Kerala High Court
Sanal Kumar Sasidharan vs Union Of India on 13 December, 2016
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 21ST DAY OF NOVEMBER 2017/30TH KARTHIKA, 1939
W.P(C).No.36600 of 2017 (Y)
------------------------------------
PETITIONER(S):-
---------------
SANAL KUMAR SASIDHARAN,
AGED 40 YEARS, S/O. SASIDHARAN,
PERMANENTLY RESIDING AT 'MELATHIL',
MRA-35, PLANCHERRY LANE, PUNNAPURAM,
VALLAKADAVU, THIRUVANANTHAPURAM-695008.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.MANU SEBASTIAN
RESPONDENT(S):-
---------------
1. UNION OF INDIA,
REPRESENTED BY SECRETARY TO THE MINISTRY OF
INFORMATION & BROADCASTING,
SASTHRI BHAVAN, RAJENDRA PRASAD MARG, NEW DELHI-110001.
2. DIRECTOR,
DIRECTORATE OF FILM FESTIVALS,
MINISTRY OF INFORMATION & BROADCASTING, SASTHRI BHAVAN,
RAJENDRA PRASAD MARG, NEW DELHI-110001.
3. FESTIVAL DIRECTOR,
48TH INTERNATIONAL FILM FESTIVAL OF INDIA, GOA,
DIRECTORATE OF FILM FESTIVALS,
MINISTRY OF INFORMATION & BROADCASTING,
SASTHRI BHAVAN, RAJENDRA PRASAD MARG, NEW DELHI-110001.
4. CONVENER,
STEERING COMMITTEE,
48TH INTERNATIONAL FILM FESTIVAL OF INDIA, GOA,
DIRECTORATE OF FILM FESTIVALS,
MINISTRY OF INFORMATION & BROADCASTING, SASTHRI BHAVAN,
RAJENDRA PRASAD MARG, NEW DELHI-110001.
5. CHAIRMAN,
JURY OF FEATURE FILMS, INDIAN PANORAMA,
48TH INTERNATIONAL FILM FESTIVAL OF INDIA, GOA,
DIRECTORATE OF FILM FESTIVALS,
MINISTRY OF INFORMATION & BROADCASTING, SASTHRI BHAVAN,
RAJENDRA PRASAD MARG, NEW DELHI-110001.
R1 TO R5 BY CENTRAL GOVERNMENT COUNSEL SMT.C.G.PREETHA.
R1 TO R5 BY SRI.N.NAGARESH, ASG OF INDIA.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 20-11-2017, THE COURT ON 21-11-2017 DELIVERED THE FOLLOWING:
WP(C).No.36600 of 2017 (Y)
--------------------------
APPENDIX
PETITIONER(S)' EXHIBITS:-
-------------------------
EXHIBIT P1 A TRUE COPY OF INVITATION DATED 13.12.2016 FORM
INTERNATIONAL FILM FESTIVAL OF ROTTERDAM.
EXHIBIT P2 A TRUE COPY OF EMAIL DATED 29.03.2017 ON BEHALF OF
IFFR DIRECTOR CONGRATULATING THE PETITIONER FOR
WINNING AWARD.
EXHIBIT P3 A TRUE COPY OF INVITATION FROM GOLDEN APRICOT YERAVAN
FILM FESTIVAL, ARMENIA.
EXHIBIT P4 A TRUE COPY OF EMIAL DATED 30.07.2017 FROM GIFF
CONGRATULATING THE PETITIONER FOR WINNING AWARD.
EXHIBIT P5 A TRUE COPY OF EMAIL DATED 24.07.2017 FROM PESARO FILM
FESTIVAL, CONGRATULATING THE PETITIONER FOR WINNING
THE AWARD.
EXHIBIT P6 A TRUE COPY OF CERTIFICATE OF SPONSORSHIP.
EXHIBIT P7 A TRUE COPY OF LETTER OF INVITATION DATED 01.03.2017
FROM KERALA STATE CHALACHITRA ACADEMY.
EXHIBIT P8 A TRUE COPY OF EMAIL DATED 26.09.2017 FROM CREATIVE
DIRECTOR, MUMBAI FILM FESTIVAL.
EXHIBIT P9 TRUE COPY OF CBFC CERTIFICATE DATED 10.10.2017.
EXHIBIT P10 A TRUE COPY OF ONLINE APPLICATION SUBMITTING THE
PETITIONER'S FILM FOR INDIAN PANORAMA IN IFFI.
EXHIBIT P11 A TRUE COPY OF RECEIPT EVIDENCING PAYMENT OF
RS. 10,000/- TO IFFI.
EXHIBIT P12 A TRUE COPY OF DETAILS OF INDIAN PANORAMA DOWNLOADED
FROM OFFICIAL WEBSITE OF IFFI.
EXHIBIT P13 A TRUE COPY OF INDIAN PANORAMA REGULATIONS 2017.
EXHIBIT P14 A TRUE COPY OF STATEMENT OF MR.APURVA ASRANI,
REPORTED IN MUMBAI MIRROR ON 11.11.2017.
EXHIBIT P15 A TRUE COPY OF NEWS ITEM PUBLISHED IN MUMBAI MIRROR
ON 11.11.2017.
EXHIBIT P16 A TRUE COPY OF NEWS ITEM PUBLISHED IN INDIAN EXPRESS
ON 14.11.2017.
EXHIBIT P17 A TRUE COPY OF EMAIL DATED 13.11.2017 SENT BY
PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P18 A TRUE COPY OF DETAILS OF MODIFICATIONS IN THE FILM
ENDORSED BY REGIONAL DIRECTOR, CBFC,
THIRUVANANTHAPURAM ON 10.10.2017.
EXHIBIT P19 A TRUE COPY OF CERTIFICATE FROM MUMBAI FILM FESTIVAL.
RESPONDENT(S)' EXHIBITS:-
------------------------- NIL.
VKU/- [ TRUE COPY ]
K. Vinod Chandran, J
-----------------------------------------
W.P.(C).No.36600 of 2017-Y
-----------------------------------------
Dated this the 21st day of November, 2017
JUDGMENT
A film which won critical acclaim and many awards outside the country, is not permitted to be screened in the Indian Panorama of the 48th International Film Festival of India [IFFI] at Goa. Earlier, when the film was attempted to be screened in a Mumbai Film Festival, it was not certified and the organizers were unable to get an exemption, which fact was communicated to the petitioner, by Exhibit P8. The objection of the Ministry, which has to grant the exemption; when there is no certification from the Central Board of Film Certification [CBFC] as is revealed from Exhibit P8, was the title of the movie. According to the Ministry it hurts the religious sentiments of Hindus for reason of the title being derogatory of a Hindu Goddess.
2. The petitioner proffered the film for screening at the Film Festival scheduled at Goa, organized by the Director of Film Festival, IFFI in the Indian Panorama-2017. The Jury having granted entry to the petitioner's movie, it was a shock to see a press release WP(C) No.36600 of 2017 - 2 - of the Ministry, dropping two films from the festival, one of which was the petitioner's film. The petitioner sent an e-mail to the Ministry of Information and Broadcasting [referred to as 'Ministry'], informing the Ministry that the film has obtained 'U/A' certificate of CBFC, without any visual cuts. The petitioner points out that, on submission for certification, the petitioner was issued with Ext.P18, which directed certain modifications by way of excision of certain words from the sound track and change of title. The film is now titled 'S.Durga' with the excision carried out and is ready for screening as per the certification. The Ministry's decision has not been communicated and the statement filed by the respondent indicates that there is no order issued other than the press release. The petitioners film hence has to be directed to be screened in the 48th IFFI as per the entry granted by the jury. This is the gist of the writ petition.
3. The learned Central Government Counsel first raises the objection of lack of jurisdiction. It is submitted that there is no pleading in the writ petition, but of the film having used Malayalam language, to confer jurisdiction on this Court. The Film Festival is conducted at Goa and the decision of the Ministry has been taken at New Delhi. The movie was refused entry for reason of violation of the WP(C) No.36600 of 2017 - 3 - regulations as brought out in Exhibit P13 applicable to the IFFI. The fact that the characters in the movie speak in Malayalam or it has been shot in Kerala does not confer jurisdiction on this Court to interfere with the decision taken at New Delhi to refuse screening at the festival held in Goa. The learned CGC also places reliance on the decisions reported in Anand Anoop v. Union of India & Others [2014 KHC 377], Registrar, Indian Maritime University, Chennai v. Dr.K G Viswanathan & Another [2014 (4) KHC 451], Nawal Krisha Sharam v. Union of India & Others [2014 (4) KHC 4507], Madhavan Nair G. v. Union of India & Others [2016 KHC 234] and Bharath Kumar Ghosh v. Union of India [2017 KHC 2079]; to urge this Court to reject the writ petition on the issue of maintainability.
4. The film obtained certification only on 10.10.2017, as per Exhibit P9. The film was screened for the jury on 03.10.2017. Hence, when the film was screened, it was an un-certified version and it was mandatory as per the regulations to get a certification before it is included in the Indian Panorama. Specific reference is made to Note (2) of Clause 6.3 in Exhibit P13 to contend that a film selected for screening in the festival, if not certified by CBFC, the Director of Film Festivals has to obtain exemption as per the Cinematography WP(C) No.36600 of 2017 - 4 - Act, 1952. No exemption was sought for by the petitioner and hence the film cannot be permitted to be screened at the festival, is the contention.
5. The question of maintainability is inextricably linked with the contention raised on merits, of the eligibility of the petitioner's film to be screened on the strength of the certification of the CBFC. The issues cannot be considered in isolation and have to be considered and answered together. This Court agrees with the learned CGC that the petitioner cannot invoke the jurisdiction of this Court merely for the reason of the sound track of the movie being in Malayalam and the same having been shot inside Kerala. The residence of the Director-petitioner, or he being informed of the decision of the Ministry by a press release; read at Kerala, also does not confer jurisdiction. The learned counsel appearing for the petitioner, however, would seek to invoke the jurisdiction of this Court based on Ext.P9 certification.
6. Exhibit P9 is a certification obtained under the Cinematography (Certification) Rules, 1983 (hereinafter referred to as 'the Rules'). The Rules are read to assert the jurisdiction before this Court itself. Rule 21 (1) prescribes the submission of the film for WP(C) No.36600 of 2017 - 5 - certification before the CBFC at its Regional Office. The film is certified by an Examining Committee constituted within the State of Kerala and is certified by the Regional Officer at Thiruvananthapuram, as is seen from Exhibit P9. The petitioner's contention is that, the certification as made by the Regional Office at Thiruvananthapuram is the most important aspect the petitioner pleads in the writ petition, which is the cause of action on which the writ petition itself has been filed. Rule 21(2) prescribes the application to be addressed to the Board and delivered to the Regional Officer concerned as per the First Schedule.
7. The First Schedule indicates a Regional Office having been established at Thiruvananthapuram for the State of Kerala and the Union Territory of Lakshadweep. The "place of production" is defined under sub-clause (2) of the Note to the Schedule. The location of the Producers' Association/Council/Chamber with whom the film-title is registered before the commencement of production is the place of production along with the location of the Head Office/Regional Office/Production Office of the film producing Company. The place of production as per the Rules of 1983 is within the State of Kerala and hence the submission of the application under WP(C) No.36600 of 2017 - 6 - Rule 21 for examination to the CBFC before the Regional Officer at Thiruvananthapuram.
8. The question is hence as to whether the certification would be a part of the bundle of facts, which constitute cause of action; any of which if traversed, the petitioner would have to prove for the writ petition to be allowed. The question also is whether Exhibit P9 constituted one of the facts on which the cause of action arise especially in the context of the argument raised by the official respondents that the denial of screening was on account of the movie having not been exempted under Exhibit P13 and the jury having viewed the un-certified version for inclusion in the Indian Panorama.
9. The jurisdictional aspect is urged on the strength of the decisions; an examination of which would put the issue in the proper perspective as to whether the instant petition suffers from that defect. A Division Bench of this Court in Anand Anoop considered the claim of a candidate who appeared for selections to an institute in Maharashtra. The claim raised was with respect to one of the 4 seats set apart for nominees of the Government of India and referred to as the 'central pool seats'. The candidate was before this Court, alleging that the Central Government was intending to finalize a select list WP(C) No.36600 of 2017 - 7 - adopting a criteria contrary to that specified in the prospectus. Jurisdiction was asserted on the facts that the petitioner had applied from Kerala and being a resident of Kerala, his rights are infringed in Kerala. The Division Bench found that the authorities who have to make the allotment are at New Delhi and the institute to which admission was sought was in Maharashtra. The application made from Kerala would not constitute a cause of action and there were none having a nexus to the territorial jurisdiction of this Court, which the applicant would have to prove in order to establish his right to a fair consideration of his candidature for nomination.
10. Nawal Kishore Sharma was a Seaman who, due to his heart condition, was discharged and settled down in the State of Bihar. The claim of his disability compensation reached the High Court of Patna and was answered by the official respondents pointing an alternate entitlement for severance compensation. Finding the cancellation of registration having been sent to the appellant in his native address, the representation having arisen, as also the refusal of the claim received by him; all at Bihar, the writ petition was found to be maintainable. This decision would stand against the respondents. But it is to be noticed the Hon'ble Supreme Court found in favour of WP(C) No.36600 of 2017 - 8 - the petitioner on the question of maintainability on the peculiar facts. Especially since the respondents had acquiesced to the jurisdiction at the first instance and had even complied with an interim order of deposit made by the High Court. It was at the final hearing that the petition was rejected on lack of jurisdiction; which order stood reversed. This does not in any manner help the respondents.
11. Indian Maritime University and Madhavan Nair G. were cases in which a Full Bench of this Court and myself found that the mere receipt of a communication cannot confer jurisdiction in the Court holding sway over such place at which it was received. Bharat Kumar Ghosh employed with the BSF was proceeded against on allegations of theft in Punjab, by a constituted Court in Punjab and issued with orders by his Commandant at Punjab. Merely for reason of his posting in Tripura, the challenge was raised in that High Court which was declined.
12. In the present case, the learned CGC has produced a reply issued by the Ministry of Information and Broadcasting; answering the various queries made by the office of the Assistant Solicitor General of India, to defend the writ petition. The clarifications sought for and the reply are extracted hereunder: WP(C) No.36600 of 2017 - 9 -
Sl. Clarification requested Proposed reply No. 1 How many entries 153 eligible entries were viewed by the were received by the Feature film jury.
Jury for selection?
2 How many selected 21 films were selected by the feature film
and how may jury, 5 by the Internal committee of NFDC,
rejected? 2 were put in waitlist by the jury.
3 The date on which NFDC submitted the finding of the jury to the the Jury submitted Ministry on 16.10.2017.
the panel to the
Ministry?
4 Will there be an order
of communication The selections were announced through
regarding inclusion/ press release on 9th Nov. 2017. rejection?
5 Is it not the stand Festival Director of IFFI-2017 submitted the of the Ministry as selected films in feature films and non-feature well as the films categories of Indian Panorama wherein Director, the Malayalam feature film 'Sexy Durga' was Directorate of included. However, at the time of submission Films that the of application by the petitioner, the film "Sexy subject movie was Durga" was not certified by the Central Board not selected by of Film Certification (CBFC) and therefore the the Jury? jury previewed the uncertified version of the film.
Meanwhile, UA censor certificate was issued to the film with changed title and other deletions as "S Durga" by CBFC, Thiruvananthapuram on 10.10.2017.
The producer of the film intends to exhibit the film with uncertified version of the film with the title "Sexy Durga". As per Section SE of the Cinematograph Act, 1952, the film in respect of which certificate has been granted, cannot be exhibited in a form other than the one in which it was certified. Under Section 7 of the Act, the same is a cognizable offence.
WP(C) No.36600 of 2017 - 10 -
13. Hence, out of the 153 films, 28 were selected; 21 by the Jury, 5 by the National Film Development Corporation [NFDC] and two wait listed. The Jury's findings were sent to the Ministry on 16.10.2017. The selections were announced through the press release on 09.11.2017. The Festival Director of IFFI-2017 is said to have submitted the selected films, wherein the petitioner's film was included despite it is said to have been wait-listed along with another. It is emphasized that the film did not have the certificate of CBFC at the time when it was viewed by the Jury. Despite inclusion for screening at the festival an exemption has to be obtained from the Ministry. This is the objection to the presentation. A "U/A" censor certificate was issued to the film with changed title and excisions as directed in Exhibit P18, on 10.10.2017. The film cannot be exhibited in any other manner than that certified, is the answer to the query as to whether the Ministry and the Directorate of Films considered the film to be not selected by the Jury. If an un-certified version is presented at the Film Festival, then it would be a cognizable offense under the Act of 1952, is the further argument.
14. It was also argued that the un-certified version having been viewed by the Jury and selected for entry to the Film Festival, WP(C) No.36600 of 2017 - 11 - there should have been exemption obtained under the Act of 1952. Note (2) of Clause 6.3 of Exhibit P13 specifically speaks of the Director of Film Festivals obliged to take necessary action for seeking exemption under the Act of 1952. Hence, the petitioner or the Jury could not have done anything on that count. When the Jury selects a film not certified by the CBFC, then it is for the Director to seek an exemption. This Court is not informed of whether any such action was taken by the Director. However, the fact remains that immediately after the screening of the movie on 10.10.2017, the petitioner received a certification from the CBFC, as seen at Exhibit P9.
15. The certification at Exhibit P9, hence, assumes importance, insofar as the claim of the petitioner for permission to have the film screened at the Film Festival, now going on at Goa. The certification by the CBFC is the essential part of the cause of action of the petitioner; which enables him to claim a screening of the film at the Film Festival. The movie has been selected by the Jury; but was declined presentation only for reason of the Jury having viewed a version which was not certified. It is not the claim of the petitioner that he wants to present the un-certified version. It is also a given fact, going by Exhibit P18, that the visuals of the movie were not changed, WP(C) No.36600 of 2017 - 12 - excised or modified. The movie remained un-touched but for excision of certain objectionable words in the script as spoken of by the characters and the modification in the name. The certified version is what is sought to be presented in the Film Festival.
16. The Ministry, as is seen from the answers to the queries, is worried about the screening of an un-certified version. Definitely that is not permissible. The Jury has included the film for screening in the festival; after viewing the un-certified version itself. Normally there would have arisen a need for an exemption from the Ministry, but for the subsequent certification of the film by the CBFC. When even the un-certified version was found to be worthy by the Jury for presentation there can be no objection raised as to the certified version being screened.
17. At the risk of repetition, it is to be noticed that the objections, as seen from the Ministry's reply extracted herein above, refers to the screening of the un-certified version being a cognizable offence under Section 7 of the Act. There is no question of screening the un-certified version and only the certified version can be screened. This Court is of the opinion that Exhibit P9 is the most crucial fact; in the bundle of facts, which the petitioner has placed WP(C) No.36600 of 2017 - 13 - before this Court to enable the screening of the film in the festival; the un-certified version of which was viewed by the Jury and included. If the certification was challenged, then the petitioner would be obliged to prove the certification or otherwise, an exemption. Hence, if traversed, the certification had to be proved by the petitioner for obtaining the relief prayed for. No objection having been raised to the certification, the cause of action is established and the relief has to necessarily follow. There shall be a direction to the official respondents to screen the certified version of the movie of the petitioner, which is the subject matter of the writ petition, at the 48th International Film Festival of India, now carried on in Goa.
The writ petition would stand allowed. There shall be no order as to costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]