Supreme Court dismisses permanent injunction petition against Gangubai but petitioner free to raise issue before High Court

The Supreme Court on 24 February 2022 dismissed the petition seeking a permanent injunction against the movie ‘Gangubai Kathiawadi’.  The petition was filed by a person claiming to be the adopted son of Gangubai and on the ground that the movie was defamatory in nature. The issue before the Court was to see whether a permanent injunction should be granted against the release of the movie titled ‘Gangubai Kathiawadi’.

Reliefs Claimed

In Shri Babuji Rawji Shah v. S. Hussain Zaidi & Ors , the petitioner filed a Special Leave Petition against a judgment of the Bombay High Court wherein the following reliefs were denied to him:

1. Permanent injunction restraining the printing, publishing, advertising, alienating, assigning, selling, or conferring upon a third party such rights or conducting press meets for promotion of the novel ‘Mafia Queens of Mumbai’,
2. Permanent injunction restraining the production, sale, assignment of such rights to a third party or release of any press statement of the promo and/or movie titled ‘Gangubai Kathiawadi’.

The petitioner contended that he is the adopted son of Gangubai and attested a photocopy of ration card to prove the same. However, the Court observed that the photocopy of the ration card was not supported by any other material, therefore, he has not established a prima facie case of him being the adopted son of Gangubai.

The petitioner sought an injunction against the movie and the book on the ground of it being defamatory. However, the Court rejected the petitioner’s contention and observed that the film certificate granted by the CBFC proves that the film was not defamatory.

The Court stated that the following requirements should be met, to hold that the tort of defamation has been committed:

1. i) the applicant was a family member or relative of the deceased person,
2. ii) What was stated about the deceased person was untrue, and

iii) Such a statement would have a negative impact on the reputation and character of the deceased person.

Further, the petitioner’s contention that the story of Gangubai as depicted is untrue was also rejected on the ground that it is for the Court to examine whether a story is untrue or not by examining the evidence.

Section 5-B of the Cinematograph Act, 1952 lays down the principles for certifying films. The section provides that a film shall not be certified for public exhibition, if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against, inter alia, decency, or morality, or involves defamation. Section 6 of the said Act enables the Central Government to call for the records of any proceedings in relation to any film which is pending certification or has been certified. Rule 32 of the Cinematograph(Certification) Rules, 1983 provides that where any complaint is received by the CBFC in respect of a film which has been certified, such complaint shall be forwarded to the Central Government and the Central Government may, if it considers it necessary, direct the Chairman to re-examine the film in such manner and with such assistance as may be specified in the direction. The petitioner has apparently made no complaint to the CBFC.

It is true that an injunction action can be initiated even after a certificate is issued under the Cinematograph Act. The Court may examine the film and judge whether its public display, breaches the norms of decency or contravenes the law. A film which is defamatory or indecent or breaches copyright cannot be allowed to be exhibited only because a certificate has been issued.

At the same time, it has to be kept in mind that the guidelines for certification of films, as contained in Section 5(a) read with Section 5(B) of the Cinematograph Act, 1952 though not mandatory, have been carefully formulated. They require the CBFC to be responsive to the values and standards of society and also take note of social changes. The CBFC is required to ensure that sensibilities are not offended by obscenity, vulgarity, defamation or denigration of any group of persons.

Defamation has been defined in Section 499 of the Indian Penal Code. As per the definition of ‘defamation’ in Section 499 of the Indian Penal Code, whoever, by words either spoken or read, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said to defame that person. As per Explanation-1 it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be harmful to the feelings of his family or other near relatives. Explanation 4 clarifies that no imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person. There are, also exceptions to defamation. It is not defamation to impute anything which is true, concerning any persons or if the imputation has been made or published for the public good. Whether or not it is for the public good is a question of fact, that has to be determined by the Court.

For maintaining an action in tort of defamation, the applicant for interim relief would have to satisfy the Court, that

(i) the applicant was a member of the family or a near relative of the person defamed;

(ii) what was stated about the deceased family member/relatives was untrue; and

(iii) what was stated would lower the character and reputation of the deceased.

Mere hurting of sensibility is not defamation, if the person said to be defamed is not lowered in character or credit in the eyes of others.

A book or a film that illustrates the consequences of a social evil must necessarily show that social evil, as observed by a three Judge Bench of this court speaking through Bharucha, J. in Bobby Art International & Ors. vs. Om Pal Singh Hoon & Ors. reported in (1996) 4 SCC 1. The guidelines must be interpreted in that light. A film that carries a message and depicts social circumstances of a group of underprivileged women is not impermissible. The fact that the film has been certified by CBFC, which comprises of a body of experts prima facie shows compliance with the requirements of the guideline

The Supreme Court relied on Rule 32 of the Cinematograph (Certification) Rules, 1983 while observing that the petitioner omitted to make a complaint to CBFC first. The Court also sought the assistance of Sections 5(a) and 5B of the Cinematograph Act, 1952 to discuss the role of CBFC in the certification of films for public exhibition.  It further observed that certification of the film by CBFC shows compliance to the guidelines provided in the 1952 Act. Lastly, the Court also pondered over in whose favour the balance of convenience lies. It observed that the balance of convenience is against an interim order a day before the release of the movie.

The book was admittedly published in the year 2011. It is stated that the decision to make the film “Gangubai Kathiawadi” was taken in the year 2018 and the film was duly publicised. The film is due to be released tomorrow, i.e., 25.02.2022. The question is whether an ad interim order should be passed at this stage. As observed above, there are no materials disclosed or even pleadings to show, even prima facie, that the petitioner was a family member or a near relative of Gangubai. particulars. In any case, whether the story is true or incorrect would have to be decided by the Court upon examination of the evidence. The film certificate issued by the CBFC prima facie shows that the film is not defamatory. Prima facie, it appears that the movie is an artistic expression within the parameters of law.

In the circumstances, interim relief was rightly refused to the petitioner. The appeal of the petitioner is pending in the High Court. It is open to the petitioner to agitate all issues in the pending appeal. Any observations made in the impugned order at the interlocutory stage will not affect the decision in the appeal.

Image: Official Trailer on Youtube