In a 66-page
judgment delivered on October 15, 2012, a Learned Single Judge of the Delhi
High Court has restrained the makers of the movie “Chakravyuh” from “releasing,
transmitting, distributing, exhibiting, performing or communicating to the
public by any means or technology, aural or audio visual performance of the impugned
song “Mehngai” using the name of the
plaintiff therein till final disposal of the suit.”
The relevant extracts of the
lyrics of the song in which the name “Bata” is used is as follows:
“Birla Ho Ya Tata Ambani Ho Ya Bata,
Apne Apne Chakar Mein Desh Ko Hai Kata
Birla Ho Ya Tata Ambani Ho Ya Bata
Apne Apne Chakar Mein Desh Ko Hai Kata
Are humre hi khoon se inka engine chale
dhakadhak, Aam admi ki jeb ho gai hai safa
chat, aam aadmi ki jeb ho gai safachat.”
The lyrics refer to corporate
corruption in the country and name prominent Indian business houses, including
popular footwear maker “Bata”.
Among other things, Bata filed a “quia
timet”/pre-emptive action suit for infringement of its trademark/name,
passing off and defamation. Summing up the issues in the case, the Court noted
as follows:
“15. In the facts of the present case, the core issue involved is
whether the defendants have transgressed the right to freedom of expression and
speech through the song “Mehngai”. Another important question to be answered by
this Court in the present case is whether pre-emptory injunction can be granted
by the Court to restrain the defendant from transmitting and exhibiting the
said song “Mehngai” or the only remedy
is to claim damages after proving such defamation in trial.”
Citing decisions of the Supreme Court,
the Court noted that motion pictures had a deeper impact on its audience that
books and that the freedom of expression under Article 19(2) was not absolute. Applying
the principles enumerated in SC’s decisions and those of the Delhi High Court,
the Court observed thus in Para 25 on the facts of the case:
“25. Applying the above enunciated principles, in my considered view in
the present case in the song in question, the defendants have used expressions that are offensive
towards the plaintiff. The tenor of such
expressions suggests that the engines
of the industries of the plaintiff are run by the blood of the common
public.
Such expressions undoubtedly
have the propensity to cause lasting damage to the well established reputation
of the plaintiff and in my view the use of the said expression would certainly harm
and jeopardize the credibility and reputation of the plaintiff in the
estimation of the common public. This Court also cannot find any justification
for the use of such derogatory expressions
in the song and such expressions prima facie cannot stand the test of
either fair comment or based on truth or in the public or societal interest.”
The context of the Defendants’
contention that the movie had been cleared by the Censor Board and that no
objections were raised by the Plaintiff on the Censor Board’s decision to clear
the movie along with the allegedly defamatory song, the Court observed thus:
“In my considered view, none of
the above contentions raised by the counsel for the
defendants could justify the
act of the defendants in
using the name of the plaintiff with such a disparagement to the extent of attributing that the plaintiff has looted
the country and that they are
running their industry by the blood of
the people.
This is no doubt a serious attack on the reputation and goodwill of
the plaintiff and with the use of such
defamatory expressions the defendants cannot take shelter by using the same
with a disclaimer. Even otherwise it
is inconceivable that the use of a
disclaimer in any way can help so far transmitting of the said song on You-Tube, through CDs or other
media sites is concerned as the disclaimer will confine to the viewers of the
film and not to all those who will merely listen the song.”
On whether Bata’s suit was barred
by the Cinematographic Act which governs grant of viewership certification to
cinematograph films, the Court’s views are definitely worth reading:
“27. This court also does not find any merit in the contention raised
by the counsel for the
defendant that the remedy of the
plaintiff to file a civil suit is barred
due to the remedy available to the plaintiff under Section 6 of the Cinematographic Act 1952. There is no provision in the Cinematographic Act 1952 which excludes the jurisdiction of the civil court
to try and entertain a civil suit.
It is a settled legal position that a provision of law ousting the
jurisdiction of the civil court must be strictly construed and exclusion of the
jurisdiction cannot be easily inferred unless such exclusion is either
explicitly expressed or clearly implied.
This court also does not
find any specific provision in the Cinematographic Act which can grant an urgent and immediate relief to the grievance of an individual in a case
like the present where
the grievance of the
individual pertains to intending loss of its reputation and goodwill.
The entire scope of Cinematographic Act is to regulate the exhibition
of films for evolving and entertaining the society through the film makers, exhibitors and the
connected team with such activities and define the role of the Central Board of
Film Certification and of the Central
Government.
The Act does not specifically provide for any remedy or grant any such relief
to redress the grievances of the individuals or private citizens and
institutions etc. against screening of
any film or objectionable scene in the films Ordinarily, the courts do not
interfere with the decision taken by
expert bodies, but that would not
imply that the citizen whose fundamental
rights are violated is left remediless
and that the recourse to approach the
court to challenge the decision of the
expert body is not available”
Para 30 of the judgment for me is
a must read in order to understand the balance to be struck between artistic license
and responsibility:
"30. At omega, this court would
like to observe that cinema is not only an entertainment industry but also a potent
weapon for social change. From a six to a sixty year old, everyone derives and
takes home something from a movie and it has the power to evoke emotions and
shape the outlook of the common man towards various issues like none other. The
film makers have since yore mirrored social ills plaguing the society which
movement continues till date with igniting the minds and being responsible for various
social movements leading to monumental changes in the social setup.
However with this
responsibility to bring to the public domain the realities of our diverse nation,
there comes a duty to act cautiously not to make inroads in the lives and dignity
of people and institutions alike in the garb of being the messiahs of social
change. Thus the film makers have no unbridled right to tarnish the image and reputation of any
individual or institution, that too in the absence of any foundation for
the same. One cannot be oblivious of the fact that the main stay of the film industry is not only
entertainment but also commercial gains
and in this pursuit to earn huge profits the cinema makers have no
right to trample upon,disrepute or disparage the reputation of others.”
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