Press Release: 28 July, 2006

Filmmakers win legal battle against censor requirement at National Film Awards

In May 2006 when new eligibility criteria for the National Film Awards (NFA) were announced, documentary filmmakers (incongruously classified as “Non-Feature” filmmakers even though some make full length films) were shocked to find that films made on digital or video format could no longer compete for an NFA unless these were released on a film format.

Two years ago filmmakers under the banner of Vikalp: Films for Freedom had demanded that digital format and video films should be allowed to compete for the 51st National Film Awards without having to be converted to celluloid first. Under pressure, the government changed this rule but did not accept the other demand made by Vikalp which was to do away with a rule that makes censor certificates mandatory for all films entered for the NFA.

This year for the 53rd NFA the government mysteriously backtracked even on the format issue and once again debarred video and digital format films from the NFA. In response documentary filmmakers Gaurav Jani, Anand Patwardhan and Simantini Dhuru, supported by Vikalp, Docuwallas and others, filed a case in the Bombay High Courtasking that:
(a) digital/ video films should compete for the NFA in their original format, and
(b) the censor certificate requirement be removed as a pre-condition for the NFA.

During the pendency of this case the government conceded demand (a) by allowing the digital/video format films eligibility at the 53rd NFA. On demand (b) the government refused to give in, insisting that the censor certificate requirement was a pre-requisite for the NFA.

The petitioners pointed out that film festivals like the government sponsored Mumbai International Film Festival (MIFF) had run for 14 years without a censor certificate requirement and the government had recently adopted a policy document which enabled the government to exempt more such film festivals from the purview of censorship. It was discriminatory to insist that a small government appointed jury at the NFA could not view uncensored films. After all the jury’s job was to determine the best film in the country from a technical, aesthetic and social perspective. They should be allowed to view the film as originally intended by their creators, before the censors had their say.

After listening to arguments, Justice Rebello and Justice Tahilramani of the Bombay High Court upheld the petitioners arguments and ordered that the Censor requirement at the NFA be struck down. Advocate P.A Sebastian appeared for the petitioners and advocates Y.R.Mishra and Mr.M.R.Prajapati for the defendants.

Gaurav Jani, Anand Patwardhan, Simantini Dhuru 

The High Court Order

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1448 OF 2006

 

1. Gaurav Ashwin Jani, )
of Bombay, Indian Inhabitant, )
residing at 63 – J Gitanjali )
Society, Raheja Township, )
Malad – East, Mumbai-97. )

2. Anand Patwardhan, of )
Bombay, Indian Inhabitant, )
residing at 22, Lokmanya )
Tilak Colony Marg No.2, )
Dadar (East), )
Mumbai-4000 014. )

3. Simantini Dhuruv, of )
Bombay, Indian Inhabitant, )
residing at 3, Navalkar )
Building, 29-B, Opera )
House, Bombay. ) ..PETITIONERS.

Versus

1. The Director, )
Directorate of Film Festivals )
(NFA) Ministry of Information )
and Broadcasting, Siri Fort )
Auditorium Complex, New )
August Kranti Marg, New )
Delhi 1100 49. )

2. The Ministry of Information )
and Broadcasting, the )
Government of India, )
New Delhi. )

3. Union of India, )
through Law Officer, )
Legal Department, )
Ayakar Bhavan, New )
Marine Line, )
Mumbai-400 032. ) ..RESPONDENTS.

….
Mr.P.A.Sebastian,Advocate for the Petitioners.
Mr.Y.R.Mishra with Mr.N.R.Prajapati, Advocates

for the Respondents.
….

CORAM : F.I.REBELLO AND SMT.V.K.TAHILRAMANI,JJ.

DATED : JULY 27, 2006.

 

JUDGMENT (PER F.I.REBELLO,J.)

 

1. The petitioners herein have approached this Court challenging Regulations 10(d) and 10(e)
of the 53rd National Film Awards Regulations as violative of Article 14 and Article 19(1)(a) of the Constitution of India. Consequential relief by way of mandamus have also been prayed
for. The two Regulations which are subject matter of this Petition reads as under :

 

“ELIGIBILITY :

10(d)

Films made in any Indian language,shot on 16 mm, 35 mm or in a wider gauge or
digital format but released on a film format and certified by the Central Board of Film Certification as a feature film or featurette are eligible for feature film section. In the case of award for Best Children’s Film only such films shall be eligible as have been certified by the
Central Board of Film Certification as children’s films. The phrase ‘any Indian language’ would mean all official languages of the State/Union Territories of the Indian Union, all other Indian languages included in Schedule VIII of the Constitution of India and such other languages and dialects that may be permitted by the Government of India from time to time. (Emphasis supplied)

 

10(e)

Films made in any Indian language, shot on 16 mm, 35 mm or in a wider gauge or
digital format but released on film format and certified by the Central Board of Film
Certification as a Documentary/Newsreel/Non-Fiction/Short-Fiction are eligible for non-feature film section. The phrase ‘any Indian language’ would mean all official languages of the State/Union Territories of the Indian Union, all other Indian languages included in Schedule VIII
of the Constitution of India and such other languages and dialects that may be permitted by the Government of India from time to time.” (emphasis supplied)

 

2. Some of the averments in the Petition are as under : the first petitioner who is a Documentary Film Maker has recently made a documentary called “Riding solo to the top of the world”. This documentary has won the Best Documentary Award – National Category and also National Critics Award at Mumbai International Film Festival organised by the
Government of India in February, 2006. The second petitioner is a well known documentary
filmmaker whose documentaries are internationally acclaimed for the democratic and secular
message they convey. The petitioner No.2 points out that his several films have been selected
as the best documentary of the year concerned and have also been awarded the President’s
gold medal. The third petitioner is also a documentary filmmaker of repute having won a
Filmfare Award in India and also the Earthvision award in Japan.
3. Respondents, it is contended, organise National Film Awards festivals (NFA) from time to time with a view to encourage the production of films of aesthetic and technical excellence
and social relevance contributing to the understanding and appreciation of cultures of different
regions of the country in cinematic form, thereby also promoting integration and unity of the Nation.

The last date for the entry of films for the 53rd NFA was 19th May, 2006. Regulation 10(e) which is already been reproduced, requires that films made in any Indian language, shot on 16mm, 35mm or in a wider gauge or digital format but released on film format and certified by the Censor Board of Films Certification as a documentary / Newsreel / Non-Fiction / Short Fiction are eligible for non – feature film section. The documentary of petitioner No.1 was shot on digital format and is also released on the digital format. This makes a documentary ineligible for entry to the 53rd NFA. If the film is to be converted from digital format to a film (celluloid) format of 16 mm or 35 mm itself will cost the first petitioner an amount of approximately Rupees 25 Lakhs. The petitioner does not have that much amount at present, and which deprives him of an opportunity to compete for the 53rd NFA. It is pointed out that in the beginning all films were shot on celluloid. By 2004, especially for documentary and low-budget filmmakers making films on celluloid was becoming technologically outdated and unnecessarily expensive. On account of that, representation was made to the Government of India, which accepted the representation and permitted the films made in any Indian language shot on 16 mm, 35 mm or in a wide gauge, or digital format but released on either film format or Betacam-SP (broadcast quality format).

 

After the Petition was filed, on May 19, 2006 a statement was made on behalf of the Respondents that the issue of permitting films in digital format was under consideration. TheRespondents since then have made eligible the documentary films on digital formats and as such the challenge on that count no longer survives.

4. The only challenge which now survives is the issue as to whether the petitioners have to have the requirement of the Censorship Certificate for entering their films for the NFA. We may gainfully refer to the provisions of Section 9 of the Cinematography Act, 1952, which hereinafter shall be referred as the Act. The said Section reads as under :

 

9. Power to exempt.- “The Central Government may, by order in writing exempt, subject to such conditions and restrictions, if any, as it may impose, the exhibition of any film or class of films from any of the provisions of this Part or of any rules made thereunder.”

In other words there is power conferred in Central Government to exempt a class of films from any of the provisions of Part-II. Part-II deals with the requirement of certification of films forpublic exhibition.
5. The petitioners before us have averred and produced material to indicate that this power
under Section 9 of the Act, has been exercised by the Government of India in the matter of film

festivals, where films both international and

national are exhibited. Our attention has been

invited to the entry form for MIFF 2006. The

relevant clause is Clause 15 which reads as under

: 15. Censorship will not be applicable to

ANY films/videos entered in the festival.”
This is pursuant to regulations made by

various festival authorities for according

exemption from the process of certification for

films for exhibition in their festivals. A

Committee was formed which submitted its report to

the Government on 16.11.2005. Based on that

guidelines have been framed and notified. Clause

2 and 3 reads as under :-
“2. After detailed deliberations, the

Committee submitted its report to the

Government on 16.11.2005 with certain

recommendations which have since been

accepted. The following guidelines are

Page[8].

 

 

notified with immediate effect :
(i) In those festivals which are

non-commercial in nature and viewership is

confined to delegates (definition of

delegates would include filmmakers, media

students, critics, film theorists, film

lovers and all those associated with the

production and business of film and members

of the press duly registered with the

festival authorities as well as its jury),

the Government would grant exemption for

both Indian and foreign films. However,

the exemption would be subject to

fulfilment of the conditions prescribed in

para 3 below.
(ii) The request for exemption from the

process of certification will be disposed

of within 15 days from the date of receipt

of the proposal complete in all respects

from the Director of the Festival.
(iii) In exceptional cases, the Ministry of

I & B will have the powers to reject, for

.Page[9].

 

 

reasons to be recorded in writing, the

request for exemption to any film(s)) if,

in its opinion, it would impinge on the

security or integrity of the country or

affect law and order or affect relations

with other countries.
(iv) In case of rejection, the Director of

the Festival shall have the option to

appeal to the next higher authority in the

Ministry of I & B i.e. the Additional

Secretary/Secretary, as the case may be,

who shall dispose of the appeal within 15

days from the date of receipt in the

Ministry.
3. In order to consider the request for

exemption from the process of certification

for films to be screened in festivals, the

following documents shall be sent by the

Director of the Festival addressed to Joint

Secretary (Films) along with the request

for exemption :
(i) List of films to be screened in the

.Page[10].

 

 

festival.
(ii) Synopsis of each of the films
(iii) Composition of the Preview Committee,

which should comprise persons who are

related to the film industry or are

critics/writers connected with films.
(iv) Report of the Preview Committee

certifying that the films have been

recommended for exhibition at the festival.
(v) Certificate from the Director of the

Festival to the effect that the screening

of such films would be limited to delegates

(definition of delegates would include

film-makers, media students, critics, film

theorists, film lovers and all those

associated with the production and business

of film and members of the press duly

registered with the festival authorities as

well as its jury.)
(vi) Certificate from the Director of the

.Page[11].

 

 

Festival to the effect that the festival is

non-commercial in nature.”
6. Under the Regulations framed by the 53rd

NFA the films produced by students of a film

institute running diploma/degree courses and which

are recognised by the Government of India are

eligible to enter without certification by the

Central Board of Film Certification, provided a

specific certificate from the Head of the

organisation to the effect that the film has been

produced by the producers within the eligibility

period, is sent alongwith entry form. Similarly,

entries made by Doordarshan for the non feature

film section are eligible to enter without Film

Certification. The said Regulations 10(f) and

10(g) reads as under :
ELIGIBILITY
10(f). A film produced by a film

institute running diploma/degree courses

run by it which are recognized by the

Government of India shall be eligible even

without certification by the Central Board
.Page[12].

 

 

for Film Certification, provided a specific

certificate from the Head of the

organization to the effect that the film

has been produced within the eligibility

period, is sent along with the entry form.
10(g). Entries made by Doordarshan for the

non feature film section shall be eligible

without certification by Central Board of

Film Certification provided that a specific

certificate, from Director General,

Doordarshan to the effect that the non

feature film has been produced within the

eligibility period, is sent along with the

entry form.”
7. It is the case of the petitioners,

therefore, that the films produced by them, in the

case of national film festival competition are

eligible to be entered without the requirement of

censorship certificate. It is pointed out that

viewing of films screened at Festivals is limited

to a selected audience like film critics and film

theorists. The Committee noted that at film

festivals, the viewership is limited to delegates

 

Page.[13].

 

 

who includes film makers, media students, critics,

film theorists, film lovers and all those

associated with the production and business of

film. It is therefore submitted that it will be

totally arbitrary on the part of the Respondents

of imposing a condition or a restriction that only

films which have been certified by the Central

Board of Film Certification between 1st January,

2005 and 31st December, 2005 can be entered for

NFA. This, it is submitted has neither any

rational nor can it be said that films entered in

the film festivals constitute a class by

themselves as distinct from the films which can be

entered for NFA as the producers can enter the

same films both for the National Film Festivals as

also NFA. The failure to grant exemption for

N.F.A. is discriminatory, and hence violative of

Article 14 of the Constitution of India. The

restriction, it is also submitted, amounts to an

unreasonable restriction on the petitioners right

of freedom of speech and expression and on that

count also such a condition ought to be held to be

unreasonable. The petitioners submit that the

Respondents must apply the same conditions for

entry to NFA is concerned which conditions are

.Page[14].

 

 

applicable in the case of the international film

festivals. Apart from that it is pointed out that

when the film is entered in NFA it is to be viewed

only by the judges whereas for a film festival it

is viewed by a large number of delegates. The

judges consist of a limited panel. In these

circumstances, insisting on the petitioners to

have a censorship certificate is unreasonable

and/or arbitrary. It is pointed out that after

the film is selected for the award, it is open to

the Respondents before the film is screened to the

public to insist on a certificate under Part-II of

the Act.
8. On behalf of the Respondents, Manoj

Srivastava, Deputy Director, Directorate of Film

Festivals has filed an affidavit, opposing grant

of the relief. It is firstly submitted that the

decision and guidelines are reasoned policy of the

Government of India and in these circumstances

this Court in the exercise of its extraordinary

jurisdiction should not interfere with the said

policy guidelines. For that purpose reliance is

placed on the judgment of the Apex Court in

Gyanprakash Vs. Union of India (1997) 11 SCC 670.

.Page[15].

 

 

The Supreme Court held, that the Supreme Court or

the High Courts should not interfere in the policy

matter unless such policy violates the fundamental

right of the petitioners. Reference is also made

to the judgment in Balco Employees Union Vs.

Union of India. It is not necessary to refer to

other judgments. The policy is then set out as

under :
“That the policy framework relates to, and

specifically pertains to, requests made by

‘Festival Directors’ of various “FESTIVAL

AUTHORITIES” in India who organise film

Festivals for a specific period of days,

wherein they intend screening Indian and

foreign films that do not have

certification in India. However for public

screening in India, all necessarily require

certification from the Central Board of

Film Certification.”
The Films which are exempted and exhibited

at film festivals are only screened to registered

delegates. Reference is then made that juries are

set up with the objective and/or purpose for

.Page[16].

 

 

selecting technically and aesthetically good films

as defined in the Gazetted Regulations of the

scheme of ‘National Film Awards’, the Indian

Panorama etc. . Once the juries finally select

the films, The President of India awards them and

these films are later screened for the ‘general

public’ at large. The Indian Panorama films,

after selection by a jury are also being sent to

various international film festivals. For all the

aforesaid reasons, it is submitted that, this

Petition ought to be dismissed.
9. At this stage, we may clarify that the

Respondents seem to be confused on the issue of

films for the Indian Panorama. As explained on

behalf of the petitioners at the bar and which has

not being denied on behalf of the Respondents,

that this has nothing to do with the films which

did not have the certificate under Part-II. The

films in the Indian Panorama are the films which

have normally obtained certificates under Part-II.

The reference to Indian Panorama discloses total

non application of mind on the part of the

Respondents, whilst filing their reply.

Page[17].

 

 

10. The limited issue therefore before us is

whether the Respondents’ policy of restricting the

participation to only those films which have been

certified by the Censor Board is legal, valid

and/or is arbitrary, unreasonable and violative of

the petitioners’ right to freedom of speech and

expression. The expression ‘freedom of speech’ in

our opinion is wide enough and connotes any form

of expression including by making of films. The

right of freedom of speech is guaranteed by the

Constitution of India. Is the requirement of

certificate from the Censor Board of Films for

entry to the 53rd NFA amounts to violation of the

right guaranteed under Article 19(1)(a) of the

Constitution of India ?. Secondly, would

exempting screening of films at International or

National film festivals without a certificate from

the Board as also exempting films made by film

institutes and non-feature films made by

Doordarshan at 53rd NFA, would amount to

discrimination, being unreasonable and/or

arbitrary and consequently violative of Article 14

of the Constitution of India ?
11. We shall firstly deal with the contention

Page[18].

 

 

urged by the petitioners that Article 14 is

violated. We have already adverted to the fact

that there is power in the Central Government to

exempt the films from the purview of Part-II. The

Government of India on representation by the film

industry has so done for film festivals screening

international and national films. In other words,

the Respondents themselves are of the opinion that

films screened at a film festival constitutes a

class by themselves and the films can be exhibited

without a censorship certificate. The audience at

such festivals are delegates and as pointed

earlier not necessarily members of jury. Insofar

as NFA 2006 is concerned, two categories of films

covered by regulation 10(f) & 10(g) can enter

their films without certificate. These films will

be viewed by the same jury as other films entered

by the petitioners and others. Whilst films

entered by categories 10(f) & 10(g) will be judged

by the jury without a certificate, the films made

by the petitioners would require a certificate

from the Censor Board. The exemption granted to

films falling in regulation 10(f) and 10(g) of NFA

Regulations and exemption to films from

Certificate for MIFF 2006 and insistence on
.Page[19].

 

 

certification for films by other participants to

NFA is clearly discriminatory being arbitrary.

Would not this insistence by the Respondents be

arbitrary and/or discriminatory in the absence of

any explanation. It was for the Respondents,

after the petitioners have discharged their burden

to show that such classification is reasonable and

has nexus with the object, which is selecting the

best films for awards. The Respondents ought to

have discharged this burden, by showing that the

class which is exempted, amounts to a different

class having characteristics different from the

class which is protected and further said

classification has a reasonable nexus with the

object. Classification is merely a judicial

formula for determining whether the exemption

action is arbitrary. In the instant case the

object of selecting the best films by the jury is

defeated, if some films can be judged without

certificates and others only after a certificate.

 

 

12. In our opinion if a jury has to examine and

give an award to the film, it must be in a

position to view it, in its entirety by
.Page[20].

 

 

considering all features, which go into the making

of films and not a revised version which a

censorship board may do by imposing cuts in the

films. The Respondents themselves based on

representation by the members of the film

industry, took a decision that certificate of

Censor Board is not required for Film Festivals as

set out in the policy decision as also for film by

a class of persons for NFA-2006. No explanation

has come why the other films are not allowed to be

entered without a certificate of the Censor Board.

This would be clearly amount to practicing

discrimination. The law on the subject of

classification has been explained and reiterated

in Shashikant Laxman Kale & Anr. Vs. Union of
Shashikant Laxman Kale & Anr. Vs. Union of India, reported in (1990) 4 SCC 360.
The law is

also clear that equals cannot be treated as

unequals as such treatment would be violative of

Article 14 of the Constitution of India. What is

the difference between the films of producers

excluded from exemption and those who have been

excluded. In matter of Art, State Institutions

like Doordarshan or film schools can have no

special protection. The historical truth if one

may state is that Art in such institutions rarely

Page.[21].

 

 

blooms it mostly wilts. Who makes the film is

immaterial. A jury has to view and judge the

films through the eyes of the artist and what he

seeks to convey to the audience and as made in its

original form. The source from where it is

produced therefore becomes irrelevant. The film

is to be judged by only a select jury and is not

being viewed by the public at large. Why should

the jury then have to view through the eyes of the

Censor Board, when the same jury in case of films

by two other producers can view it without a

certificate. Any other view of the matter would

result in the jury not being able to examine the

film from the perspective of the film maker and

the concept based on which he has made it. The

selection procedure for the award in such

circumstances would be treating unequals as

equals. This is clearly arbitrary and violative

of Article 14 of the Constitution of India. Our

Constitution makers, when they enacted Part III of

the Constitution foresaw freedoms expanding and

that art cannot be repressed, except by reasonable

restrictions. Once the respondents themselves

have accorded exemptions from certificates for

film festivals and these exemptions can apply to

.Page[22].

 

 

the very film, if the petitioners screen them at

film festivals where a larger audience can view

them, we find the action of the Respondents in

refusing to exempt or exercise their power under

Section 9, insofar as film belonging to a class of

producers at NFA, as being totally arbitrary being

discriminatory.
13. In this view of the matter, therefore, the

petition insofar as the challenge under Article 14

is concerned to Regulations 10(d) & 10(e) will

have to be allowed. We, however, make it clear

that the organisers can subject the films entered

to the same tests as laid down by the Respondents

in Clause-8 of Eligibility and Regulations for

MIFF – 2006.
14. The second issue whether the restriction as

imposed can be said to be violative of Article

19(1)(a) of the Constitution of India. In our

opinion, considering that we have upheld the

challenge under Article 14, it is not necessary

for us, at this stage, to deal with the challenge

under Article 19(1)(a) of the Constitution of

India.

.Page[23].

 

 

15. For all the aforesaid reasons, Rule is made

absolute in the following terms : the words ‘

certified by the Central Board of Film

Certification’ ’ in Regulations 10(d) & 10(e), are

held to be violative of Article 14 and

consequently void. Regulations 10(d) and 10(e),

shall be read without those words. Rule is made

also absolute in terms of Prayer Clause (b).
16. The films of the petitioners and other

similarly situated, should be allowed to be

entered by the Respondents for N.F.A.2006 in

digital form and without a certificate from the

Central Board of Film Certification. It will be

open to the Respondents to impose conditions like

Regulation 8 of MIFF-2006. In the circumstances

of the case, there shall be no order as to costs.

 

[F.I.REBELLO,J.]

 

[SMT.V.K.TAHILRAMANI,J.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Press Release: 28 July, 2006

Filmmakers win legal battle against censor requirement at National Film Awards

In May 2006 when new eligibility criteria for the National Film Awards (NFA) were announced, documentary filmmakers (incongruously classified as “Non-Feature” filmmakers even though some make full length films) were shocked to find that films made on digital or video format could no longer compete for an NFA unless these were released on a film format.

Two years ago filmmakers under the banner of Vikalp: Films for Freedom had demanded that digital format and video films should be allowed to compete for the 51st National Film Awards without having to be converted to celluloid first. Under pressure, the government changed this rule but did not accept the other demand made by Vikalp which was to do away with a rule that makes censor certificates mandatory for all films entered for the NFA.

This year for the 53rd NFA the government mysteriously backtracked even on the format issue and once again debarred video and digital format films from the NFA. In response documentary filmmakers Gaurav Jani, Anand Patwardhan and Simantini Dhuru, supported by Vikalp, Docuwallas and others, filed a case in the Bombay High Courtasking that:
(a) digital/ video films should compete for the NFA in their original format, and
(b) the censor certificate requirement be removed as a pre-condition for the NFA.

During the pendency of this case the government conceded demand (a) by allowing the digital/video format films eligibility at the 53rd NFA. On demand (b) the government refused to give in, insisting that the censor certificate requirement was a pre-requisite for the NFA.

The petitioners pointed out that film festivals like the government sponsored Mumbai International Film Festival (MIFF) had run for 14 years without a censor certificate requirement and the government had recently adopted a policy document which enabled the government to exempt more such film festivals from the purview of censorship. It was discriminatory to insist that a small government appointed jury at the NFA could not view uncensored films. After all the jury’s job was to determine the best film in the country from a technical, aesthetic and social perspective. They should be allowed to view the film as originally intended by their creators, before the censors had their say.

After listening to arguments, Justice Rebello and Justice Tahilramani of the Bombay High Court upheld the petitioners arguments and ordered that the Censor requirement at the NFA be struck down. Advocate P.A Sebastian appeared for the petitioners and advocates Y.R.Mishra and Mr.M.R.Prajapati for the defendants.

Gaurav Jani, Anand Patwardhan, Simantini Dhuru 

The High Court Order

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1448 OF 2006

 

1. Gaurav Ashwin Jani, )
of Bombay, Indian Inhabitant, )
residing at 63 – J Gitanjali )
Society, Raheja Township, )
Malad – East, Mumbai-97. )

2. Anand Patwardhan, of )
Bombay, Indian Inhabitant, )
residing at 22, Lokmanya )
Tilak Colony Marg No.2, )
Dadar (East), )
Mumbai-4000 014. )

3. Simantini Dhuruv, of )
Bombay, Indian Inhabitant, )
residing at 3, Navalkar )
Building, 29-B, Opera )
House, Bombay. ) ..PETITIONERS.

Versus

1. The Director, )
Directorate of Film Festivals )
(NFA) Ministry of Information )
and Broadcasting, Siri Fort )
Auditorium Complex, New )
August Kranti Marg, New )
Delhi 1100 49. )

2. The Ministry of Information )
and Broadcasting, the )
Government of India, )
New Delhi. )

3. Union of India, )
through Law Officer, )
Legal Department, )
Ayakar Bhavan, New )
Marine Line, )
Mumbai-400 032. ) ..RESPONDENTS.

….
Mr.P.A.Sebastian,Advocate for the Petitioners.
Mr.Y.R.Mishra with Mr.N.R.Prajapati, Advocates

for the Respondents.
….

CORAM : F.I.REBELLO AND SMT.V.K.TAHILRAMANI,JJ.

DATED : JULY 27, 2006.

 

JUDGMENT (PER F.I.REBELLO,J.)

 

1. The petitioners herein have approached this Court challenging Regulations 10(d) and 10(e)
of the 53rd National Film Awards Regulations as violative of Article 14 and Article 19(1)(a) of the Constitution of India. Consequential relief by way of mandamus have also been prayed
for. The two Regulations which are subject matter of this Petition reads as under :

 

“ELIGIBILITY :

10(d)

Films made in any Indian language,shot on 16 mm, 35 mm or in a wider gauge or
digital format but released on a film format and certified by the Central Board of Film Certification as a feature film or featurette are eligible for feature film section. In the case of award for Best Children’s Film only such films shall be eligible as have been certified by the
Central Board of Film Certification as children’s films. The phrase ‘any Indian language’ would mean all official languages of the State/Union Territories of the Indian Union, all other Indian languages included in Schedule VIII of the Constitution of India and such other languages and dialects that may be permitted by the Government of India from time to time. (Emphasis supplied)

 

10(e)

Films made in any Indian language, shot on 16 mm, 35 mm or in a wider gauge or
digital format but released on film format and certified by the Central Board of Film
Certification as a Documentary/Newsreel/Non-Fiction/Short-Fiction are eligible for non-feature film section. The phrase ‘any Indian language’ would mean all official languages of the State/Union Territories of the Indian Union, all other Indian languages included in Schedule VIII
of the Constitution of India and such other languages and dialects that may be permitted by the Government of India from time to time.” (emphasis supplied)

 

2. Some of the averments in the Petition are as under : the first petitioner who is a Documentary Film Maker has recently made a documentary called “Riding solo to the top of the world”. This documentary has won the Best Documentary Award – National Category and also National Critics Award at Mumbai International Film Festival organised by the
Government of India in February, 2006. The second petitioner is a well known documentary
filmmaker whose documentaries are internationally acclaimed for the democratic and secular
message they convey. The petitioner No.2 points out that his several films have been selected
as the best documentary of the year concerned and have also been awarded the President’s
gold medal. The third petitioner is also a documentary filmmaker of repute having won a
Filmfare Award in India and also the Earthvision award in Japan.
3. Respondents, it is contended, organise National Film Awards festivals (NFA) from time to time with a view to encourage the production of films of aesthetic and technical excellence
and social relevance contributing to the understanding and appreciation of cultures of different
regions of the country in cinematic form, thereby also promoting integration and unity of the Nation.

The last date for the entry of films for the 53rd NFA was 19th May, 2006. Regulation 10(e) which is already been reproduced, requires that films made in any Indian language, shot on 16mm, 35mm or in a wider gauge or digital format but released on film format and certified by the Censor Board of Films Certification as a documentary / Newsreel / Non-Fiction / Short Fiction are eligible for non – feature film section. The documentary of petitioner No.1 was shot on digital format and is also released on the digital format. This makes a documentary ineligible for entry to the 53rd NFA. If the film is to be converted from digital format to a film (celluloid) format of 16 mm or 35 mm itself will cost the first petitioner an amount of approximately Rupees 25 Lakhs. The petitioner does not have that much amount at present, and which deprives him of an opportunity to compete for the 53rd NFA. It is pointed out that in the beginning all films were shot on celluloid. By 2004, especially for documentary and low-budget filmmakers making films on celluloid was becoming technologically outdated and unnecessarily expensive. On account of that, representation was made to the Government of India, which accepted the representation and permitted the films made in any Indian language shot on 16 mm, 35 mm or in a wide gauge, or digital format but released on either film format or Betacam-SP (broadcast quality format).

 

After the Petition was filed, on May 19, 2006 a statement was made on behalf of the Respondents that the issue of permitting films in digital format was under consideration. TheRespondents since then have made eligible the documentary films on digital formats and as such the challenge on that count no longer survives.

4. The only challenge which now survives is the issue as to whether the petitioners have to have the requirement of the Censorship Certificate for entering their films for the NFA. We may gainfully refer to the provisions of Section 9 of the Cinematography Act, 1952, which hereinafter shall be referred as the Act. The said Section reads as under :

 

9. Power to exempt.- “The Central Government may, by order in writing exempt, subject to such conditions and restrictions, if any, as it may impose, the exhibition of any film or class of films from any of the provisions of this Part or of any rules made thereunder.”

In other words there is power conferred in Central Government to exempt a class of films from any of the provisions of Part-II. Part-II deals with the requirement of certification of films forpublic exhibition.
5. The petitioners before us have averred and produced material to indicate that this power
under Section 9 of the Act, has been exercised by the Government of India in the matter of film

festivals, where films both international and

national are exhibited. Our attention has been

invited to the entry form for MIFF 2006. The

relevant clause is Clause 15 which reads as under

: 15. Censorship will not be applicable to

ANY films/videos entered in the festival.”
This is pursuant to regulations made by

various festival authorities for according

exemption from the process of certification for

films for exhibition in their festivals. A

Committee was formed which submitted its report to

the Government on 16.11.2005. Based on that

guidelines have been framed and notified. Clause

2 and 3 reads as under :-
“2. After detailed deliberations, the

Committee submitted its report to the

Government on 16.11.2005 with certain

recommendations which have since been

accepted. The following guidelines are

Page[8].

 

 

notified with immediate effect :
(i) In those festivals which are

non-commercial in nature and viewership is

confined to delegates (definition of

delegates would include filmmakers, media

students, critics, film theorists, film

lovers and all those associated with the

production and business of film and members

of the press duly registered with the

festival authorities as well as its jury),

the Government would grant exemption for

both Indian and foreign films. However,

the exemption would be subject to

fulfilment of the conditions prescribed in

para 3 below.
(ii) The request for exemption from the

process of certification will be disposed

of within 15 days from the date of receipt

of the proposal complete in all respects

from the Director of the Festival.
(iii) In exceptional cases, the Ministry of

I & B will have the powers to reject, for

.Page[9].

 

 

reasons to be recorded in writing, the

request for exemption to any film(s)) if,

in its opinion, it would impinge on the

security or integrity of the country or

affect law and order or affect relations

with other countries.
(iv) In case of rejection, the Director of

the Festival shall have the option to

appeal to the next higher authority in the

Ministry of I & B i.e. the Additional

Secretary/Secretary, as the case may be,

who shall dispose of the appeal within 15

days from the date of receipt in the

Ministry.
3. In order to consider the request for

exemption from the process of certification

for films to be screened in festivals, the

following documents shall be sent by the

Director of the Festival addressed to Joint

Secretary (Films) along with the request

for exemption :
(i) List of films to be screened in the

.Page[10].

 

 

festival.
(ii) Synopsis of each of the films
(iii) Composition of the Preview Committee,

which should comprise persons who are

related to the film industry or are

critics/writers connected with films.
(iv) Report of the Preview Committee

certifying that the films have been

recommended for exhibition at the festival.
(v) Certificate from the Director of the

Festival to the effect that the screening

of such films would be limited to delegates

(definition of delegates would include

film-makers, media students, critics, film

theorists, film lovers and all those

associated with the production and business

of film and members of the press duly

registered with the festival authorities as

well as its jury.)
(vi) Certificate from the Director of the

.Page[11].

 

 

Festival to the effect that the festival is

non-commercial in nature.”
6. Under the Regulations framed by the 53rd

NFA the films produced by students of a film

institute running diploma/degree courses and which

are recognised by the Government of India are

eligible to enter without certification by the

Central Board of Film Certification, provided a

specific certificate from the Head of the

organisation to the effect that the film has been

produced by the producers within the eligibility

period, is sent alongwith entry form. Similarly,

entries made by Doordarshan for the non feature

film section are eligible to enter without Film

Certification. The said Regulations 10(f) and

10(g) reads as under :
ELIGIBILITY
10(f). A film produced by a film

institute running diploma/degree courses

run by it which are recognized by the

Government of India shall be eligible even

without certification by the Central Board
.Page[12].

 

 

for Film Certification, provided a specific

certificate from the Head of the

organization to the effect that the film

has been produced within the eligibility

period, is sent along with the entry form.
10(g). Entries made by Doordarshan for the

non feature film section shall be eligible

without certification by Central Board of

Film Certification provided that a specific

certificate, from Director General,

Doordarshan to the effect that the non

feature film has been produced within the

eligibility period, is sent along with the

entry form.”
7. It is the case of the petitioners,

therefore, that the films produced by them, in the

case of national film festival competition are

eligible to be entered without the requirement of

censorship certificate. It is pointed out that

viewing of films screened at Festivals is limited

to a selected audience like film critics and film

theorists. The Committee noted that at film

festivals, the viewership is limited to delegates

 

Page.[13].

 

 

who includes film makers, media students, critics,

film theorists, film lovers and all those

associated with the production and business of

film. It is therefore submitted that it will be

totally arbitrary on the part of the Respondents

of imposing a condition or a restriction that only

films which have been certified by the Central

Board of Film Certification between 1st January,

2005 and 31st December, 2005 can be entered for

NFA. This, it is submitted has neither any

rational nor can it be said that films entered in

the film festivals constitute a class by

themselves as distinct from the films which can be

entered for NFA as the producers can enter the

same films both for the National Film Festivals as

also NFA. The failure to grant exemption for

N.F.A. is discriminatory, and hence violative of

Article 14 of the Constitution of India. The

restriction, it is also submitted, amounts to an

unreasonable restriction on the petitioners right

of freedom of speech and expression and on that

count also such a condition ought to be held to be

unreasonable. The petitioners submit that the

Respondents must apply the same conditions for

entry to NFA is concerned which conditions are

.Page[14].

 

 

applicable in the case of the international film

festivals. Apart from that it is pointed out that

when the film is entered in NFA it is to be viewed

only by the judges whereas for a film festival it

is viewed by a large number of delegates. The

judges consist of a limited panel. In these

circumstances, insisting on the petitioners to

have a censorship certificate is unreasonable

and/or arbitrary. It is pointed out that after

the film is selected for the award, it is open to

the Respondents before the film is screened to the

public to insist on a certificate under Part-II of

the Act.
8. On behalf of the Respondents, Manoj

Srivastava, Deputy Director, Directorate of Film

Festivals has filed an affidavit, opposing grant

of the relief. It is firstly submitted that the

decision and guidelines are reasoned policy of the

Government of India and in these circumstances

this Court in the exercise of its extraordinary

jurisdiction should not interfere with the said

policy guidelines. For that purpose reliance is

placed on the judgment of the Apex Court in

Gyanprakash Vs. Union of India (1997) 11 SCC 670.

.Page[15].

 

 

The Supreme Court held, that the Supreme Court or

the High Courts should not interfere in the policy

matter unless such policy violates the fundamental

right of the petitioners. Reference is also made

to the judgment in Balco Employees Union Vs.

Union of India. It is not necessary to refer to

other judgments. The policy is then set out as

under :
“That the policy framework relates to, and

specifically pertains to, requests made by

‘Festival Directors’ of various “FESTIVAL

AUTHORITIES” in India who organise film

Festivals for a specific period of days,

wherein they intend screening Indian and

foreign films that do not have

certification in India. However for public

screening in India, all necessarily require

certification from the Central Board of

Film Certification.”
The Films which are exempted and exhibited

at film festivals are only screened to registered

delegates. Reference is then made that juries are

set up with the objective and/or purpose for

.Page[16].

 

 

selecting technically and aesthetically good films

as defined in the Gazetted Regulations of the

scheme of ‘National Film Awards’, the Indian

Panorama etc. . Once the juries finally select

the films, The President of India awards them and

these films are later screened for the ‘general

public’ at large. The Indian Panorama films,

after selection by a jury are also being sent to

various international film festivals. For all the

aforesaid reasons, it is submitted that, this

Petition ought to be dismissed.
9. At this stage, we may clarify that the

Respondents seem to be confused on the issue of

films for the Indian Panorama. As explained on

behalf of the petitioners at the bar and which has

not being denied on behalf of the Respondents,

that this has nothing to do with the films which

did not have the certificate under Part-II. The

films in the Indian Panorama are the films which

have normally obtained certificates under Part-II.

The reference to Indian Panorama discloses total

non application of mind on the part of the

Respondents, whilst filing their reply.

Page[17].

 

 

10. The limited issue therefore before us is

whether the Respondents’ policy of restricting the

participation to only those films which have been

certified by the Censor Board is legal, valid

and/or is arbitrary, unreasonable and violative of

the petitioners’ right to freedom of speech and

expression. The expression ‘freedom of speech’ in

our opinion is wide enough and connotes any form

of expression including by making of films. The

right of freedom of speech is guaranteed by the

Constitution of India. Is the requirement of

certificate from the Censor Board of Films for

entry to the 53rd NFA amounts to violation of the

right guaranteed under Article 19(1)(a) of the

Constitution of India ?. Secondly, would

exempting screening of films at International or

National film festivals without a certificate from

the Board as also exempting films made by film

institutes and non-feature films made by

Doordarshan at 53rd NFA, would amount to

discrimination, being unreasonable and/or

arbitrary and consequently violative of Article 14

of the Constitution of India ?
11. We shall firstly deal with the contention

Page[18].

 

 

urged by the petitioners that Article 14 is

violated. We have already adverted to the fact

that there is power in the Central Government to

exempt the films from the purview of Part-II. The

Government of India on representation by the film

industry has so done for film festivals screening

international and national films. In other words,

the Respondents themselves are of the opinion that

films screened at a film festival constitutes a

class by themselves and the films can be exhibited

without a censorship certificate. The audience at

such festivals are delegates and as pointed

earlier not necessarily members of jury. Insofar

as NFA 2006 is concerned, two categories of films

covered by regulation 10(f) & 10(g) can enter

their films without certificate. These films will

be viewed by the same jury as other films entered

by the petitioners and others. Whilst films

entered by categories 10(f) & 10(g) will be judged

by the jury without a certificate, the films made

by the petitioners would require a certificate

from the Censor Board. The exemption granted to

films falling in regulation 10(f) and 10(g) of NFA

Regulations and exemption to films from

Certificate for MIFF 2006 and insistence on
.Page[19].

 

 

certification for films by other participants to

NFA is clearly discriminatory being arbitrary.

Would not this insistence by the Respondents be

arbitrary and/or discriminatory in the absence of

any explanation. It was for the Respondents,

after the petitioners have discharged their burden

to show that such classification is reasonable and

has nexus with the object, which is selecting the

best films for awards. The Respondents ought to

have discharged this burden, by showing that the

class which is exempted, amounts to a different

class having characteristics different from the

class which is protected and further said

classification has a reasonable nexus with the

object. Classification is merely a judicial

formula for determining whether the exemption

action is arbitrary. In the instant case the

object of selecting the best films by the jury is

defeated, if some films can be judged without

certificates and others only after a certificate.

 

 

12. In our opinion if a jury has to examine and

give an award to the film, it must be in a

position to view it, in its entirety by
.Page[20].

 

 

considering all features, which go into the making

of films and not a revised version which a

censorship board may do by imposing cuts in the

films. The Respondents themselves based on

representation by the members of the film

industry, took a decision that certificate of

Censor Board is not required for Film Festivals as

set out in the policy decision as also for film by

a class of persons for NFA-2006. No explanation

has come why the other films are not allowed to be

entered without a certificate of the Censor Board.

This would be clearly amount to practicing

discrimination. The law on the subject of

classification has been explained and reiterated

in Shashikant Laxman Kale & Anr. Vs. Union of
Shashikant Laxman Kale & Anr. Vs. Union of India, reported in (1990) 4 SCC 360.
The law is

also clear that equals cannot be treated as

unequals as such treatment would be violative of

Article 14 of the Constitution of India. What is

the difference between the films of producers

excluded from exemption and those who have been

excluded. In matter of Art, State Institutions

like Doordarshan or film schools can have no

special protection. The historical truth if one

may state is that Art in such institutions rarely

Page.[21].

 

 

blooms it mostly wilts. Who makes the film is

immaterial. A jury has to view and judge the

films through the eyes of the artist and what he

seeks to convey to the audience and as made in its

original form. The source from where it is

produced therefore becomes irrelevant. The film

is to be judged by only a select jury and is not

being viewed by the public at large. Why should

the jury then have to view through the eyes of the

Censor Board, when the same jury in case of films

by two other producers can view it without a

certificate. Any other view of the matter would

result in the jury not being able to examine the

film from the perspective of the film maker and

the concept based on which he has made it. The

selection procedure for the award in such

circumstances would be treating unequals as

equals. This is clearly arbitrary and violative

of Article 14 of the Constitution of India. Our

Constitution makers, when they enacted Part III of

the Constitution foresaw freedoms expanding and

that art cannot be repressed, except by reasonable

restrictions. Once the respondents themselves

have accorded exemptions from certificates for

film festivals and these exemptions can apply to

.Page[22].

 

 

the very film, if the petitioners screen them at

film festivals where a larger audience can view

them, we find the action of the Respondents in

refusing to exempt or exercise their power under

Section 9, insofar as film belonging to a class of

producers at NFA, as being totally arbitrary being

discriminatory.
13. In this view of the matter, therefore, the

petition insofar as the challenge under Article 14

is concerned to Regulations 10(d) & 10(e) will

have to be allowed. We, however, make it clear

that the organisers can subject the films entered

to the same tests as laid down by the Respondents

in Clause-8 of Eligibility and Regulations for

MIFF – 2006.
14. The second issue whether the restriction as

imposed can be said to be violative of Article

19(1)(a) of the Constitution of India. In our

opinion, considering that we have upheld the

challenge under Article 14, it is not necessary

for us, at this stage, to deal with the challenge

under Article 19(1)(a) of the Constitution of

India.

.Page[23].

 

 

15. For all the aforesaid reasons, Rule is made

absolute in the following terms : the words ‘

certified by the Central Board of Film

Certification’ ’ in Regulations 10(d) & 10(e), are

held to be violative of Article 14 and

consequently void. Regulations 10(d) and 10(e),

shall be read without those words. Rule is made

also absolute in terms of Prayer Clause (b).
16. The films of the petitioners and other

similarly situated, should be allowed to be

entered by the Respondents for N.F.A.2006 in

digital form and without a certificate from the

Central Board of Film Certification. It will be

open to the Respondents to impose conditions like

Regulation 8 of MIFF-2006. In the circumstances

of the case, there shall be no order as to costs.

 

[F.I.REBELLO,J.]

 

[SMT.V.K.TAHILRAMANI,J.]