W.P.(C)/674/2015 of SAI CINE PRODUCTIONS Vs CENTRAL BOARD OF FILM CERTIFICATION AND ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI%Judgment delivered on: 27.08.2019

+W.P.(C) 674/2015 & CM No. 1181/2015SAI CINE PRODUCTIONS

..... Petitioner

Versus

CENTRAL BOARD OF FILM CERTIFICATIONAND ORS.

..... Respondents

Advocates who appeared in this case:For the Petitioner: Mr Colin Gonsalves, Sr. Advocatewith Ms Anupradha Singh, Advocate.For the Respondents: Ms Maninder Acharya, ASG with MrAnurag Ahluwalia, CGSC, Mr AbhigyanSiddhant, Mr Kartikeya Rastogi, MrKaartikeya Rastogi, Mr Viplav Acharya,MrHarshulChowdhryadn,MsIkshitaSingh, Advocates for UOI/CBFC.

CORAMHON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1.The petitioner has filed the present petition, inter alia,impugning an order dated 21.08.2014 passed by the Chairman, CentralBoard of Film Certification (hereafter ‘CBFC’) withdrawing theCertificate dated 29.05.2014 issued to the Cinematographic Filmcaptioned ‘Kaum De Heere’.The petitioner also impugns an orderdated 07.10.2014 passed by the Film Certification Appellate Tribunal(hereafter ‘FCAT’), rejecting the petitioner’s appeal against the order

dated 21.08.2014 preferred under Section 5C of the CinematographAct, 1952 (hereafter ‘the Act’).

2.The petitioner claims that the impugned order dated 21.08.2014is without jurisdiction as CBFC does not have the power to review itsown decision. CBFC had granted an “A” Certificate after viewing thefeature film in question and the same could not be reviewed. It is alsothe petitioner’s case that the said order dated 21.08.2014 was passed atthe instance of the Central Government, which has no power to issueany such directions.

3.Briefly stated, the relevant facts to address the controversy areas under:

3.1The petitioner is partnership firm engaged in the business offilm production. The petitioner had purchased cinematographic filmfrom the original owners/producers. The controversy in the presentcase relates to the Punjabi language feature film – ‘Kaum De Heere’.It is stated that the said feature film is based on the events thatfollowed the storming of the golden temple and the assassination ofthe Indian Prime Minister in 1984. Apparently, the cinematographicfilm features actors playing the characters of Satwant Singh and KeharSingh, who were involved in the assassination of the then PrimeMinister of India. According to the petitioner, the feature film hasdepicted historical events and the sentiments of the Sikh Communityat the material time. The feature film concludes with the hanging ofthe persons accused of assassinating the then Indian Prime Minister.

3.2On 13.01.2014, the petitioner made an application to CBFC forcertification of the feature film in question. The said film wasexamined by the Examination Committee on 19.01.2014 and theExamination Committee recommended that the certification berefused. The Examination Committee was of the view that the featurefilm violated Guidelines 2(xii) and 2(xv) of the Guidelines dated06.12.1991, notified by the Ministry of Information and Broadcastingfor certification of films. The said Clauses of the Guidelines are setout below:-

“2(xii) visuals or words contemptuous of racial, religiousor other groups are not presented;

2(xv)the security of the State is not jeopardized orendangered;”

3.3The Examination Committee was of the view that the featurefilm sought to justify the assassination of the then Prime Minister ofIndia.

3.4Aggrieved by the said decision, the petitioner sought reviewby the Revising Committee under Rule 24 of the Cinematograph(Certification) Rules, 1983.Accordingly, the Revising Committeewasconstitutedwhichviewedthefeaturefilminquestion.Admittedly, five members out of the seven members constituting thesaid Committee were in favour of granting “U/A” Certification withcertain cuts to the film, while the remaining two members were of theview that the certification should be declined.

3.5Thereafter, Second Revising Committee was constituted. TheRevising Committee so constituted comprised of seven members. Thesaid Committee also viewed the film. Four out of the seven membersof the RevisingCommitteewere of the view that an “A”Certification with certain cuts be granted to the film in question. Theother three members were of the view that the certification ought to bedeclined.

3.6In terms of Rule 24(12) of the Cinematograph (Certification)Rules, 1983, the decision of the Revising Committee is required to bethat of majority of the members attending the examination of thefilm. In view of the decision of the majority members, CBFC issuedan “A” Certificate to the film in question after certain cuts, whichwere considered as necessary.

3.7On 14.08.2014, the Ministry of Home Affairs sent letter to theSecretary, Ministry of Information and Broadcasting informing himthat an input had been received with regard to the film in question,which was then scheduled to be released on 22.08.2014. It wasinformed that certain organizations in Punjab had opposed thescreening of the film and had vowed to organize protests anddemonstrations outside cinema halls in case of its release. The saidletter further stated that it was apprehended that the “the release of themovie might create disharmony among the Sikhs and Hindu leading tolaw & order problem”. And, in view of the above, it was requestedthat the release of the said cinematograph film be withheld and

special screening of the film be held for officers of the Ministry ofHome Affairs.

3.8It appears that, thereafter, the Ministry of Information andBroadcasting arranged for special screening of the feature film on17.08.2014 for officers of the Ministry of Home Affairs, Governmentof India.

3.9Thereafter, on 21.08.2014, the Ministry of Home Affairs sent aletter stating that the contents of the film appeared to be contrary tocertain observations made by the Supreme Court in its decision in thematter of Kehar Singh and Ors. v. State (Delhi Admn.): (1998) 3SCC 609. It was also stated that the said feature film is likely to causea serious law and order situation by arousing sentiments of the peopleand further cause disaffection amongst the armed forces. The Ministryof Information and Broadcasting was requested to take immediateaction under the Act or any other provisions as may be deemednecessary.

3.10Immediately upon receipt of the said letter – that is, on21.08.2014 – the Ministry of Information and Broadcasting addresseda letter to the Chairperson, CBFC forwarding the aforementionedletters received from the Ministry of Home Affairs, with request totreat them as objections/complaints calling for withholding of therelease of the feature film in question. The Chairperson was requestedto re-examine the film under Rule 32 of the Cinematograph(Certification) Rules, 1983.

3.11The respondents have furnished letter dated 21.08.2014 sentby the Chairperson of CBFC addressed to the Secretary, Ministry ofInformation and Broadcasting that she had re-examined the film on22.08.2014 and it was her opinion that the film encourages the idea oftaking the law into one’s own hands and puts the interest of acommunity above that of national harmony. According to her, thesame was against the interest of public order.

3.12It is stated that on the same date, the Additional Secretary,Government of India, Ministry of Information and Broadcasting sent aletter responding to the letter dated 21.08.2014 received from theChairperson, CBFC requesting her to take appropriate action in thematter.

3.13It is stated that immediately on receipt of the letter dated21.08.2014 from the Additional Secretary, Ministry of Informationand Broadcasting, the Chairperson, CBFC issued the impugnedcommunication dated 21.08.2014, communicating the decision towithdraw the certificate issued to the film in question.

3.14Aggrieved by the same, the petitioner preferred an appeal beforeFCAT, which was dismissed by the impugned order dated 07.10.2014.Submissions

4.Mr Colin Gonsalves, learned senior counsel appearing for thepetitioner, has assailed the impugned orders on, essentially, two fronts.First, he submitted that the Chairperson of CBFC had no power to

review and cancel the certificate that was issued by CBFC. Hecontended that the said certification was issued by CBFC after theRevising Committee had viewed the feature film on two occasions.He submitted that there was no provision in the Act which empoweredthe Chairperson to override the decision of the Revising Committee.Next, he submitted that the feature film did not violate any guidelinesand withdrawal of certification was violative of Article 19(1)(a) of theConstitution of India. He also relied on the decision of the SupremeCourt in M/s Prakash Jha Productions and Anr. v. Union of Indiaand Ors.: (2011) 8 SCC 372 in support of his contention that once afeature film has been certified by CBFC for public exhibition, itcannot be subjected to further censorship by the Government.

5.Ms Maninder Acharya, learned ASG appearing on behalf ofrespondent no.1, fairly drew the attention of this Court to decisionrendered by the Supreme Court in Union of India v. K.M.Shankarappa: (2001) 1 SCC 582 and the decision of the High Courtof Karnataka in K.M. Shankarappa v. Union of India: ILR 1990KAR 4082. She submitted that notwithstanding the above decisions,the Central Government has the power under Section 6(2) of the Actto direct that film, which has been granted certification, be deemedto be an uncertified film in any part or the whole of India. She handedover compilation of letters dated 21.08.2014 (as referred to above)and relied upon Rule 32 of the Cinematograph (Certification) Rules,1983 in support of her contention. She contended that the decision to

withdraw certification was in accordance with Rule 32 of the saidRules.

Reasons and Discussion

6.At the outset, this Court finds it necessary to state that the lettersdated 21.08.2014, as produced by the learned counsel for respondentno.1, do not inspire any confidence. It is difficult to understand howon single date, that is, on 21.08.2014, the Ministry of Home Affairshad communicated its view that the feature film was likely to cause aserious law and order situation to the Ministry of Information andBroadcasting and on the same date, the Additional Secretary, Ministryof Information and Broadcasting had sent communication directingthe Chairperson, CBFC to re-examine the film. The Chairperson,CBFC had responded immediately and sent letter dated 21.08.2014,conforming that she had re-examined the film. Curiously, she claimedto have re-examined the film on 22.08.2014 at 12:00 noon, which isone day after the date of the letter. The said letter was received by theAdditional Secretary, Films on 21.08.2014 and he had, thereafter,issued another letter on the same date, that is, on 21.08.2014 directingthe Chairperson, CBFC to take necessary action.She had actedinstantaneously and issued the impugned communication withdrawingthe certification.

7.Notwithstanding this Court’s skepticism as to the aforesaidcommunications, for the purposes of this decision, this Court acceptsthe said communications to correctly reflect the events that occurred

on 21.08.2014. The principal question to be addressed is whether theChairperson, CBFC has the power to withdraw certification granted toa feature film.

8.The respondents have relied upon Section 6 of the Act, which isreproduced below:

“6. Revisional powers of the Central Government. - (1)Notwithstanding anything contained in this Part, theCentral Government may, of its own motion, at any stage,call for the record of any proceeding in relation to anyfilm which is pending before, or has been decided by, theBoard, or, as the case may be, decided by the Tribunal butnot including any proceeding in respect of any matterwhich is pending before the Tribunal and after suchinquiry, into the matter as it considers necessary, makesuch order in relation thereto as it thinks fit, and theBoard shall dispose of the matter in conformity with suchorder:

Provided further that nothing in this sub-sectionshall require the Central Government to disclose any factwhich it considers to be against public interest to disclose.

(2) Without prejudice to the powers conferred on itunder sub-section (1), the Central Government may, bynotification in the Official Gazette, direct that -

(a) film which has been granted certificateshall be deemed to be an uncertified film inthe whole or any part of India; orshall be deemed to be an uncertified film inthe whole or any part of India; or

(b) film which has been granted “U”certificate or “UA” certificate or “S”certificateshallbe deemedtobeanuncertified film in the whole or any part ofIndia; or film which has been granted a“U” certificate [or “UA” certificate or acertificate or “UA” certificate or “S”certificateshallbe deemedtobeanuncertified film in the whole or any part ofIndia; or film which has been granted a“U” certificate [or “UA” certificate or

“S” certificate] shall be deemed to be afilm in respect of which an “A” certificatehas been granted; or

(c) the exhibition of any film be suspended forsuch period as may be specified in thedirection:such period as may be specified in thedirection:

Provided that no direction issued under clause [c]shall remain in force for more than two months from thedate of the notification.

(3) No action shall be taken under clause (a) orclause (b) of sub-section (2) except after giving anopportunity to the person concerned for representing hisviews in the matter.

(4) During the period in which film remainssuspended under clause (c) of sub-section (2), the filmshall be deemed to be an uncertified film. Informationand documents to be given to distributors and exhibitorswith respect to certified films.”

9.A plain reading of Section 6(1) of the Act indicates that theCentral Government has the power to call for the records of anyproceedings in relation to any film, which is pending before or hasbeen decided by CBFC or FCAT.The Central Government isrequired to make such inquiry into the matter as it considers necessaryand thereafter, make an order in relation thereto as it deems fit. CBFCis required to dispose of the matter in conformity with any such order.The proviso to Section 6(1) of the Act mandates that no such orderwould be made prejudicially affecting the person to whom certificatehas been granted, except after giving him an opportunity forrepresenting his views in the matter.

10.In the present case, Central Government has not passed anyorder under Section 6(1) of the Act requiring the Board (CBFC) to actin conformity with such orders. The chain of communication calledupon the Chairperson, CBFC to take appropriate action so that theguiding principles of the Act are not violated by certifying the film forrelease. As noticed above, the Revising Committee had examined thefilm to ascertain whether the film conforms to the concernedGuidelines. Thus, the letter dated 21.08.2014 sent to the Chairperson,CBFC for ensuring the same, was clearly not in terms of Section 6(1)of the Act.More importantly, the petitioner was not granted anyopportunity prior to issuing any such order, as is stipulated under theproviso to Section 6(1) of the Act. The said proviso expressly providesthat the Central Government shall not pass any order prejudiciallyaffecting any person applying for certificate or to whom certificatehas been granted as the case may be, except by giving him anopportunity for representing his views in the matter. The reference tosuch order is clearly an order passed by the Central Government underthe main provision of Section 6(1) of the Act.

11.At this stage, it is also relevant to mention that in K.M.Shankarappa v. Union of India (supra), the Karnataka High Courthad held that Section 6(1) of the Act, insofar as it enables the CentralGovernment to exercise the power of revision against the decision ofCBFC and FCAT, is violative of the basic structure of theConstitution. The Central Government had appealed against the saiddecision before the Supreme Court. The said decision was upheld by

the Supreme Court in Union of India v. K.M. Shankarappa (supra).It is relevant to note that the Court had observed that once an expertbody has considered the impact of film on the public and has clearedthe film, it is no excuse to say that there may be law and ordersituation. It is for the State Government concerned to see that law andorder is maintained.

12.In view of the above, the reliance placed by the respondentsupon Section 6(1) of the Act, is wholly misplaced. First of all, thesaid provision to the extent that it enables the Central Government toexercise revisional powers in respect of the decisions rendered byCBFC, has been held to be unconstitutional. Second, even if Section6(1) of the Act was operative, the respondents had not followed theprocedure as contemplated therein.The petitioner was not grantedany opportunity to represent its views before the direction was issued.Further, Section 6(1) of the Act also does not contemplate the issuanceof any direction to the Chairperson of CBFC.

13.Ms Acharya had referred to Rule 32 of the Cinematograph(Certification) Rules, 1983 and had contended that the procedure asspecified under the said Rules was followed. Rule 32 of the said Rulesis set out below:-

“32. Re-examination of certified films –(1) Where inrespect of film which has been certified for publicexhibition, any complaint is received by the Board, thesame shall be forwarded to the Central Government.

(2)The Central Government may, if it considers itnecessary so to do, direct the Chairman to re-examine

any film (in respect of which complaint has beenreceived by it directly or through the Board) in suchmanner and with such assistance as may be specified inthe direction.

(3) The Chairman may, for the purpose of re-examination aforesaid, require by written notice theperson who made the application for certification of thefilm or the person to whom the rights of ownership ordistribution in the film have/ passed, to arrange at hisexpense to deliver print of the certified film to anyspecified regional officer within such time as may bespecifiedinthenoticeforthepurposeofre-examination.

(4)Theplace,dateandtimeofsuchre-examination shall be determined by the Chairman.

(5) The Chairman shall forward his opiniontogether with the print of the film in relation to which acertificate was issued earlier to the Central Governmentwho may after such enquiry as it deems fit, pass suchorders thereon in exercise of the revisional powersunder section 6.

(6) The provisions of this rule shall apply only incases where the revisional powers are exercisable bythe Central Government under section 6.”

14.Sub-rule (6) of Rule 32 of the said Rules clearly specifies thatthe said Rule is applicable only in cases where revisional powers areexercisable by the Central Government under Section 6 of the Act. Asstated above, in Union of India v. K.M. Shankarappa (supra), theSupreme Court had upheld the decision of the Karnataka High Courtwhereby it was held that the revisional powers in favour of CentralGovernment in respect of decisions of the CBFC and FCAT are

unconstitutional. In this view, Rule 32 of the said Rules is whollyinapplicable as, in any event, the said Rule could only apply in caseswhere revisional powers were exercisable by Central Governmentunder Section 6 of the Act.

15.Rule 32 of the said Rules has little application after the decisionof the Supreme Court in Union of India v. K.M. Shankarappa(supra). Even if it is accepted – which this Court does not – that thesaid Rule could be applied, it was necessary that the said Rule be readin conjunction with Section 6 of the Act. The Cinematograph(Certification) Rules, 1983 have been framed by the CentralGovernmentinexerciseofpowersunderSection8oftheCinematograph Act, 1952, which is for the purpose of carrying intoeffect the provisions of the Act. Thus, the said Rule has to beinterpreted in manner so as to ensure that there is no repugnancywith the main provisions of the Act. If Section 6(1) of the Act wasvalid, the Central Government was required to exercise its revisionalpowers strictly in the manner as specified therein. It was required tohold an inquiry and pass an order after hearing the applicant. TheCBFC in turn, would pass an order in conformity with revisional orderpassed by the Central Government. In terms of Sub-rule (5) of Rule32 of the said Rules, the Central Government was required to conductan inquiry after receipt of the opinion of the Chairman of CBFC andthen, pass an order. In terms of proviso to Section 6(1), such ordercould be passed only after hearing the person applying for the

certificate or to whom the certificate has been granted. As statedabove, this procedure has not been complied with.

16.Ms Acharya also contended that the Central Government retainsthe power to pass orders to take steps under Sub-section (2) of Section6 of the Act. This Court does not consider it necessary to examine thiscontention as clearly no notification under Section 6(2) of the Act hasbeen issued by the Central Government.

17.In view of the above, the petition is allowed and the impugnedorders dated 21.08.2014 passed by CBFC and 07.10.2014 passed byFCAT are set aside. The pending application is also disposed of.

18.The parties are left to bear their own costs.

AUGUST 27, 2019RK

VIBHU BAKHRU, J