslim girl — whose friendship and lives are torn as under in riots in the
State of
Gujarat. The Central Board of film Certification (‘CBFC’) refused to certify the film for
exhibition.
The Film Certification Appellate Tribunal affirmed that order. The producer is before the Court
under Article 226 of the Constitution. For the reasons that we now proceed to record, we have
come
to the conclusion that the reasons which weighed with the CBFC and the Tribunal constitute a
clear
infringe-ment of the fundamental right of the producer under Article 19(1)(a) of the
Constitution.
We hold that the reasons are unsustainable and that certification for the film could not lawfully
have
been refused. Besides “Chand Bujh Gaya’, Mr. Faaiz Anwar states that he has been
associated with
the production of several films, among them “Dil Hai Ke Manta Nahi”, “Sajjan* and “Vijay
Path’.
“Chand Bujh Gaya” was pro-duced under the banner of F.A Picture International with an
aggregate
footage of 11602 feet comprised in 15 reels. On 22nd September, 2003 the petitioner applied
for
certification of the film for public exhibition to the regional office of the CBFC at Calcutta. The
film was examined by the Examining Committee. On 24th September, 2003 the petitioner
received
an intimation that the Committee recommended a refusal of cer-tificate to the film for the
following
reason:
“The Film from the end of Reel No. 8 contains visuals as well as dialogues, which may have
the
danger of in-citing communal violence among the people. Besides, a large number of visuals
are
extremely terrifying and as such unsuitable for public

exhibition.”
AIR 2005 Bom 145, 2005 (1) BomCR 5, 2005 (2) MhLj 869 6
17
In view of the above, as well as the principles enunciated here in above, | am of the view that
the
order dated 16.10.2015 of the Board and the order dated 04.04.2016 of the FCAT
are not
sustainable. The impugned orders are accordingly quashed. The matter is remitted to FCAT
to re-
examine the film of the petitioner in terms of the principles enunciated here in above and pin
point
the scenes or dialogs which may be in conflict with the Guidelines for Film Certification
framed
under Section 5(B) of the Act. The FCAT shall pass appropriate speaking order within a
period of
four weeks from today. The writ petition is disposed of in the above terms. There shall be no
orders
as to Costs. The Supreme Court had occasion to revisit the issues which arise before the
Court when
an appeal was carried against the judgment of the Delhi High Court in relation to the film
“Bandit
Queen”. In Bobby Art International v. Om Pal Singh Hoon , Mr. Justice S.P Bharucha (as
the 7
Learned Chiet Jus- tice then was) held that a film “that illustrates the consequences of a
social evil
necessarily must show that social evil’. No film “that extols the social evil or encourages it is
permissible, but a fun, that carries the message that the social evil is evil cannot be made
impermissible on the ground that it depicts the social evil”. Dealing with the theme of the film,
the
Court held thus: (Para 24)

First, the scene where she is humiliated, stripped naked, paraded, made to draw water from
the well,
within the circle of a hundred men. The exposure of her breasts and genitalia to those men is
intended by those who strip her to demean her. The effect of so doing upon her could hardly
have
been better conveyed than by explicitly showing the scene. The object of doing so was not to
titillate the cinema goer's lust but to arouse in him sympathy for the victim and disgust for the
perpetrators.
“Bandit Queen" tells a powerful human story and to that story the scene of Phoolan Devi's
enforced
naked parade is central. It helps to explain why Phootan Devi became what she did: her rage
and
vendetta against the society that had heaped indignities upon

her.”
Before concluding, we would advert to two decisions of a Division Bench of this Court
consisting
of Mr. Justice A.P Shah and Mr. Justice S.C Dharmadhikari, both delivered on 3rd March
2004. In
the first decision (Anand Patwardhan v. Director General of Doordarshan ), this Court
quashed 8
and set aside the decision taken by Prasar Bharati refusing to telecast a documentary film
entitled
AIR 1996 SC 1846 7 W.P 2863 of 2003 (reported in 2004

(5) Bom CR 651) 8
18

“Father, Son and Holy War” on Doordarshan. In the second decision (Ramesh Pimple v. The
Central Board of Film Certification ), the Division Bench set aside the decision of the Film 9
Certification Appellate Tribunal declining to grant certification to the documentary film entitled
“Aakrosh” on the communal riots that took place in Gujarat in the year 2002. The Division
Bench
in arriving at this decision, followed several judgments of the Supreme Court to which a
reference
has been made by us.
Where the decision of the CBFC entrenches upon the fundamental right to the freedom of
speech
and expression, it is not merely the function but the duty and responsibility of the Court to
intervene. Free speech and expression is a value which is fundamental to the functioning of a
democratic society. The orders passed by the CBFC and by the Appellate Tribunal are
unsustainable
and must be quashed and set aside. We order accordingly. We direct the First Respondent to
issue an
appropriate Censor Certificate for the film “Chand Bujh Gaya”. There shall be no order
as to
costs.
Finally, in the case of S. Rangarajan v. P. Jagjivan Ram and Ors. the Hon’ble Supreme
Court 10
proclaimed, “If the film is unobjectionable and cannot constitutionally be restricted under
Article 19
(2), freedom of expression cannot be suppressed on account of threat of demonstration and
processions or threats of violence. That would tantamount to negation of the rule of law and a
surrender (sic) to blackmail and intimidation. It is the duty of the State to protect the freedom
of
expression since it is a liberty guaranteed against the State. The State cannot plead its
inability to
handle the hostile audience problem.” Hence, the state cannot be permitted to abdicate its
constitutional responsibility to protect and promote the creative

arts.
The legal issue before us today is whether censoring films and protesting against the freedom
of the
artists are legally justified under Article 19 (2) of the Constitution of India or not. The ban on
the
ground of public order or obscenity, at times, might be justified. But the prohibition on the
grounds
that the film “hurts the pride of the people of the nation”, or “hurts the religious sentiments of a
community”, or that “it defies Indian sensibility”, or “it is against the Indian ethos or culture”, or
“it
is woman-oriented” are clearly untenable. For such grounds are not covered by Art. 19 (2) of
the
Constitution of India.
W.P 2864 of 2003 (reported in 2004 (5) Bom CR 214) 9

(1989) 2 SCC 574 10
19
2. WHETHER THE APPELLANT ARE LIABLE FOE SELLING AND PROMOTING

Section 294 of the Indian Penal Code lays down the punishment for obscene acts or words in
public.
Section 292 - Sale of Obscene Books,

etc.
Sections 292, 293 and 294 of IPC have been enacted with the ulterior motive to protect and
safeguard the public moral by making the sale, etc., of obscene literature and publications in
general, and to young persons in particular, a cognizable

offence.
“Clause (1) to section 292 states that the publication of a book, pamphlet, paper, writing,
drawing,
painting, representation, figure, etc., will be deemed obscene,

if,-
i. It is lascivious (expressing or causing sexual desire);

or
ii. Appeals to the prurient interest (excessive interest in sexual

matters);
iii. If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who
are
likely to read, see or hear the matter contained in such

materials.
Clause (2) to section 292 holds a person liable to punishment if

he-
a. Sales lets to hire, distributes, publicly exhibits or puts into circulation,

etc., or
b. Imports or exports or conveys any obscene objects for any of the purpose
aforesaid;
c. Takes part in or receives profits from business in the course of which he knows or has
reason to
believe that any such obscene objects were made for any of the aforesaid
purposes
d. Advertises or makes known by any means whatsoever that any person is engaged in, or is
ready
to be engaged in any act which is an offence under this

section
20
e. Offers o attempts to do any act which is an offence under this

section”
Section 293 punishes sales, etc., of obscene objects to young persons below the age of 20
years.
[5] The offence is cognizable, bailable, non-compoundable and triable by any Magistrate. On
the
other hand, section 294 deals with obscene acts and songs. The offence u/s 294 is
cognizable,
bailable non-compoundable and triable by any Magistrate. In order to constitute an offence

u/s 294
following ingredients are to be fulfilled:-
•The accused –
1. did some act;
2. sang, recited or uttered any song or

bailed;
•Such an act was

obscene;
•The act was performed in a public place;

and
•It caused annoyance to

others.
Evolution of Obscene Law
As early as 4th century Roman Catholic Church had taken the first move by banning few
heretical
works. In 1542 Pope Paul III established the Sacred Congregation of the Roman Inquisition
which
as vested with the task of suppression of heretical and immoral books. Immoral works also
were
suppressed in Protestant countries such as England, where, prior to the 18th century,
restrictions
were applied almost exclusively to anti religious or seditious acts or publications, rather than
to
obscene material in the modern

sense.
The invention of the printing press sowed the seed of modern obscenity law. There was the
wide
and easy distribution of sexually explicit material. By the 17th century, such books and prints
had
become widely available throughout Europe; governments and church authorities responded
by
arresting and prosecuting publishers and

distributors.
The first person to be convicted on a charge of obscenity in England was bookseller Edmund
Curll
way back in the 1720s. He had published a new edition of Venus in the Cloister; or, The Nun
in Her
Smock, a mildly pornographic work. His sentence (a fine and one hour in the pillory) was due
to the 21
fact that there was no specific law on the subject matter. Thereafter obscenity was recognized
as an
indictable misdemeanour under common

law.
The constitutional validity of section 292 was challenged in Ranjit Udeshi v State of
Maharashta The facts of the case are that Ranjit D Udeshi one of the four partners, was the
11
owner of Happy Book Stall. All the four partners were prosecuted for selling Lady Chatterley’s
Lover, a book by D. H. Lawrence under section 292. Udeshi contented that section 292 was
infringing his fundamental right of freedom of speech and expression guaranteed under article
19(1)
(a) of the Constitution. It was held that article 19(1)(a) of the Constitution is subject to the
restrictions enlisted under article 19(2). One of the grounds is public morality and decency.
Section
292 dealing with obscene materials falls within this exception thereby addressing the issue of
public
decency and morality. Therefore, section 292 is

constitutional.
Comparative Analysis with other

Countries
Position in United States
The landmark judgment of U.S. Supreme Court on obscenity laws was Miller v. California . It
12
laid down the so-called ‘Miller test’ or ‘contemporary community interest test’. The test is
based on
“the average person, applying contemporary adult community standards,” any matter that
“lacks serious literary, artistic, political, or scientific value” and “taken as a whole, appeals to
prurient interests” comes within the domain of obscenity, and thus not protected by the First
Amendment to the U.S. Constitution. Some of the legislation governing the subject matter are
the
Children Online Protection Act, Communications Decency Act, Children’s Online Privacy
Protection Act etc.
Position in England
The earliest decision of House of Lords on obscenity was in the case of R v Hicklin wherein
the 13
test of literary morality was laid down.The test is whether the matter in question tends to
deprave
11
1965 AIR 881, 1965 SCR (1) 65
413 U.S. 15 (1973) 12 L.R. 2 Q.B. 360
(1868) 13
22
and corrupt those whose minds are open to immoral influences and into whose hands the
publication may fall.The Obscene Publications Act, 1857 which was revised in 1959 and
further
broadened in 1977 to include pornographic films is the major legislation in force on the
subject.
In Bobby Art International v Om Pal Singh Hoon , the issue that came up for consideration
was 14
whether the film Bandit Queen can be banned on the ground of obscenity. The child named
‘Phoolan Devi’ was made to marry a man of her father’s age. She was stripped naked and
paraded
and made to fetch water from the village well under the gaze of the villagers, but no one came
to
rescue. To avenge herself upon her prosecutors, she joined a daicot’s gang, humiliated and
killed
twenty Thakurs of the village. The apex court while allowing the appeal against the judgment
of
Delhi High court banning the film on the ground of indecency for the public exhibition held that
a
film that carries the message that social evil is evil cannot be made impermissible and banned
for
public exhibition for the same. The scene of nudity and rape as ell the use of expletives were
in aid
of the theme and intended not to arouse prurient or lascivious thought but revulsion against
the
perpetrators and pity for the victim.
1. How is obscenity
judged?
The US Supreme Court has laid down Miller test in order to determine obscenity. The Miller
test for
obscenity includes the following criteria: (1) whether ‘the average person, applying
contemporary
community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient
interest’ (2)
whether the work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks
serious
literary, artistic, political, or scientific value.
In Ranjit Udeshi v State of Maharashtra (1962) , the Supreme Court of India had adopted
the 15
Hicklin test. But in 2014 the Apex Court had explicitly rejected the Hicklin test in the
prosecution
of the tennis star Boris Becker. The Hon’ble Court had adopted the modern community
standards
test. The ratio was obscenity is to be determined by contemporaneous social mores. Mere
nudity
does not by itself amount to obscenity. The law should change in accordance with social
value.
(1996) 4 SCC J 14 [1965]

1 S.C.R., 65 15
23
3. Where is obscenity
legal?
Obscenity is an offence in each of the seven continents of the world. However, the quantum of
punishment and strictness of law vary from place to place. For example, in liberal countries
like
Japan have less stringent obscenity law whereas the conservative countries such as Pakistan
and
Iran have extreme punishment for violation of such laws. Even Africa is equally
harsh.
In 2011,(Kavita Phumbhra vs Commissioner Of Customs (Port)) The Calcutta High Court

16
addressed the issue whether sex toys sold in India comes under the charges of “obscenity”.
The
Court held that the charges on obscenity cannot be held as they were not legally sustainable.
Just
because the toy brings out sexual desires, it cannot be labeled as

‘obscene’.
As the Supreme Court of India has finally put an end to the criminalisation of homosexuality
under
Section 377 in India, data from opinion polls indicates that societal acceptance might still be
some
way off. While the majority remains opposed to same-sex relationships, Indians’ views on
homosexuality have become less rigid over

time.
In Ranjit Udeshi v State of Maharashtra (1962) , the Supreme Court of India had adopted
the 17
Hicklin test. But in 2014 the Apex Court had explicitly rejected the Hicklin test in the
prosecution
of the tennis star Boris Becker. The Hon’ble Court had adopted the modern community
standards
test. The ratio was obscenity is to be determined by contemporaneous social mores. Mere
nudity
does not by itself amount to obscenity. The law should change in accordance with social
value.
In Bobby Art International v Om Pal Singh Hoon , the issue that came up for consideration
was 18
whether the film Bandit Queen can be banned on the ground of obscenity. The child named
‘Phoolan Devi’ was made to marry a man of her father’s age. She was stripped naked and
paraded
and made to fetch water from the village well under the gaze of the villagers, but no one came
to
rescue. To avenge herself upon her prosecutors, she joined a daicot’s gang, humiliated and
killed
twenty Thakurs of the village. The apex court while allowing the appeal against the judgment
of
16
GA No. 2284 of 2009 CUSTA No. 10 of 2009
[1965] 1 S.C.R., 65 17 (1996) 4 SCC J 18
24
Delhi High court banning the film on the ground of indecency for the public exhibition held that
a
film that carries the message that social evil is evil cannot be made impermissible and banned
for
public exhibition for the same. The scene of nudity and rape as ell the use of expletives were
in aid
of the theme and intended not to arouse prurient or lascivious thought but revulsion against
the
perpetrators and pity for the victim.
Masterpiece Cakeshop v. Colorado Civil Rights Commission , was a case in the Supreme
Court 19
of the United States that dealt with whether owners of public accommodations can refuse
certain
services based on the First Amendment claims of free speech and free exercise of religion,
and
therefore be granted an exemption from laws ensuring non-discrimination in public
accommodation — in particular, by refusing to provide creative services, such as making a

wedding
cake for the marriage of a gay couple, on the basis of the owner's religious
beliefs.
The case dealt with Masterpiece Cakeshop, a bakery in Lakewood, Colorado, which refused
to
provide a wedding cake to a gay couple based on the owner's religious beliefs. The Colorado
Civil
Rights Commission, evaluating the case under the state's anti-discrimination law, the
Colorado
Anti-Discrimination Act, found that the bakery had discriminated against the couple and
issued
specific orders for the bakery to follow. Following appeals within the state that affirmed the
Commission's decision, the bakery took the case to the U.S. Supreme
Court.
Naz Foundation v. Govt. of NCT of Delhi is a landmark Indian case decided by a two-judge
20
bench of the Delhi High Court, which held that treating consensual homosexual sex between
adults
as a crime is a violation of fundamental rights protected by India'sConstitution. The verdict

resulted
in the decriminalization of homosexual acts involving consenting adults throughout India. This
was
later overturned by the Supreme Court of India in Suresh Kumar Koushal vs. Naz
Foundation , 21
in which a 2 judge bench reinstated Section 377 of the Indian Penal Code. However, even
that was
overturned by a 5 judge bench in Navtej Singh Johar v. Union of India in 2018, decriminalizing
homosexuality once again
584 U.S. ___ (2018) 19
WP(C) No.7455/2001 20
(2014) 1 SCC 1 21
25
3. WHETHER THE ACTION OF RESPONDENT STATE GOVERNMENTS TO BAN
M/S Prakash Jha Productions & Anr vs Union Of India & Ors
22
In the case the writ petition is filed by the petitioners praying for the reliefs specifically set out
in
the prayer portion of the writ petition.
One of the reliefs that is sought for in this writ petition is to strike down the provision of
Section 6
(1) of the U.P. Cinemas (Regulation) Act (hereinafter referred to as "the Act") being allegedly
ultra
vires to the Constitution of India. The other relief that is sought for is to quash and set aside
the
decisions taken by the respondents, namely State of Punjab, State of Andhra Pradesh and
State of
Uttar Pradesh suspending the screening of the film 'Aarakshan' in their respective States for a
specified period.
It was held that the State to maintain law and order situation in the State and, therefore, the
State
shall maintain it effectively and potentially. Once the Board has cleared the film for public
viewing,
screening of the same cannot be prohibited in the manner as sought to be done by the State
in the
present case. As held in K.M Sankarapaa (Supra) it is the responsibility of the State
Government to
maintain law and order.
Considering the entire facts and circumstances of the case, we are of the considered opinion
that the
present writ petition is required to be partly allowed in terms of the observations made
herein.
Union of India Vs. K.M. Shankarappa reported

23
In the said case constitutional validity of Sections 3, 4 and other Sections of the
Cinematograph Act,
1958 were challenged. In paragraph 8 of the said judgment, this Court has stated that once
an expert
body has considered the impact of the film on the public and has cleared the film, it is no
excuse to
say that there may be a law and order situation and that it is for the State Government
concerned to
see that the law and order situation is maintained and that in any democratic society there are
bound
to be divergent views.
FAO (OS ) 505 of 2012 22

(2001) 1 SCC 582. 23
26
In the case of Jagjivan Ram & Ors. reported the pera 35 and 36 says
that;- 24
"36. The democracy is a government by the people via open discussion. The democratic form
of
government itself demands its citizens an active and intelligent participation in the affairs of
the
community. The public discussion with people's participation is a basic feature and a rational
process of democracy which distinguishes it from all other forms of government. The
democracy
can neither work nor prosper unless people go out to share their views. The truth is that public
discussion on issues relating to administration has positive value. What Walter Lippman said
in
another context is relevant

here:
“35 When men act on the principle of intelligence, they go out to find the facts.... When they
ignore
it, they go inside themselves and find out what is there. They elaborate their prejudice instead
of
increasing their knowledge".
In paragraph 35, this Court has also stated that in a democracy it is not necessary that
everyone
should sing the same song. Freedom of expression is the rule and it is generally taken for
granted.
In 2005, the movie Black Friday’s (Mushtaq Moosa Tarani v. Government Of India & Ors )
25
release was blocked as it was based on the 1993 Bombay bomb-blasts by the petitions of the
persons who were under trial for the bomb-blast case which were filed in the Bombay High
Court.
The Supreme Court had upheld the High Court’s order and finally it was released in
2007.
In 2016, (Wattan Sharma vs Union Of India And Ors ) Udta Punjab had to be released with
26
several cuts due to the reason that it portrayed the State of Punjab in a very humiliating and
false
way.
Finally, (Manohar Lal Sharma vs Sanjay Leela Bhansali the movie Padmavati, which is yet
to 27
be released, has been facing several threats of violence and objections by the Rajput
community due
to the reason that it desecrates Rani Padmavati, who is a revered figure among the Rajput
community, and in turn insults the whole Rajput community by showing incorrect history in the
(1989) 2 SCC 574 (Pera 35 and 36) 24 Writ Petition

(L) No. 269 of 2005 25 CWP No.12510 of 2016 26
WRIT PETITION (CRIMINAL) NO. 191 OF 2017 27
27
name of artistic freedom. The Supreme Court had dismissed petitions seeking ban of the film
on the
ground that the petitions were premature and nothing can be done until and unless the CBFC
grants
a certificate to the film. Recently, the Supreme Court granted an interim stay on the Gujarat
and
Rajasthan state notifications and the decisions of the states of Madhya Pradesh and Haryana
prohibiting the public exhibition of the film ‘Padmaavat’ and refused to hear the PIL filed by
Advocate M.L. Sharma seeking the quashing of the certificate issued by the CBFC in respect
of the
film under S.5A of the Indian Cinematograph Act,

1952.
In conclusion, it is clearly evident that as per the law the Central Government has the sole
power of
certifying films. The State Government can merely get the screening of a film to be
suspended if
breach of public peace is anticipated. However, it has no lawful authority to completely ban a
film
from being screened in a particular state. Hence, it would be wrong on the part of the states
which
are seeking to ban the film “Being gay” from being

screened.
28
CONCLUSION / PRAYER
WHEREFORE IN THE LIGHT OF THE ISSUE RAISED, ARGUMENT ADVANCED AND
AUTHORITIES CITED, THE

HON’BLE HIGH COURT OF BOMBAY MAY BE PLEASED TO:
DECLARE THAT;
THE ORDER OF CBFC, DENYING CERTIFICATION TO THE FILM ‘BEING GAY’, IS
ARBITRARY AND VIOLATION OF FUNDAMENTAL RIGHTS OF APPELLANTS,
THE APPELLANT IS NOT LIABLE FOE SELLING AND PROMOTING OBSCENITY
THROUGH THE FILM ‘BEING GAY’ AND ONLINE RELEASE OF THE TRAILER OF
THE FILM,
THE ACTION OF RESPONDENT STATE GOVERNMENTS TO BAN SCREENING OF
THE CONCERNED FILM IN THEIR RESPECTIVE STATE UNCONSTITUTIONAL AND
ULTRA VIRES OF THE CONSTITUTION OF INDIA.
AND/OR
PASS ANY ORDER, DIRECTION, DIRECTION OR RELIEF THAT IT DEEMS FIT IN

THE
INTEREST OF JUSTICE, EQUITY AND GOOD

CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE APPELLANTS SHALL DUTY BOUND

FOREVER
PRAY.
(COUNSEL FOR THE APPELLANT)
29

3rd C.L. Agrawal Memorial Moot Court Competition Case

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3RD C.L.

AGRAWAL MEMORIAL MOOT COURT COMPETITION, 2019

MEMORANDUM ON BEHALF OF APPELLANT TEAM CODE

3rd C.L. AGARWAL

MEMORIAL MOOT COURT

BEFORE THE HON’BLE

HIGH COURT OF MUMBAI

MR. KISHAN JUNEJA & Ors. (APPELLANT)

CENTRAL BOARD OF FILM CIRTIFICATION & Ors. (RESPONDENT)

MEMORANDUM ON BEHALF OF APPELLANT TEAM CODE

SYNOPSIS OF FACTS .........................................................................................9

PLEADING / ARGUMENT ..................................................................................13

GAY’, IS ARBITRARY AND VIOLATIVE OF FUNDAMENTAL RIGHTS OF APPELLANTS?

•WHETHER THE APPELLANT ARE LIABLE FOE SELLING AND PROMOTING

TRAILER OF THE FILM BY THE APPELLANT IS ILLEGAL?

•WHETHER THE ACTION OF RESPONDENT STATE GOVERNMENTS TO BAN

SCREENING OF THE CONCERNED FILM IN THEIR RESPECTIVE STATE

UNCONSTITUTIONAL AND ULTRA VIRES OF THE CONSTITUTION OF INDIA?

MEMORANDUM ON BEHALF OF APPELLANT TEAM CODE

5. AIR ALL INDIA REPORTER

10.CrLJ CRIMINAL LAW JOURNAL 11.CrPC CODE OF CRIMINAL

13.SDF SOIL DEFENCE FORCE

14.DW DEFENCE WITNESS

15.FIR FIRST INFORMATION REPORT

17.HC HIGH COURT

20.IPC INDIAN PENAL CODE, 1860

21. No. NUMBER

24.PS POLICE STATION

25.PW PROSECUTION WITNESS

26.SC SUPREME COURT

MEMORANDUM ON BEHALF OF APPELLANT TEAM CODE

28.SCR SUPREME COURT REPORTER

MEMORANDUM ON BEHALF OF APPELLANT TEAM CODE

1. Constitution of India 1950

2. Indian Penal Code, 1860

3. The Criminal Procedural Code, 1973

4. The cinematographic act, 1952

2. K.D Gaur ,Criminal law cases and materials, 8th edition

4. Prof. Hoffmann, The Indian Penal Code, Andesite

MEMORANDUM ON BEHALF OF APPELLANT TEAM CODE

2. Anand Patwardhan v. Director General of Doordarshan ( W.P 2863 of 2003 (reported in

(5) Bom CR 651))

3. Bobby Art International v. Om Pal Singh Hoon ( AIR 1996 SC

4. Bobby Art International v Om Pal Singh Hoon (1996) 4 SCC

8. Maneka Gandhi v. Union of India ( [1978] 2 SCR 621)

12. Miller v. California ( 413 U.S. 15 (1973))

15. Naz Foundation v. Govt. of NCT of Delhi (WP(C)

16. Naraindas v. State of Madhya Pradesh( [1974] 3 SCR

18. Ranjit Udeshi v State of Maharashtra (1962) ( [1965] 1 S.C.R.,

19. R v Hicklin ( L.R. 2 Q.B. 360 (1868))

21. S. Rangarajan v. P. Jagjivan Ram and Ors. ( (1989) 2 SCC

MEMORANDUM ON BEHALF OF APPELLANT TEAM CODE

22. Suresh Kumar Koushal vs. Naz Foundation ( (2014) 1 SCC

23. Ranjit Udeshi v State of Maharashtra (1962) ( [1965] 1 S.C.R.,

24. Union of India Vs. K.M. Shankarappa reported ( (2001) 1 SCC

25. Wattan Sharma vs Union Of India And Ors (CWP No.12510 of

THE HON’BLE HIGH COURT OF JUDICATURE AT BOMBAY EXERCISES

CONSTITUTION OF INDIA, 1950.

THE APPELLANT HUMBLY SUBMITS TO JURISDICTION OF THE HON’BLE COURT.

HOWEVWER, RESERVES RIGHT TO CHALLENGE THE SAME. THE PROVISION

WHICH THE APPELLANT HAS APPROACHED THE HON’BLE COURT IS READ

MEMORANDUM ON BEHALF OF APPELLANT TEAM CODE

homosexuality is against of their moral