Madras High Court
Yadavalaya Films, Represented By Its ... vs The Film Certification Appellate ... on 20 March, 2006
Equivalent citations: (2006)3MLJ108
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
Page 1082
1. The writ petition relates to the certification of a Tamil film titled "KUTRAPATHRIKAI" for public exhibition.
2. The petitioner launched the production of a Tamil feature film with the above title during July, 1991 and completed the same during December, 1992. The film basically revolves around the assassination of the former Prime Minister Shri Rajiv Gandhi. As the petitioner is required to obtain a censorship Page 1083 certificate for public exhibition of the film, it applied to the Chairperson of the Central Board of Film Certification, Ministry of Information and Broadcasting, Shastri Bhavan, Chennai-6 (for short "the Board") on 11.12.92. The Examining Committee of the said Board consisting of a Regional Officer and four other members, though viewed the film on 3.2.1993, did not pass any orders. Hence, the petitioner had to approach this Court by filing W.P. No. 1102 of 1993 and this Court by order dated 3.2.94, directed the Board to consider and pass orders on or before 31.3.94. After the said order was passed, the Examining Committee of the Board again viewed the film on 31.3.94 and by order dated 6.4.94 refused to issue the certificate based on the expert opinion of the Home Ministry, Government of India, which reads as follows:-
As the criminal case pertaining to the assassination of late Prime Minister Shri Rajiv Gandhi is sub-judicial and the proceedings of the Jain Commission and report of Verma Commission are yet to be finalised, it would not be in the judicial and public interest to permit the release of any trailer/film on the assassination of late Prime Minister. After the finalisation of the criminal case and Enquiry Commission's report, the certificate of the film could be considered subject to the scrutiny of the script and preview of the film from the public interest angle.
3. The petitioner, therefore, preferred an appeal before the Film Certification Appellate Tribunal, New Delhi, the first respondent (for short "the Tribunal") and the appeal was allowed on 27.6.94 by directing the Board to issue "A" certificate to the film in question subject to deletions and cuts numbering seven and they are as under:-
(1) Delete the scene of the Maruthi car crushing the dead body of the guard as it drives away before and after the murder of Padmanabha.
(2) Delete all shots of the dead bodies after the human bomb explodes.
(3) Delete the burning of the D.M.K. Election office and the shot of the D.M.K. flag on the ground.
(4) Reduce to a flash the dead body of a man hanging from a tree.
(5) Delete the entire speech of the L.T.T.E. men in the hospital 'Look here, I did not say as you have been asking as a Police Officer...' till the end of that speech.
(6) Reduce by 70% the violence in A.S.P. Ramki's house especially deleting the shots of hitting his pregnant wife on the stomach.
(7) Delete visuals of the idol of Shiva being worshipped by Shivarasan before he commits suicide.
4. After deletions and cuts were effected, the petitioner again approached the Board for certification of the film in terms of the order passed by the Tribunal. The Board in fact granted "A" certificate for the film. As the certificate was granted, it appears that the petitioner made 60 prints of the film at a cost of over Rs. 35 lakhs. The petitioner also dubbed the film in Hindi and Telugu incurring a further expenditure of Rs. 50 lakhs.
5. After the certificate was issued, the Board questioned the order of the Tribunal dated 27.6.94 by filing W.P. No. 13642 of 1994. By order dated Page 1084 6.10.94, a Division Bench of this Court set aside the order of the Tribunal and the certificate issued to the petitioner was also revoked. The directions of the Division Bench in paragraphs 3 & 4 of the order, which are relevant for the disposal of the writ petition, read as follows:-
(3) The film also introduces a character Ramakrishnan and contains sequence of Ramakrishnan saving the life of Chief Minister of Tamil Nadu, Ms. Jayalalitha. Fiction and fact are inextricably woven into the film but the impression in the minds of the viewers is one of resurrection of the assassination episode with extracts from the newspapers headlines and speeches of political leaders.
(4) The ban on the said outfit, upheld by the Court is still on. So long as the ban on the outfit is enforced any attempt through the cinema medium to present a view point highlighting the activities of the banned organisation will not be in public interest.
6. Questioning the same, the petitioner preferred appeal before the Supreme Court and the same was disposed of vide order dated 6.9.2000 by modifying the judgment of the High Court with a further direction to the Tribunal to reconsider the matter in the light of the orders passed by the Supreme Court and the relevant directions of the Supreme Court read as follows:-
When the case was taken up, Mr. Soli S. Sorabjee, learned Attorney General, appearing for the respondent stated that there has been a material change after the judgment of the High Court in two respects. First, the trial of the accused in the Rajiv Gandhi assassination is over and the second is that the Jain Commission has also submitted its report and therefore these two grounds were not available at that moment. However, with regard to the other aspects, the reasons referred to by the High Court, specially in paragraph 3 and 4 at page No. 95 are factually correct and exists and the Tribunal may be directed to reconsider the matter in the light of subsequent events that have taken place.
7. Pursuant to the directions of the Supreme Court, three members of the Tribunal namely, the Chairman, a retired Judge of the Delhi High Court, and two other Administrative Members viewed the film. By order dated 16.2.2001, the Chairman found that the film could be certified subject to certain further conditions. The two other members found that the certificate should not be granted and by separate orders dated 12.2.2001 and 16.2.2001 rejected the certification. In view of the majority decision, the application of the petitioner for issuance of censorship certificate was ultimately rejected.
8. Challenging the said order, the petitioner filed W.P. No. 24562 of 2001 before this Court. By order dated 8.2.2005, this Court set aside the order and remanded the matter back to the Tribunal for reconsideration by the entire five members in respect of the grounds mentioned in paragraphs 3 & 4 of the order of the Division Bench. At the time when the order was passed it was represented that the Tribunal by then comprised of five members and that at an earlier point of time, only three members had viewed the film. Page 1085 Subsequently, in W.P.M.P. No. 16095 of 2005 by order dated 22.9.2005, this Court had directed the Tribunal to pass orders by the four members, as by the time there were only four members.
9. Consequent upon the said order, the film was screened in Delhi and all the four members of the Tribunal viewed the film along with the Regional Officer of the Board. By order dated 15.12.2005, the Chairperson of the Tribunal allowed the appeal and directed the Board to issue the 'A' certificate to the edited version of the film as seen by the Tribunal. One of the members also agreed with the Chairperson. However, the remaining two members rejected the appeal and gave their own reasons. In view of the division of opinion amongst the four members in the ratio of 2:2, the Chairperson, by order dated 15.12.2005, had directed as follows:-
Since two of my worthy colleagues differ with my opinion and are of the view that this film should not be certified for exhibition, therefore, the opinion being divided amongst us 2:2. In this situation, it is open to both the parties to take such steps as are open to them in law.
10. It is under the above circumstances, the petitioner has again approached this Court questioning the order rejecting the appeal.
11. I heard Mr. R. Muthukumaraswamy, the learned Additional Advocate General appearing for the petitioner and Mr. R. Santhanam, the learned Senior Central Government Standing Counsel appearing for the respondents.
12. By order of the Board dated 6.4.94, the certificate was refused solely on the basis of the expert opinion of the Home Ministry, which has been extracted in the earlier portion of the order. The first two grounds relating to the pendency of the criminal case pertaining to the assassination of late Prime Minister Shri Rajiv Gandhi, and the proceedings of the Jain Commission and Verma Commission were not finalised. While passing orders on 6.9.2000, the Supreme Court held that "firstly the trial of the accused in the Rajiv Gandhi assassination is over and secondly, the Jain commission has also submitted its report and therefore these two grounds were not available at that moment". In view of the above, the Apex Court had only directed the Tribunal to reconsider the matter in the light of the subsequent events that have taken place, especially in regard to paragraphs 3 and 4 of the order of the Division Bench dated 6.10.94. The relevant paragraphs of the Division Bench order are also extracted in the earlier portion of the order.
13. In the light of the above, this Court should consider as to whether the order of Tribunal is justified. Though the two members including the Chairperson of the Tribunal had cleared the film for certification, as the remaining two members did not accord their approval, by the impugned order, the certificate was rejected. When the very issue came up for consideration, after considering all the objections and also cuts and deletions made by the petitioner, the Supreme Court had directed the Tribunal only to reconsider the matter in respect of the directions of the Division Bench made in paragraphs 3 & 4. The Division Bench of this Court was of the view that the act of Ramakrishnan saving the life of the Chief Minister of Tamil Nadu was Page 1086 fiction. It is the contention of the petitioner that when the matter came up before the Supreme Court, in fact, it was argued that the reasons referred to by the High Court in paragraphs 3 & 4 are factually correct and existed and only on the above submissions, the Supreme Court directed the Tribunal to reconsider the matter in the light of the subsequent events that have taken place, particularly with reference to paragraphs 3 & 4 of the Division Bench order. While considering the above, the Chairperson had simply stated that the Division Bench of the High Court was of the view that the act of Ramakrishnan saving the life of the Chief Minister of Tamil Nadu was fiction and it was in fact conceded before the Supreme Court that it was not fiction but factually correct. In my opinion, the said finding of the Chairperson is factually incorrect. Though the Division Bench in paragraph 3 of the order had mentioned the incident as fiction, the issue as to whether such fiction and fact would create an impression in the minds of the viewers to the resurrection of the assassination episode was not decided and was left to the Board/Tribunal to decide the same. The said issue was also not considered and decided by the Supreme Court, as the same was left to the decision of the Tribunal. As per the direction, the Tribunal should have considered the said issue. From a reading of the order of the Chairperson, it is seen that the said aspect has not been gone into. In the absence of any discussion on the above, I am not inclined to accept the finding of the Chairperson in this regard, which finding has been agreed to by one of the members. That apart, this aspect was also not considered by the remaining two members. Though I have held that there is no specific and elaborate discussion by the Tribunal on paragraph 3 of the Division Bench order, considering the fact that the film was produced as early as in the year 1991 and the issue as to the certificate is still pending, paragraph 3 of the order could be considered by this Court. The film revolves the incident that had taken place prior and after the assassination of late Prime Minister Shri Rajiv Gandhi. The incident introduced in the later part of the picture relating to an attempt by the outfit on the life of the Chief Minister of Tamil Nadu and the police officer saving her life is only a fiction and is not based on any incident that had happened. Fiction which would amount to create an impression in the minds of the public that the banned outfits are still continuing their activities aiming the leaders of this country, such impression, if created, among the public would not be in the interest of law and order and public safety. In my opinion, the episode relating to the attempt on the life of the Chief Minister of Tamil Nadu Ms. J.Jayalalitha should be cut and deleted from the film, as no certificate could be given for that part of the film.
14. So far as paragraph 4 of the Division Bench order is concerned, it relates to the issue as to the highlighting of the activities of a banned organisation, which would not be in the public interest. Before going to the direction made by the Division Bench in paragraph 4 of the order, the scope of Article 19(1) must be first considered. Freedom of speech includes freedom of propagation of ideas. It also includes the freedom to produce a film depicting incidents that had in fact happened. People of this country have a right to know through motion picture as to how their mass leader was assassinated. The right to know is a basic right which the citizens of free country aspire in the broadened Page 1087 horizon of the right to live in the age of our land under Article 21 of our Constitution. This right has reached new dimensions and urgencies. The right puts upon those who take upon the responsibility to inform. In the judgment in Dinesh Trivedi v. Union of India , the Supreme Court has held that "right to a citizen about the incident happened could be derived from the concept of fundamental freedom of speech".
15. Hitherto they were aware of the fact through press that the leader was assassinated by a human bomber. Taking to the people of the incident which no one would have anticipated or have intended cannot be called as one against public interest. Exhibition of motion pictures can be used to take the ghastly incident to the public. In Bobby Art International v. Om Pal Singh Hoon , the Supreme Court had observed that "film intended to depict consequences of social evil can show the evil to the extent which is relevant for the purpose of the film and no film that extolls the social evil or encourages it is permissible". The ban on outfit though is still in force, that will not in any way infringe either the freedom of speech and expression through motion picture by the producer or the right of the citizen to know the manner in which the mass leader was assassinated. To this extent, the finding of the two members deciding to reject the appeal cannot be accepted. The Supreme Court had an occasion to consider the right guaranteed under Article 19(1) of the Constitution of India in the judgment in S. Rangarajan v. P. Jagjivan Ram and the Supreme Court has held in paragraph 40 as follows:-
Movie is the legitimate and the most important medium in which issues of general concern can be treated. The producer may project his own message which the others may not approve of. But he has a right to 'think out' and put the counter-appeals to reason. It is a part of a democratic give-and-take to which no one could complain. The State cannot prevent open discussion and open expression, however hateful to its policies.
In Life Insurance Corporation of India v. Manubhai D. Shah , the Supreme Court had observed in paragraph 23 as follows:-
From the above discussion it follows that unquestionably the respondent had a right to convey his perception of the gas disaster in Bhopal through the documentary film prepared by him.... Even according to the petitioners 'the documentary is an appraisal of what exactly transpired in Bhopal on the date of gas leak occurred'. The petitioners, therefore concede that the film faithfully brings Page 1088 out the events that took place at Bhopal on that fateful night. Therefore the respondent cannot be accused of having distorted the events subsequent to the disaster. How then can it be alleged that it is not fair and balanced or lacks in moderation and restraint? It is nowhere stated which part of the film lacks moderation and/or restraint nor is it shown how the film can be described as not fair and balanced. Merely because it is critical of the State Government, perhaps because of its incapacity to cope with unprecedented situation, is no reason to deny selection and publication of the film. So also, pendency of claims for compensation does not render the matter sub-judice so as to shut out the entire film from the community. In fact the community was keen to know what actually had happened, what is happening, what remedial measures the State authorities are taking and what are the likely consequences of the gas leak. To bring out the inadequacy of the State effort or the indifference of the officers etc., cannot amount to an attack on any political party, if the criticism is genuine and objective and made in good faith.... It is even today of relevance and the press has been writing about it periodically.
16. In the light of the above law laid down by the Supreme Court, it is to be now seen as to whether the release of the picture may highlight the activities of a banned organisation, which would not be in the public interest. As on today, the fact remains that the trial ended in conviction and the events that the film depicts are more or less factually correct on the ghastly incident. Can it be said that in the event the film is released depicting the correct picture of what had happened would not be in the interest of public? In my opinion, a film that narrates the events that had happened and was established in the Court of law could be screened as it would only enable the public to satisfy their genuine desire to know as to how their mass leader was assassinated. By the screening of the film, at no stretch of imagination, it could be said that it would not be in the interest of public, merely because the assassination was carried on by the L.T.T.E., a banned organisation. On the other hand, the people will have an opportunity to know the activities of the banned organisation and such information to the public would be in their own interest. The film which gives a picture of the incident that had happened, in my opinion, does not create imminent danger or apprehension in the circumstances to call an extreme step of curtailing the freedom of expression. The incident that took place is a fact and it is the truth. The Court could examine the film and judge whether it is public display, in the given time and clime, so breaches public morals or public order or public interest. There is a complete change in the circumstance, namely, that the trial was over and the conviction was confirmed by the Supreme Court as well. This subsequent development has weighed in the mind of the Chairperson and the other member to come to a conclusion for the grant of certificate.
17. On the other hand, the two other members have gone beyond the directions of the Supreme Court by once again going back and discuss the film relating to the assassination only as fiction. One of the members has observed that Page 1089 "in dark theatre, the audience are completely involved in the cinema leading to strong imprint on their minds. In India, cinema being most popular medium, the gullible audience feels that what is shown on the screen is the fact and truth. When the audience sees this film they are made to believe that it is only Rajiv Gandhi who has invited the human bomb to come nearer to him.... But the fact as per the book written by SIT Chief Mr. D.K. Karthikeyan is that Rajiv Gandhi never invited the human bomb to come nearer to him but she has preplanned and somehow managed to go nearer to him". In my opinion, the above cannot be a ground to deprive the right of expression, especially when the fact remains that Shri Rajiv Gandhi was assassinated only by the human bomb. It may not be that much relevant to reject the screening of the film as to whether Shri Rajiv Gandhi invited the human bomb to come nearer to him or the human bomber herself has managed to come nearer to him. Apart from the above, I do not find any other justifiable reason for the member to refuse the certificate. Yet another member had in fact gone beyond the directions by going to the question of sovereignty and integrity of India, friendly relation with a foreign state, public order/ decency or morality etc. These are all matters which are not covered in paragraphs 3 & 4 of the Division Bench order and the reliance placed on these reasons for rejecting the certificate cannot be accepted.
18. Considering the above discussion and the reasoning, I am of the view that the writ petition should be allowed. Accordingly, the writ petition is allowed and the orders of the two members rejecting the appeal are set aside. The petitioner is directed to cut and delete the sequence relating to the attempt made by the outfit on the life of the Chief Minister of Tamil Nadu Ms. J.Jayalalitha and the consequent sequence showing the character Ramakrishnan saving her life. In the event the said cut and deletion are made, the second respondent is directed to issue the 'A" certificate to the film "KUTRAPATHRIKAI" to enable the petitioner to release the film for public exhibition. No costs. Consequently, W.P.M.P. No. 1701 of 2006 is closed.