Delhi High Court
S. Bala vs Union Of India And Ors. on 1 November, 1995
Equivalent citations: 61(1996)DLT122
Author: M.J. Rao
Bench: M.J. Rao
JUDGMENT Anil Dev Singh, J.
(1) The matter relating to pilot episode of the proposed serial 'Swami Vivekananda' prepared by the petitioner has again come back to us as the respondents after our directions dated December 20,1994 in Cwp No. 2398 of 1994 have not approved the same. In that order we had directed that the respondents should have the Pilot pre-viewed again by the Committee comprising of the same members which had pre-viewed it earlier on May 26,1993 and take a final decision in the light of the recommendations of the Committee. The operative portion of our order reads as under: "Though we have undoubted power to issue a mandamus to compel the respondents to telecast the serial, as the petitioner has removed the defects pointed out in the second report of the Pre-view Committee, yet, we would think that another opportunity should be given to the respondents to properly and lawfully exercise their discretion. In the circumstances of the case, we are of the opinion that the revised pilot should be pre-viewed again by the same Committee which pre-viewed the Pilot earlier on May 26, 1993. Accordingly, the writ petition succeeds. The impugned order dated April 7,1994 is hereby quashed and the respondents are directed to get the revised Pilot submitted by the petitioner previewed within 15 days from the date of this order by the same Committee comprising of the same members who had pre-viewed the Pilot earlier on May 26,1993. The respondents are also directed to take a final decision in the light of the recommendations of the Pre-view Committee within three weeks thereafter. The petitioner will also be entitled to costs in the sum of Rs. 5,000.00 from the respondents..................."
(2) In order to appreciate the controversy between the parties it would be necessary to point out that in earlier round of litigation between the parties, the Supreme Court on August 19, 1991 in Special Leave Petition No. 4850 of 1991, arising from the judgment dated December 20,1990 of this Court in C.W.P. No. 4028/1990, passed the following order: "The special leave petition is adjourned for eight weeks. In the meantime, the petitioner will make a representation to the authorities concerned and suggest names of the persons who will form the Committee for consideration on her representation as well as Pilot' (episode for the proposed tele-film). The Committee after considering and hearing the same record a reasoned order."
(3) After the aforesaid order of the Supreme Court four Committees have previewed the Pilot prepared by the petitioner, including the Committee which was constituted after our order dated December 20, 1994. The first Committee was constituted pursuant to the aforesaid order of the Supreme Court whereby the petitioner was permitted to suggest the names of the persons who were to form the Committee for consideration of the Pilot. The petitioner suggested the names of Swami Gokulanand, the Head of the Ramakrishna Mission at New Delhi, Shri B.M. Shah, Professor, National School of Drama, New Delhi and Shri R.S. Malhotra, Film Officer, Sangeet Natak Academy, New Delhi. The minutes of the first Committee, which pre-viewed the Pilot on October 4,1991, are as follows: "DECISION Of The COMMITTEE; 1. The pre-view Committee was unanimous in that, the selection of the subject is perfect but the execution leaves much to be desired.Swamiji is acceptable visually, but leaves a lot of room in acting, to do justice to the great personality of Swami Vivekananda. 2. The sequence: Spitting on the photograph of the Maharaja, facts, are authentic but some exaggerated portions have crept in. 3. Dancer's song: Voice and accent not up to the mark. Dancer's song should be sung by a more professional singer. Dance sequence too long. Swamiji's reactions to the dance: concluding sequence: The change of mood are too abrupt. Climax has not been built up. Main subject is diluted, appropriate perspective is not given to Swamiji. It is not satisfying overall. The character of Swamiji needs to be forceful and impressive which is totally lacking. Technically it needs a strong team who will execute their work professionally. 4. The topic is very suitable for a serial but the execution to be up to the mark"
(4) The petitioner took into consideration all the observations made by the Committee and rectified the defects. It seems that, thereafter, the revised Pilot was again appraised by the pre-view Committee on March 26,1993 (hereinafter called the second pre-view Committee). The relevant extract from their report is as follows: 125 xxx 5. Members of the Committee: 1. SwamiGokulananda 2. Shn R.S. Malhotra. 3. xxxxxxxxxxxxx 8. Observations: "1. The name of the serial should be Swami Vivekananda and not Vivekanand. 2. The costume worn by the person playing the role of Swamiji should be of Saffron colour and not with the reddish tinge as shown now. 3. The Bengali song sung by Swamiji in the street should be avoided. If at all sung, it should be as per authentic records from his biography. 4. The sudden out-burst of anger was overdone. There should be expression of strength and not of anger.
(5) Kamandulu which has been shown should be one which is used by a monk. The producer should have a look at the Kamandulu used by Swami Vivekananda and is kept in his room. 9. Decision of the Committee:-All the observations made earlier have been incorporated. 10. Signatures of the Members: 1. sd/- Swami Gokulananda 2. sd/- R.S. Malhotra. 3. A. Banerjee. 4. Raj Mani Rai."
(6) There is a controversy regarding the number of members who comprised the Committee. According to the petitioner, only Swami Cokulanand and Mr. R.S. Malhotra constituted the Committee as the report is signed only by them. However, the respondents have taken a stand that there were four members of the Committee which included S/Shri Rajmani Rai and Ananya Banerjee, both from Doordarshan. We propose to deal with this controversy in the later part of the judgment.
(7) It is apparent from Col. 9 of the second pre-view Committee report that 'all the observations made in earlier report had been incorporated'. In order to comply with the fresh observations of the Committee, the petitioner again revised its Pilot and submitted the same for pre-view to the respondents. This time the pilot was previewed by five members, namely, Swami Gokulnanand, Shri Nirmal Sikdar, Deputy Director General, Ms. Urmila Gupta, Deputy Director General, Shri Rajmani Rai, Controller of Programmes and Shri V. Basavaraj. Controller of Programmes on March 28, 1994. The relevant extract from the report of the third pre-view Committee is as follows : Brief report about the contents: 1. The observations made earlier have been attended to. 2. This should be approved. 3. Since the serial is being directed by a renowned Producer Shri Phani Mazurndar and the person who was playing the role of Swami Vivekananda has got training from Swami Jithananda...(sic.) and the message of Swami Vivekananda is.......(sic) relevance even today. It should be telecast on Sundays at prime time" sd/- Cokulanand 28.3.1994 8. Quality of the Programme : Ordinary/ Good/Very Good/Outstanding. x xxx xxxxxxxxxxxx 10. Final Decision With regard to authenticity, Swami Gokulanandji, Secretary, Rama Krishna Mission, Delhi has certified that the incidents are true. However, there are several shortcomings which are listed as follows : (i) The overall script and dialogues are not of a very high standard. The script needs to be re-worked by a well known script/dialogue writer of stature. (ii) The central figure of Swami Vivekananda as portrayed by Pankaj Shah does not bring out the commanding personality of Swami Vivekananda The capacity of the actor's dialogue delivery, expressions and gestures are neither forceful enough nor magnetic. His histrionic ability and voice are not convincing.They have no weight and dignity that we associate with Swami Vivekananda. It is doubtful, if Pankaj Shah would be able to rise to the standard required in the forthcoming episodes. (iii) The flavour of the period has not been brought out. Very little attention has been paid to details with regard to decor,artifacts, costumes, etc. For example, shots of railway station - focus on modern day signs. Some of the interiors are garish and look extremely unrealistic. The art direction and sets are amateurish and need great improvement. (iv) The sequence having some reference to the Holy Quran is unnecessary, especially, where there is some mention of re-writing the Quran. (v) The overall treatment and direction is not commensurate with the dignity of the subject. It is 'Filmi' and quite pedestrian. A badly/poorly made Tv serial on 'Swami Vivekananda will do more damage than good and will defeat the very purpose for which the concept has been approved and will bring disrepute to Doordarshan. (vi) In its present form, therefore, the pilot is not approved for the second time. Sd / Nirmal Sikdar sd/- Urmila Gupta, sd/- Rajmani Rai sd/- V.Basavaraj"
(8) As is evident the four official members of the Committee were not the members of the Committee which was set up pursuant to the order of the Supreme Court dated August 19,1991. Another striking feature of the third pre-view Committee report is that the observations of the official members are with regard to the matters which were neither pointed out by the first pre-view Committee nor by the second pre-view Committee. In our earlier order dated December 20,1994 we had pointed out that after the petitioner removed the imperfections from the Pilot as specified in the first and second reports of the pre-view Committees, the respondents came up with altogether new set of grounds on which approval for the Pilot was refused. We also found fault with the respondents for packing the third preview Committee with members different from the ones which were members of the second pre-view Committee. Thus we felt that the procedure adopted by the respondents was unfair. In the circumstances we directed that the revised Pilot should be pre-viewed again by the same Committee comprising of the same members which pre-viewed the Pilot earlier on May 26, 1993.
(9) Pursuant to our direction of December 20,1994 the respondents constituted another Committee (hereinafter referred to as the fourth pre-view Committee) consisting of Swami Gokulananda, Shri R.S. Malhotra, Ms. Urmila Gupta, Deputy Director General and Shri Ananya Banerjee. It seems that three out of four members of the Committee pre-viewed the Pilot episode on February 20,1995 and gave their report. This position emerges from the fact that only three members have recorded their views and signed the report. While Swami Gokulananda and Shri R.S. Malhotra approved the serial for 52 episodes and recommended the same to be telecast at prime time on Sunday mornings, one of the official members rejected the pilot in its present form. The report of the Committee is as follows : xxxxxxxxxxxxxxx Brief report about the contents and production quality: Earlier observations made on 26.5.93 have been fully incorporated. xxxxxxxxxxxxxxxxx (10) Final decision: Approved initially for 52 episodes of serial be telecast at prime time on Sunday morning. Sd/ Swami Gokulananda Sd/ R.S. Malhotra Ramakrishna mission Sangeet Natak Academy New Delhi-55 New Delhi. 20.2.95 20.2.95 "The views of Dd officials as stated in the 3rd Pre-view Committee are reiterated. The serial based on the Pilot cannot be accepted due to poor technical quality. Further it is understood that the film director Phani Majumdar whose name was mentioned as director of the revised Pilot episode is not in a position to direct the serial. The producer has not intimated the defects of the technical team as was pointed out in the 1st Pre-view Committee report of 1991. The Pilot in its present form is rejected." sd/- (Urmila Gupta) 20.2.95.
(11) From the copy of the report which is on record, it is clear that the same was signed only by'one of the official members. That apart there is a basic defect in the constitution of the Committee. As already noticed, in our order dated December 20,1994 we had observed that the respondents were not justified in changing the constitution of the third pre-view Committee. In the circumstances, therefore, we had directed the respondents to have the Pilot pre-viewed again by the same Committee comprising of the same members which had pre-viewed the Pilot earlier on May 26,1993. In purported compliance of our order the respondents constituted the fourth Committee in which Ms. Urmila Gupta and Mr. Ananya Banerjee were inducted as members in addition to Swami Gokulananda and Mr. R.S. Malhotra. The stand of the respondents that the Fourth Committee, which pre-viewed the Pilot on February 20, 1995 was the same which had earlier pre-viewed the Pilot on May 26,1993 (i.e. the second Committee) does not seem to be correct. Perusal of the copy of the report of the second pre-view Committee which is on record of Cwp No. 2398 of 1994 (Annexure R-VIII to counter affidavit dated November 24, 1994 filed on behalf of respondents 1 to 6 and 8 to 10 at page 139 of the writ file.), however, shows that the same is signed only by Swami Gokulanand and Shri R.S. Malhotra. The explanation given by the respondents is that though Sh. Rajmani Rai and Shri Ananya Banerjee were members of the Committee, they had recorded their views, not approving the Pilot, separately in the file. At this stage it may be mentioned that in Writ Petition No. 2398 of 1994 the respondents did not take this stand. It is an admitted position that the alleged observations of the two officials were not communicated to the petitioner nor produced in Court in the earlier writ petitions till their disposal. In the affidavit dated February 24, 1994, affirmed by the Chief Producer, Doordarshan, New Delhi filed in an earlier writ petition, (CWP No. 5186 of 1993), it is asserted that the report of the second pre-view Committee dated May 26,1993 was supplied to the petitioner. Along with this affidavit a copy of the second pre-view Committee report was annexed and marked as Annexure IX. Column 5 of said annexure only mentions the names of Swami Gokulananda and Shri R.S. Malhotra as members of the Committee. There are no other names mentioned in that column. Column 10 of the report, which is meant for signatures of the members, contains signatures only of Swami Gokulananda and Shri R.S. Malhotra though names of Shri Rajmani Rai and Shri Ananya Banerjee are also mentioned. However, there are no signatures against their names. Therefore it can not be legitimately claimed by the respondents that in the second pre-view Committee the Pilot was also previewed" by Shri Rajmani Rai and Shri Ananya Banerjee, when only the views of Swami Gokulananda and Shri R.S. Malhotra were recorded and communicated to the petitioner. Therefore, the plea of the respondents, which is being taken for the first time in the affidavit of Shri R. Basu, Director General, Doordarshan dated July 18,1995 that the two other official members had recorded their views separately in the file, is of no avail to the respondents and must be ignored. The respondents cannot be permitted to set up a new case. They cannot take advantage of the alleged views of its officials regarding the Pilot which were not communicated to the petitioner especially when acting on the observations of Swami Gokulananda and Shri R.S. Malhotra, which were the only observations communicated to her, the Pilot was revised by her. In the third pre-view Committee report, Swami Gokulananda expressly stated that the observations made earlier by the Committee have been attended to by the petitioner.
(12) It is not understandable how Ms. Urmila Gupta was appointed as a member of the fourth Pie view Committee as she was admittedly not a member of the second pre-view Committee. The addition has been sought to be justified by the respondents on the ground that Shri Rajmani Rai had retired which necessitated his replacement and accordingly Ms. Urmila Gupta was appointed in his place as a member. It may be pointed out that the respondents were conscious of the fact that such an appointment can not be made in view of our direction dated December 20,1994 and had in fact moved an application, Cm 2563 of 1995 in Cwp 2398 of 1994, whereby it was prayed that the order dated December 20,1994 be modified to the extent that a new officer may be permitted to be included in the pre-view Committee in place of Shri Raj Mani Rai Controller of Programmes. However, even before obtaining the permission,the respondents appointed Ms. Urmila Gupta as member of the Committee. The induction of official member/members in the fourth preview Committee also runs contrary to the order of the Supreme Court dated August 19,1991.
(13) We also find that the respondents have been changing their stand from time to time. A comparison of the 2nd, 3rd and 4th pre-view Committee reports show that the respondents had not pointed out the so-called shortcomings in the Pilot episode in one go. After the petitioner attended to the observations of the second pre-view Committee the respondents came out with another set of deficiencies in the Pilot episode. The treatment meted out to the petitioner by the respondents has been unfair and unreasonable. All the alleged deficiencies in the Pilot, should have been pointed out at the initial stage itself when the Pilot was pre-viewed on October 14,1991 by the first Pre-view Committee.
(14) As already noted, the non official members of the fourth pre-view Committee approved the Pilot while Ms. Urmila Gupta, one of the official members rejected the same.The view of Ms. Urmila Gupta was the minority view as two nonofficial members had approved the Pilot. In para 11 of the affidavit of Shri R. Basu. Director General, Doordarshan dated July 18,1995 in Ccp 57 of 1995 it is stated that 'the file was put up to the Director General who rejected the proposal on March 15, 1995'. In another affidavit of Shri R. Basu, Director General dated August 7, 1995 in Ccp 57 of 1995, it is averred that subsequently the matter was reconsidered and the Pilot was personally viewed by him keeping in mind only the recommendations of the outside members, namely, Swami Gokulananda and Shri R.S. Malhotra made in the Pre-view Committee Report dated February 20, 1995 but the same was rejected. The Director General lists the following grounds on which he rejected the Pilot episode: 1.1 The Review Committee has failed to grade the quality of the Pilot episode in terms of paragraph 8 of the report. As specified by the format it was incumbent upon the Committee to indorse one out of the 4 different gradings prescribed, which were, "ordinary /Good/Very Good/Outstanding". This has not been done. Hence there is no indication as to the Committee's decision regarding the quality of the Pilot episode of "Swami Vivekananda" 1.2 In the same context, paragraph 9 requires the Committee to give further recommendation of the quality. This too is left blank.
(15) I am, therefore, of the view that the said pre-view Committee has not applied its mind at all to the quality of the pilot. 1. I reiterate that in matters relating to assessment of programmes prepared for various media, two aspects i.e., quality and content are distinct and clearly separable. For the assessment of a programme at any level; be it the approval of critics, viewers, or even an approving agency selecting a programme' both these elements play a vital role. What distinguishes a good television serial or film from a poor one is not only the authenticity and accuracy of the facts represented in the programme but also its quality or production values. In order to ensure that a television serial dealing with such a great personality does justice to the person, it is essential that the production itself in terms of the production values, such as sets, constumes, use of period sconces, lighting, use of camera angles as also the characterisation of the main lead actor, are very carefully co-ordinated. All this constitutes "quality". The Committee has not taken this aspect into consideration while assessing the programme. 2. In para 10 of the report which requires the Committee's final decision, there to, I find that whereas the rules provide for approval for 13 episodes; the Committee has approved the serial "initially for 52 episodes. It may be pointed out that under the rule, if more number of episodes are required to be recommended prior approval of the Competent Authority i.e., of the Director General, Doordarshan is required to be obtained, which in this cast was not done. 3. Even as regards the said Committee's decision that the serial should be telecast at prime time on Sunday mornings: it is stated that rule 7(i) of the Guidelines for processing and approval of sponsored programmes stated, "The slotting of the programme shall, however, be subject to the condition that the first 4 episodes in respect of serialized programme are found to be satisfactory in all respects". In addition, the airing of the programme is also subject to the payment of required sponsorship fee to Doordarshan."
(16) As seen above, one of the objections of the Director General is that Fourth Pre-view Committee failed to grade the quality of the episode. In this regard it is significant to note that in none of the earlier reports of the pre-view Committee any such rating was given. If the objection is taken to its logical conclusion, all the members of the Committee have to give the grading in column 8 of the report. Again as per the views of the Director General, the remarks have to be given by the members of the Pre-view Committee against each column of the form prescribed for the purpose. In other words, all the members of the Committee have to record their views together in the prescribed form and not separately. If this is so, no credence can be given to the stand of the respondents that some members of the second pre-view Committee had recorded their views disapproving the Pilot separately in the file.
(17) Be that as it may, during the course of the arguments, learned Counsel for the respondents submitted that the respondents were ready to have the pilot episode again pre-viewed by any person or persons of eminence in the field of films/ serials. It was also submitted that any decision taken by such person or persons would be binding on Doordarshan. In this regard the respondents proposed certain names. We have given our thoughtful consideration to the offer of the learned Counsel for the respondents.Though the petitioner has been fighting the litigation since long and has been treated unfairly and unjustly by the respondents, yet we would think that in order to have the quality of the Pilot examined some persons of eminence in the field, should be appointed to pre-view the Pilot episode again. In case they find the Pilot to be up to the mark it will vindicate the stand of the petitioner. We, therefore, appoint S/Shri K. Vishwa Nath, Girish Karnad and Prabhat Munjal to make an appraisal of the pilot episode of the proposed serial "Swami Vivekananda". They shall give the views on all aspects of the pilot episode and will also decide whether it is fit to be telecast and if it is not fit in its present form, could it be telecast after improvements. The views of the Committee will be binding on the respondents. In case the aforesaid experts approve the Pilot, the respondents would be bound to telecast the serial. It will be open to the petitioner to be present at the time of pre-view of the pilot by the experts and explain her point of view relating thereto. The Committee will notify the time and place for pre-view of the pilot well in advance to the petitioner. The experts will file their report on the prescribed form within four weeks in this Court in a sealed cover. The expenses of the Committee and members thereof will be borne by the respondents.
(18) Intimation of this order be given to the members of the Committee by the respondents.
(19) For further directions list the matter Along with Cm No. 4659 of 1995 in Cw 2398/94 and Ccp No. 57 of 1995 on January 15, 1996.