Kerala High Court

Jose Kuruvinakkunnel @ ... vs Union Of India on 28 June, 2022

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR.JUSTICE V.G.ARUN
  TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
                 WP(C) NO. 20920 OF 2022
PETITIONER/S:

         JOSE KURUVINAKKUNNEL @ KURUVINAKKUNNEL
         KURUVACHAN,
         AGED 70 YEARS
         KURUVINAKKUNNEL, MLAPARAMBIL,
         EDAMATTOM KARA, POOVARANI P.O.,
         PALA, KOTTAYAM DISTRICT.
         PIN - 686577
         BY ADVS.
         ROSHEN.D.ALEXANDER
         HARIMOHAN
         TINA ALEX THOMAS

RESPONDENT/S:

   1     UNION OF INDIA,
         REPRESENTED BY ITS SECRETARY,
         MINISTRY OF INFORMATION AND BROADCASTING
         GOVERNMENT OF INDIA, SHASTRI BHAWAN,
         NEW DELHI., PIN - 110011
   2     CENTRAL BOARD OF FILM CERTIFICATION (CBFC)
         A STATUTORY BODY FORMED UNDER THE
         MINISTRY OF INFORMATION AND BROADCASTING,
         FILMS DIVISION COMPLEX, PHASE- I BUILDING, 9TH
         FLOOR, DR. G. DESHMUKH MARG, MUMBAI- 400026
         REPRESENTED BY ITS CHAIRMAN., PIN - 400026
   3     CHAIRMAN
         CENTRAL BOARD OF FILM CERTIFICATION (CBFC),
         MINISTRY OF INFORMATION AND BROADCASTING,
         FILMS DIVISION COMPLEX, PHASE- I BUILDING,
         9THFLOOR, DR. G. DESHMUKH MARG, MUMBAI., PIN -
         400026
   4     CHIEF EXECUTIVE OFFICER
         CENTRAL BOARD OF FILM CERTIFICATION (CBFC),
         MINISTRY OF INFORMATION AND BROADCASTING
         FILMS DIVISION COMPLEX, PHASE- I BUILDING, 9TH
         FLOOR, DR. G. DESHMUKH MARG, MUMBAI- 400026. PIN
         - 400026
   5     REGIONAL OFFICER,
         REGIONAL OFFICE,
 W.P.(C) No.20920 of 2022

                                    -2-


            CENTRAL BOARD OF FILM CERTIFICATION (CBFC).
            A STATUTORY BODY UNDER MINISTRY OF INFORMATION
            AND BROADCASTING
            1ST FLOOR, CHITRANJALI STUDIO COMPLEX,
            TIRUVALLUM, THIRUVANANTHAPURAM., PIN - 695027
     6      JINU VARGHESE ABRAHAM,
            AGED 37 YEARS
            S/O. V.V. ABRAHAM,
            FLAT NO.12C, SFS KINGDOM APARTMENTS,
            NEAR CHOICE SCHOOL, THRIPUNITHURA,
            ERNAKULAM., PIN - 682301
     7      LISTIN STEPHEN,
            AGED 34 YEARS
            S/O. STEPHEN
            RESIDING AT MUDIYILKUNNEL HOUSE,
            UZHAVOOR - 686 634,
            HAVING OFFICE AT DOOR NO.2704,
            KOLAPARAMBIL BUILDING, SOUTH JANATHA ROAD,
            PALARIVATTOM, ERNAKULAM.., PIN - 682025
     8      PRITHVIRAJ PRODUCTIONS LLP,
            FLAT NO.4, ASSET CASA GRANDE,
            MALIEKAL ROAD, THEVARA,
            ERNAKULAM., PIN - 682013
     9      SHAJI KAILAS
            AGED 56 YEARS
            S/O. SIVARAMAN NAIR,
            THEJAS, HOUSE NO. 69, KAIRALI NAGAR,
            KURAVANKONAM, KOWDIYAR,
            THIRUANANTHAPURAM., PIN - 695003


OTHER PRESENT:

                ASGI S. MANU; CGC DAYASINDHU SREEHARI N.S;GP
                P.S.APPU ; SPL.PP. SHAIJAN C. GEORGE


         THIS    WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION        ON   28.06.2022,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.20920 of 2022

                                 -3-



                           JUDGMENT

Dated this the 28th day of June, 2022

The petitioner, a planter by profession, is

aggrieved by the proposed theatre release of a

Malayalam feature film by name "Kaduva". The

reason for his grievance is that the protagonist

'Kaduvakunnel Kuruvachan', is portrayal of the

petitioner and the story itself is an adaptation

of the petitioner's life. According to the

petitioner, the movie contains embellishments and

additions to real life incidents, some of which

are per se defamatory to him and his family

members. The petitioner therefore filed a civil

suit and obtained an interim order of injunction.

Later the injunction application was dismissed

and appeal filed against that order met the same

fate. On coming to know that the movie has been

presented for examination and certification under W.P.(C) No.20920 of 2022

Sections 4 and 5A of the Cinematograph Act, 1952

('the Act' for short), the petitioner submitted

an objection against grant of certification to

the movie under Section 5A. Thereupon, the fifth

respondent issued an email to the petitioner on

23.06.2022, stating that, after going through

petitioner's objection, the authority is of

opinion that a personal hearing can be given as

requested. Accordingly, the petitioner was

requested to appear for personal hearing on

27.06.2022 at 10.00 a.m. The petitioner was also

required to apprise the authority about the

latest legal position/status/orders/judgments and

to provide all documents pertaining to the same.

The petitioner sent Ext.P7 reply to the fifth

respondent pointing out his inability to attend

the personal hearing on 27.06.2022, as he is

suffering from chronic kidney disease and is

advised not to travel. The petitioner also

alerted the fifth respondent that, being an W.P.(C) No.20920 of 2022

authority under the Cinematograph Act, it has a

statutory obligation to decide the petitioner's

objection, uninfluenced by the findings of the

civil court. This writ petition is filed voicing

an apprehension that the fifth respondent may not

consider the petitioner's request for postponing

the hearing and even if hearing is conducted, no

purpose will be served, if the decision is taken

based on the order/judgment of the civil courts.

3. Adv. Roshan.D.Alexander, learned Counsel

for the petitioner, referred to Section 4 of the

Act, which provides for examination of films,

Section 5A dealing with Certification and 5B,

laying down the principles for guidance in

certifying films. Attention is also drawn to Rule

22 (13) of the Cinematograph (Certification)

Rules, 1983 ('the Rules' for short) and S.O. 836

(E), dated 06.12,1991, prescribing guidelines for

certification of films for public exhibition.

Reliance is placed on the exposition on the right W.P.(C) No.20920 of 2022

to privacy in K.S. Puttaswamy & anr v Union of

India and others [(2017) 10 SCC 1], to contend

that privacy is sacrosanct and the State is

obliged to adopt suitable measures for protecting

individual privacy. It is contended that the

authorities under the Cinematograph Act are bound

to consider petitioner's objection in accordance

with the guidelines, keeping in mind their duty

to safeguard individual privacy.

4. Learned CGC submitted that the fifth

respondent is willing to consider the

petitioner's objection. The petitioner having

failed to appear on 27.06.2022, the decision on

his objection is deferred. It is submitted that,

if the petitioner is indisposed, the fifth

respondent is even willing to hear him through

online mode.

5. In the light of the submission that the

fifth respondent is willing to hear the W.P.(C) No.20920 of 2022

petitioner through video conferencing mode, all

that remains to be considered is the petitioner's

contention that the hearing should be done

uninfluenced by the orders of the civil court.

For considering this contention, it is essential

to have a scrutiny of the statutory provisions.

Section 4 of the Act deals with examination of

films for the purpose of certification, based on

the application filed by the person desirous of

exhibiting the film. Section 5A provides for

certification after examination. The procedure

for examination and certification is provided

under Rules 22 and 23 the Rules. As per Rule 22,

examination of the film is to be done in secrecy

by a duly constituted examining committee.

Section 5B lays down the guidelines to be

followed in certifying films. Being contextually

relevant, Section 5B is extracted hereunder;

"5-B. Principles for guidance in certifying films.--(1) A film shall not be W.P.(C) No.20920 of 2022

certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of 22[the sovereignty and integrity of India] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.

(2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition."

Guideline No.2.(xviii) issued under SRO.No.836(E)

dated 6.12.1991 enjoins the Board of Film

Certification to ensure that, 'visuals or words

involving defamation of an individual or a body

of individuals, or contempt of court are not

presented.

6. From a conjoint reading of the above

provisions, it is evident that the film W.P.(C) No.20920 of 2022

certification authorities are statutorily bound

to take an independent decision with regard to

the certification of films. Being so, having

decided to hear the petitioner, the fifth

respondent is also bound to take an independent

decision, de hors the findings of the civil

court. Learned Counsel for the petitioner

submitted that the petitioner is willing to

attend the hearing through video conferencing

mode on 04.07.2022. Learned CGC submitted that

the fifth respondent will hear the petitioner on

that day.

7. In the nature of the order being passed,

notice to the party respondents is dispensed

with.

The writ petition is disposed of as under;

The 5th respondent shall hear the petitioner

through video conferencing mode on 04.07.2022.

The time of hearing, preferably in the morning, W.P.(C) No.20920 of 2022

shall be intimated to the petitioner in advance.

The process of certification shall commence after

the hearing is concluded and an appropriate

decision taken on the petitioner's objection.

Irrespective of such decision, the application

for certification of the film 'Kaduva' shall be

considered and appropriate decision taken, in

accordance with the procedure prescribed under

the Act and Rules.

Sd/-

V.G.ARUN JUDGE scl W.P.(C) No.20920 of 2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DTD. 09.12.2021 IN I.A NO.1/2021 IN O.S. NO. 206/2021 ON THE FILES OF THE SUBORDINATE JUDGE'S COURT, ERNAKULAM.

Exhibit P2 TRUE COPY COMPLAINT DTD. 28.03.2022 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.

Exhibit P3 TRUE COPY OF S.O. 836(E), DTD.

06.12.1991 PRESCRIBING GUIDELINES FOR CERTIFICATION OF FILMS FOR PUBLIC EXHIBITION.

Exhibit P4 TRUE COPY OF THE ORDER DTD. 06.04.2022 IN IA NO. 1/2021 IN O.S NO. 206/2021 ON THE FILES OF THE SUB COURT, ERNAKULAM.

Exhibit P5 TRUE COPY OF THE JUDGMENT DTD.

20.06.2022 ON THE FILES OF THE ADDITIONAL DISTRICT JUDGE-VI, ERNAKULAM.

Exhibit P6 TRUE COPY OF REPLY E-MAIL DTD.

23.06.2022 FORWARDED BY THE PETITIONER TO HIS COUNSEL.

Exhibit P7 TRUE COPY OF REPLY DTD. 24.06.2022 SENT BY THE PETITIONER TO THE 5TH RESPONDENT THROUGH EMAIL.