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.]