Delhi HC dismisses plea to ban Sonakshi Sinha- starrer on sex clinics

HRLN New Delhi: The Delhi High Court dismissed a plea that sought to prevent the release of the Sonakshi Sinha-starrer Khandaani Shafakhana observing that the movie was a "golden opportunity" to help erase stigma attached to sexual diseases. "The film, in two hours duration thereof, shows the societal transformation brought about on the subject," the verdict read. While dismissing the plea, Justice Rajiv Sahai Endlaw says that the film presents a "golden opportunity" to practitioners in the field, who till now "found publishing their advertisements in local newspapers, approach the larger cross section of the society on the subject of need to impart sex education and for lifting the stigma and taboo attached to sexual diseases/disorder/dysfunction and treatment thereof and to commence a countrywide dialogue from the platform offered by the film." Justice Endlaw further observes that the viewer of the film "is more likely to walk away, being more open than earlier to the acceptability of the profession as a sexologist." The verdict pronounced by Justice Rajiv Sahai Endlaw was delivered on 29, July 2019. However, since the film was to be released on 2 August, 2019, and release of this judgment could have resulted in the disclosure of the film's storyline, the judgment was not made public till 3 August, 2019. Film tries to address stigma The high court's verdict came on a plea filed by Dr. Vijay Abbott who suggested that the film was based on the "real-life and contributions" of his father. Abbott, an Ayurvedic Sexologist running the Hakim Hari Kishan Lal Shafakhana Clinic, said the film defamed and tarnished his reputation. Abbott sought an injunction and damages amounting to Rs. 2 crore on the grounds that the storyline of the film was similar to “proprietary material” belonging to him. Dismissing the plea, Justice Endlaw said that “There is no gain saying that till date sexual disorders/dysfunctions are viewed in the society as an abnormality and not as a curable disease.. This often results in the disorder/dysfunction, though being curable, going untreated, obviously at a huge emotional cost. Not only so, but the same also results in the sufferers seeking treatment from quacks and unqualified people, offering cure shrouded in secrecy. The same is obviously to the prejudice of general practitioners thereof, who are because of the stigma attached to their profession, also deprived of the stature and respect in the society as accorded to other medical practitioners." Justice Endlaw further said: "The film is a work of fiction and deals with the subject of sex education and the stigma attached to sexual dysfunctions and disorders and treatment thereof. Of course, to attract the viewers to the film and sell it, the said socially relevant subject is embedded in a drama/storyline, and without which the film would be a documentary, with very limited audience and reach." "The drama / storyline created around the subject aforesaid spills to a large extent to the Court room. The Court scenes are again a dramatized version rather than what unfolds in the mundane course in the Courts every day. Again, to keep the interest of the viewers alive, a comical twist is given to the arguments in the Court and the conduct of the Judge. In fact, a thought did cross my mind while viewing the film, that if the film indeed ridicules anyone or if anyone can take offence to their depiction in the film, it is the lawyers and Judges," he added. Justice Endlaw relied on various top court and high court judgments while making his case. in the 22-page verdict, the high court judge recapped various principles gleaned from cases that sought to curb the release of films. The principles culled by Justice Endlaw are as follows: (i) The effect of the allegedly offending words/visuals need to be judged from the standards of a reasonable/strong minded, firm and courageous man and not those of weak and vacillating minds nor of those who scent danger in every hostile point of view; (ii) Any restrictions imposed on expression of artistic thought, affects the constitutional right of the film makers; (iii) Our society is a very mature society and there is no need for anyone to be sensitive; (iv) The standards that we set for our censorship must make a substantial allowance in favour of freedom, thus leaving a vast area for creative art to interpret life and society, with some of its follies along with what is good; (v) We must not look upon certain aspects, as banned in toto and forever from human thought and must give scope for talent to put them before the society; (vi) The requirements of art and literature include within themselves, a comprehensive view of social life, not only in its ideal form; (vii) A film that illustrates consequences of social evil, necessarily must show that social evil; (viii) A film is to be judged in its entirety, from the point of view of its overall impact; (ix) A feature film is a work of fiction and is exhibited for commercial purposes; (x) The Constitution protects the rights of the artist to portray social reality in all its forms; some of that portrayal may take the form of questioning values and mores that are prevalent in the society; (xi) films are a legitimate and important medium for the treatment of issues of general concern and it is open to a producer to project his own message, even if it is not approved by others; (xii) Freedom of expression is of inestimable value in a democratic society based on the rule of law; (xiii) The right to communicate and receive ideas, facts, knowledge, information, beliefs, theories, creative and emotive impulses by speech or by written word, drama, theatre, dance, music, film etc. is an essential component of the protected right of freedom of speech and expression; (xiv) Humour cannot be divorced from reality; we can laugh only in the context of what is known to us and not in abstract; if it were to be held that there can be no contextual humour as the same is bound to be considered to be offensive by someone or the other in the know of the context, there indeed would be no humour and it will indeed be a sad day; (xv) Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing that freedom are pressing and the community interest is in danger; anticipated danger should not be remote, conjectural or far-fetched – it should have proximate and direct nexus with the expression and the expression to which objection is taken should be equivalent of a spark in a powder keg; (xvi) Freedom of speech and expression is sacrosanct and the said right should not be interfered with; when the Central Board of Film Certification (CBFC) has granted the certificate and only something with regard to the petitioner which was shown in the media is being reflected in the film, the Court should restrain itself and not grant injunction; (xvii) A film is a creation of art; an artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication, to crucify the rights of expressive mind; (xviii) Like human beings, literary work produced by the author or the work of entertainment produced by a producer needs a title to be identified; (xix) Title alone of a literary work cannot be protected by Copyright Law; (xx) The protection of literary titles lies in the field of trade mark and unfair competition; (xxi) Titles may relate to two types of works i.e. titles of single literary works and titles of series of literary works; (xxii) Titles of series of books, periodicals or newspapers do function as a trade mark, to indicate that each edition comes from the same source as the others and constitute a trade mark; (xxiii) Titles of single literary work do not enjoy trademark protection and in order to become entitled to this protection, it is necessary to prove that such a title has acquired Secondary meaning i.e. title is capable of associating itself with particular work or source; (xxiv) Only if it is so, would the likelihood of confusion of source, affiliation, sponsorship or connection in the minds of potential patrons arise; (xxv) Else, each literary work is a specific, separate and unique commercial item and not as one product among many competing products; (xxvi) The evidence necessary to establish secondary meaning of literary work is evidence of an audience educated to understand that the title means the work of a particular artist; such evidence includes the length and continuity of use, the extent of advertising and promotion and the amount of money spent and the closeness of the geographical and product markets of the plaintiff and defendants DR. VIJAY ABBOT v. SUPER CASSETTES INDUSTRIES PRIVATE LIMITED & ORS.