Setting aside orders withdrawing Central Board of Film Certification certification, the Delhi High Court has paved the way for the release of a Punjabi language feature film ‘Kaum De Heere’ which was slated to be released in August 2014.
The Judgement was passed by a single Judge Bench of Justice Vibhu Bakhru.
Makers of the Film, Sai Cine Productions (petitioner), had moved the High Court against an August 2014 order passed by the Chairman, Central Board of Film Certification (CBFC) withdrawing the ‘A’ Certificate issued to Film earlier that year. The petitioner also assailed an order passed by the Film Certification Appellate Tribunal in October 2014, rejecting the petitioner’s appeal.
The Film, ‘Kaum De Heere’, is a Punjabi language feature film based on the events that followed the storming of the golden temple and the assassination of the Indian Prime Minister in 1984. The Film featured actors playing the characters of Satwant Singh and Kehar Singh, who were involved in the assassination of the then Prime Minister of India.
According to the petitioner, the feature film depicted historical events and the sentiments of the Sikh Community at the material time and concluded with the hanging of the persons accused of assassinating the then Indian Prime Minister.
The Flim was allowed to be screened with ‘A’ certificate after certain cuts were recommended.
In August 2014, the Ministry of Home Affairs sent a letter to the Secretary, Ministry of Information and Broadcasting stating that input had been received with regard to the Film. It was informed that certain organizations in Punjab had opposed the screening of the film and had vowed to organize protests and demonstrations outside cinema halls in case of its release.
After a special screening of the Film was organized for the Ministry of Home Affairs, it was opined that the Film was likely to cause a serious law and order situation by arousing sentiments of the people and further cause disaffection amongst the armed forces. It was also observed that the contents of the film appeared to be contrary to certain observations made by the Supreme Court in its decision in the matter of Kehar Singh and Ors vs State (Delhi Admn.). The Ministry of Information and Broadcasting was thus requested to take immediate action.
The Flim was thereafter “re-examined” by the CBFC and the certificate was withdrawn on the basis that the Film encouraged the idea of taking the law into one’s own hands and put the interest of a community above that of national harmony.
It was the petitioner’s claim that the order withdrawing certification to the Film was without jurisdiction as CBFC did not have the power to review its own decision. The Petitioner claimed that order was passed at the instance of the Central Government, which had no power to issue any such directions.
The Petitioner also submitted that the Film did not violate any guidelines and withdrawal of certification was violative of Article 19(1)(a) of the Constitution of India.
The CBFC, on the other hand, submitted that the Central Government had the power under Section 6(2) of the Cinematograph Act, 1952 to direct that a film, which has been granted certification, be deemed to be an uncertified film in any part or the whole of India. Reliance was also placed on Rule 32 of the Cinematograph (Certification) Rules, 1983 which deals with the re-examination of certified films.
After hearing the parties, the Court perused Section of the Act and observed that Section 6(1) indicated at the Central Government’s power to call for the records of any proceedings in relation to any film, which is pending before or has been decided by CBFC or FCAT.
The Central Government is then required to make such inquiry into the matter as it considered necessary and thereafter, make an order in relation thereto as it deems fit. CBFC was also required to dispose of the matter in conformity with any such order.
However, the proviso to Section 6(1) mandated that no such order would be made prejudicially affecting the person to whom a certificate has been granted, except after giving him an opportunity for representing his views in the matter, it added.
The Court further observed that in the present case, the Central Government had not even passed any order under Section 6(1) requiring the Board (CBFC) to act in conformity with such orders.
The chain of communication called upon the Chairperson, CBFC to take appropriate action so that the guiding principles of the Act are not violated by certifying the film for release, it said.
The Court further relied upon the decision of the Supreme Court in Union of India v. K.M. Shankarappa to state that Section 6(1) of the Act, insofar as it enabled the Central Government to exercise the power of revision against the decision of CBFC and FCAT, was declared violative of the basic structure of the Constitution.
The Court noted that once an expert body has considered the impact of a film on the public and has cleared the film, it is no excuse to say that there may be a law and order situation. It is for the State Government concerned to see that law and order is maintained, it further said.
It was thus concluded that the reliance placed by the respondents upon Section 6(1) was wholly misplaced.
“..even if Section 6(1) of the Act was operative, the respondents had not followed the procedure as contemplated therein. The petitioner was not granted any opportunity to represent its views before the direction was issued. Further, Section 6(1) of the Act also does not contemplate the issuance of any direction to the Chairperson of CBFC.”
Since the revisional powers in favour of Central Government in respect of decisions of the CBFC and FCAT were declared unconstitutional, the Court remarked that Rule 32 was also wholly inapplicable.
Further, since there was no notification under Section 6(2) by the Central Government, the Court did not consider it necessary to examine the issue further. The Central Government has nonetheless clarified that it has retained the power to pass orders in terms of under Section 6(2) of the Act.
Accordingly, the petition was allowed and the CBFC and FCAT orders were set aside.
The petitioner was represented by Senior Advocate Colin Gonsalves with Advocate Anupradha Singh.
CBFC was represented by ASG Maninder Acharya with Standing Counsel Anurag Ahluwalia and Advocates Abhigyan Siddhant, Kartikeya Rastogi, Kaartikeya Rastogi, Viplav Acharya, Harshul Chowdhryadn, Ikshita Singh.
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