Jose Kuruvinakkunnel @ Kuruvinakkunnel Kuruvachan v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944 WP(C) NO. 20920 OF 2022** ## **PETITIONER/S:** JOSE KURUVINAKKUNNEL @ KURUVINAKKUNNEL KURUVACHAN, AGED 70 YEARS KURUVINAKKUNNEL, MLAPARAMBIL, EDAMATTOM KARA, POOVARANI P.O., PALA, KOTTAYAM DISTRICT. PIN - 686577 BY ADVS. ROSHEN.D.ALEXANDER HARIMOHAN TINA ALEX THOMAS ## **RESPONDENT/S:** 1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING GOVERNMENT OF INDIA, SHASTRI BHAWAN, NEW DELHI., PIN - 110011 2 CENTRAL BOARD OF FILM CERTIFICATION (CBFC) A STATUTORY BODY FORMED UNDER THE MINISTRY OF INFORMATION AND BROADCASTING, FILMS DIVISION COMPLEX, PHASE- I BUILDING, 9TH FLOOR, DR. G. DESHMUKH MARG, MUMBAI- 400026 REPRESENTED BY ITS CHAIRMAN., PIN - 400026 3 CHAIRMAN CENTRAL BOARD OF FILM CERTIFICATION (CBFC), MINISTRY OF INFORMATION AND BROADCASTING, FILMS DIVISION COMPLEX, PHASE- I BUILDING, 9THFLOOR, DR. G. DESHMUKH MARG, MUMBAI., PIN - 400026 4 CHIEF EXECUTIVE OFFICER CENTRAL BOARD OF FILM CERTIFICATION (CBFC), MINISTRY OF INFORMATION AND BROADCASTING FILMS DIVISION COMPLEX, PHASE- I BUILDING, 9TH FLOOR, DR. G. DESHMUKH MARG, MUMBAI- 400026. PIN – 400026 5 REGIONAL OFFICER, REGIONAL OFFICE, W.P.(C) No.20920 of 2022 -2- CENTRAL BOARD OF FILM CERTIFICATION (CBFC). A STATUTORY BODY UNDER MINISTRY OF INFORMATION AND BROADCASTING 1ST FLOOR, CHITRANJALI STUDIO COMPLEX, TIRUVALLUM, THIRUVANANTHAPURAM., PIN - 695027 6 JINU VARGHESE ABRAHAM, AGED 37 YEARS S/O. V.V. ABRAHAM, FLAT NO.12C, SFS KINGDOM APARTMENTS, NEAR CHOICE SCHOOL, THRIPUNITHURA, ERNAKULAM., PIN - 682301 7 LISTIN STEPHEN, AGED 34 YEARS S/O. STEPHEN RESIDING AT MUDIYILKUNNEL HOUSE, UZHAVOOR - 686 634, HAVING OFFICE AT DOOR NO.2704, KOLAPARAMBIL BUILDING, SOUTH JANATHA ROAD, PALARIVATTOM, ERNAKULAM.., PIN - 682025 8 PRITHVIRAJ PRODUCTIONS LLP, FLAT NO.4, ASSET CASA GRANDE, MALIEKAL ROAD, THEVARA, ERNAKULAM., PIN - 682013 9 SHAJI KAILAS AGED 56 YEARS S/O. SIVARAMAN NAIR, THEJAS, HOUSE NO. 69, KAIRALI NAGAR, KURAVANKONAM, KOWDIYAR, THIRUANANTHAPURAM., PIN - 695003 ## **OTHER PRESENT:** ASGI S. MANU; CGC DAYASINDHU SREEHARI N.S;GP P.S.APPU ; SPL.PP. SHAIJAN C. GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.20920 of 2022 -3- ## **JUDGMENT** ## **Dated this the 28[th] day of June, 2022** The petitioner, a planter by profession, is aggrieved by the proposed theatre release of a Malayalam feature film by name “Kaduva”. The reason for his grievance is that the protagonist ‘Kaduvakunnel Kuruvachan’, is portrayal of the petitioner and the story itself is an adaptation of the petitioner's life. According to the petitioner, the movie contains embellishments and additions to real life incidents, some of which are _per se_ defamatory to him and his family members. The petitioner therefore filed a civil suit and obtained an interim order of injunction. Later the injunction application was dismissed and appeal filed against that order met the same fate. On coming to know that the movie has been presented for examination and certification under ## W.P.(C) No.20920 of 2022 -4- Sections 4 and 5A of the Cinematograph Act, 1952 ('the Act' for short), the petitioner submitted an objection against grant of certification to the movie under Section 5A. Thereupon, the fifth respondent issued an email to the petitioner on 23.06.2022, stating that, after going through petitioner's objection, the authority is of opinion that a personal hearing can be given as requested. Accordingly, the petitioner was requested to appear for personal hearing on 27.06.2022 at 10.00 a.m. The petitioner was also required to apprise the authority about the latest legal position/status/orders/judgments and to provide all documents pertaining to the same. The petitioner sent Ext.P7 reply to the fifth respondent pointing out his inability to attend the personal hearing on 27.06.2022, as he is suffering from chronic kidney disease and is advised not to travel. The petitioner also alerted the fifth respondent that, being an W.P.(C) No.20920 of 2022 -5- authority under the Cinematograph Act, it has a statutory obligation to decide the petitioner’s objection, uninfluenced by the findings of the civil court. This writ petition is filed voicing an apprehension that the fifth respondent may not consider the petitioner’s request for postponing the hearing and even if hearing is conducted, no purpose will be served, if the decision is taken based on the order/judgment of the civil courts. 3. Adv. Roshan.D.Alexander, learned Counsel for the petitioner, referred to Section 4 of the Act, which provides for examination of films, Section 5A dealing with Certification and 5B, laying down the principles for guidance in certifying films. Attention is also drawn to Rule 22 (13) of the Cinematograph (Certification) Rules, 1983 (‘the Rules’ for short) and S.O. 836 (E), dated 06.12,1991, prescribing guidelines for certification of films for public exhibition. Reliance is placed on the exposition on the right W.P.(C) No.20920 of 2022 -6- to privacy in _**K.S. Puttaswamy & anr v Union of India and others [(2017) 10 SCC 1],**_ to contend that privacy is sacrosanct and the State is obliged to adopt suitable measures for protecting individual privacy. It is contended that the authorities under the Cinematograph Act are bound to consider petitioner’s objection in accordance with the guidelines, keeping in mind their duty to safeguard individual privacy. 4. Learned CGC submitted that the fifth respondent is willing to consider the petitioner’s objection. The petitioner having failed to appear on 27.06.2022, the decision on his objection is deferred. It is submitted that, if the petitioner is indisposed, the fifth respondent is even willing to hear him through online mode. 5. In the light of the submission that the fifth respondent is willing to hear the W.P.(C) No.20920 of 2022 -7- petitioner through video conferencing mode, all that remains to be considered is the petitioner's contention that the hearing should be done uninfluenced by the orders of the civil court. For considering this contention, it is essential to have a scrutiny of the statutory provisions. Section 4 of the Act deals with examination of films for the purpose of certification, based on the application filed by the person desirous of exhibiting the film. Section 5A provides for certification after examination. The procedure for examination and certification is provided under Rules 22 and 23 the Rules. As per Rule 22, examination of the film is to be done in secrecy by a duly constituted examining committee. Section 5B lays down the guidelines to be followed in certifying films. Being contextually relevant, Section 5B is extracted hereunder; _“5-B. Principles for guidance in certifying films.—(1) A film shall not be_ -8- ## W.P.(C) No.20920 of 2022 _certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of 22[the sovereignty and integrity of India] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence._ _(2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.”_ Guideline No.2.(xviii) issued under SRO.No.836(E) dated 6.12.1991 enjoins the Board of Film Certification to ensure that, ‘visuals or words involving defamation of an individual or a body of individuals, or contempt of court are not presented. 6. From a conjoint reading of the above provisions, it is evident that the film ## W.P.(C) No.20920 of 2022 -9- certification authorities are statutorily bound to take an independent decision with regard to the certification of films. Being so, having decided to hear the petitioner, the fifth respondent is also bound to take an independent decision, _de hors_ the findings of the civil court. Learned Counsel for the petitioner submitted that the petitioner is willing to attend the hearing through video conferencing mode on 04.07.2022. Learned CGC submitted that the fifth respondent will hear the petitioner on that day. 7. In the nature of the order being passed, notice to the party respondents is dispensed with. The writ petition is disposed of as under; The 5[th] respondent shall hear the petitioner through video conferencing mode on 04.07.2022. The time of hearing, preferably in the morning, W.P.(C) No.20920 of 2022 **==> picture [23 x 9] intentionally omitted <==** shall be intimated to the petitioner in advance. The process of certification shall commence after the hearing is concluded and an appropriate decision taken on the petitioner’s objection. Irrespective of such decision, the application for certification of the film 'Kaduva’ shall be considered and appropriate decision taken, in accordance with the procedure prescribed under the Act and Rules. Sd/- **V.G.ARUN JUDGE** scl W.P.(C) No.20920 of 2022 -11- ## **APPENDIX OF WP(C) 20920/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DTD. 09.12.2021 IN I.A NO.1/2021 IN O.S. NO. 206/2021 ON THE FILES OF THE SUBORDINATE JUDGE'S COURT, ERNAKULAM. Exhibit P2 TRUE COPY COMPLAINT DTD. 28.03.2022 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. Exhibit P3 TRUE COPY OF S.O. 836(E), DTD. 06.12.1991 PRESCRIBING GUIDELINES FOR CERTIFICATION OF FILMS FOR PUBLIC EXHIBITION. Exhibit P4 TRUE COPY OF THE ORDER DTD. 06.04.2022 IN IA NO. 1/2021 IN O.S NO. 206/2021 ON THE FILES OF THE SUB COURT, ERNAKULAM. Exhibit P5 TRUE COPY OF THE JUDGMENT DTD. 20.06.2022 ON THE FILES OF THE ADDITIONAL DISTRICT JUDGE-VI, ERNAKULAM. Exhibit P6 TRUE COPY OF REPLY E-MAIL DTD. 23.06.2022 FORWARDED BY THE PETITIONER TO HIS COUNSEL. Exhibit P7 TRUE COPY OF REPLY DTD. 24.06.2022 SENT BY THE PETITIONER TO THE 5TH RESPONDENT THROUGH EMAIL.