Josia S.D and Sr. Mary K.G. v Union of India and others

W.P.(C).No.11278/21 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** **WP(C) NO. 11278 OF 2021** ## **PETITIONERS** 1 JOSIA S.D AGED 37 YEARS S.D.PROVINCIAL HOUSE, KOZHIPPILLY P.O, KOTHAMANGALAM, ERNAKULAM DISTRICT. 2 SR. MARY K.G. ST.RITAS CONVENT, PANDIT KARUPPAN ROAD, THEVARA, 682013, ERNAKULAM DISTRICT. BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SHRI.JOHN VARGHESE ## **RESPONDENTS:** 1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF INFORMATION AND BROADCASTING, ROOM NO. 552, A WING, SHASTRI BHAWAN, NEW DELHI - 110001. 2 THE CENTRAL BOARD OF FILM CERTIFICATION PARYAVARAN BHAVAN, CGO COMPLEX, 3RD FLOOR, LODHI ROAD, NEW DELHI - 110003, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 3 THE REGIONAL DIRECTOR CENTRAL BOARD OF FILM CERTIFICATION, REGIONAL OFFICE, 1ST FLOOR, CHALACHITRA KALABHAVAN, VAZHUTHACADU, THIRUVANANTHAPURAM - 695014. W.P.(C).No.11278/21 2 4 MR. T. DEEPESH, DIRECTOR AND STORY OF THE MALAYALAM MOVIE 'AQUARIUM' WORKING AS TEACHER OF DRAWING, CHMHSS, KAVUMPADY, THILLENKERY, KANNUR DISTRICT - 670702. 5 MR. SHAJI KANNAMBETH PRODUCER OF THE MALAYALAM MOVIE 'AQUARIUM', PROPRIETOR OF KANNAMBETH PRODUCTIONS, RESIDING AT MATTANNUR, KANNUR DISTRICT - 670702. 6 THE SANIA PLAY OTT, WHICH IS AN ONLINE PLATFORM, OWNED BY SAINA INFOTAINMENTS PVT.LTD, DOOR NO. 40/3090. (32/2385B2) KOMATH LANE, BEHIND DHANALAKSHMI BANK, PALARIVATTOM P.O 682018, REPRESENTED BY ITS MANAGING DIRECTOR MR. PRAILI BAVA AASHIQU. 7 MR.PRAILI BAVA AASHIQU SAINA INFOTAINMENTS PVT.LTD, DOOR NO.40/3090, (32/2385 B2) KOMATH LANE, BEHIND DHANALAKSHMI BANK, PALARIVATTAM P.O, - 682018. BY ADVS. SRI.SUVIN R.MENON, CGC AJITH VISWANATHAN VIJAY V. PAUL GOKUL ASOK NANDA SURENDRAN P.VISWANATHAN (SR.) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING: W.P.(C).No.11278/21 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** ## **W.P.(c).No.11278 of 2021** **= = = = = = = = = = = = = = = = Dated this the 5[th] day of April, 2022** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs:- “i. Issue a writ calling for the records leading to Certificate No.DIL/3/1/2020-THI dated 04.03.2020 from the 2[nd] respondent and to pass appropriate order to meet the ends of justice: i(a )issue a writ of certiorari calling for the record leading to Exhibit R4(a) and quash the same (incorporated as per order dated 7.7.2021 in IA No.1/2021) ii. Issue a writ declaring that the certification granted for the film ‘Aquarium’ is by suppressing material facts as regards earlier rejection for the very same script with the name ‘Pithavum Puthranum Parishudhathmavum’ and the certificate now obtained is practicing fraud on 2[nd] respondent;” 2.Heard Sri.George Poonthottam, the learned Senior Counsel for the petitioners, Sri.Suvin R Menon, the learned Central Government Counsel, Sri. Ajith Viswanathan, the learned counsel appearing for respondents 4 and 5 and Sri.Vijay V. Paul, the learned counsel appearing for respondents 6 and 7. W.P.(C).No.11278/21 4 3.It is submitted by the learned Senior Counsel for the petitioners that the petitioners are the Roman Catholic Christians and nuns, who have dedicated their lives to their faith. It is submitted that the petitioners as well as priests in the Catholic Church are under perpetual vow of the celibacy. The 4[th] and 5[th] respondents had sought permission of the sensor board for a film named “Pithavinum Puthranum Parisudhathmavium” on the basis of Exhibit P2 script published in 2013. It is stated that censorship certificate was rejected by the Regional Censor Board, Thiruvananthapuram in the year 2012. An appeal was preferred before the Central Board of Film Certification, which was also rejected in 2013. However, by changing the name of the film as 'Aquarium', respondents 4 and 5 have now obtained permission from the Censor Board to exhibit the movie by certificate dated 4.3.2020 issued by the Central Board of Film Certification, New Delhi. - 4.It is submitted that on coming to know of the issuance of the certification, the petitioners had submitted Exhibit P3 W.P.(C).No.11278/21 5 complaint to the Prime Minister, which has not been considered. The petitioners contend that the intention behind the film is to create enmity between Christians, Hindus and Muslims and to give a totally different picture of priests and nuns and to undermine the dignity of women in society. It is contended that the film indirectly affects the fundamental right of the Catholic Christian community and its believers. It is further stated that though an appellate tribunal was constituted under the Cinematographic Act, that tribunal was abolished by the Central Government in 2021 and the petitioners have no statutory remedy. It is contended that a reading of Exhibit P2 script would show that the film is intended to portray nuns as sexual perverts and is against the sentiments of Christians, apart from being opposed to public order, decency and morality. It is further submitted that the very same script had been declined permission once, and has been submitted for approval again with only a change in the name of the film and has been granted approval by Exhibit R4(a). The certificate is also subject challenge by the petitioners. W.P.(C).No.11278/21 6 5.This Court while admitting the writ petition had issued an interim order on 11.5.2021 staying all further proceedings based on the certification granted as per certificate dated 4.3.2020. The interim order was extended from time to time. 6.A statement has been filed by respondents by respondents 1 to 3 in the writ petition. It is stated therein that the petitioner has not raised any contentions with regard to violation of their fundamental or legal rights and therefore the writ petition is not maintainable. It is further submitted that an offline application for certification of the Malayalam feature film titled _Pithavinum Puthranum_ was received in the Regional Office, Central Board of Film Certification on 10.05.2013 with Mr.Sundaran K.P. as producer. The director of the film as per the application was Deepesh T. The duration of the film was 97 minutes and 40 seconds. It appears that several written complaints were received alleging that the contents of the film are defamatory to the christian fame. It is stated that the examination committee held on 3.6.2013 viewed the film and recommended refusal of certificate to it. The applicant was W.P.(C).No.11278/21 7 put on notice and an order of rejection dated 4.6.2013 was served. The applicant submitted an application for screening of the film before the Revising Committee on 19.6.2013. the Revising Committee was held on 14.8.2013 and majority of the members recommended refusal of certificate. The said order was also communicated to the applicant. A notice was also issued to the applicant directing him to show cause why action should not be taken against him under Section 26 of the Prevention of Cruelty to Animals Act, 1960 on 1.10.2013 to which a reply submitted by e.mail on 18.10.2013. 7.It is further submitted that with regard to the film 'Aquarium' online application was made on 8.5.2018 from Mr.K.Shaj K, Kannambeth Productions, Ram Nivas, Muzhappala P.O., Mamba, Kannur. The Examining Committee was held on 14.6.2018 with Smt.Prathibha, former Regional Officer as Examining Officer and 4 advisory panel members and the committee unanimously recommended refusal of certificate. The film was referred by the Chairman, CBFC to the Revising Committee under Rule 24(1) of the Cinematograph W.P.(C).No.11278/21 8 Certification Rules and notice was issued by the Regional Officer, CBFC to Mr.Shaj on 22.6.2018. The applicant applied before Revising Committee on 12.07.2018. On 14.7.2018, Mr.Sundaran K.P. addressed a letter to the Regional Officer, CBFC alleging that the film Aquarium produced by Mr.Shaj K had been copied from his film 'Pithavinum Puthranum'. This was intimated to Mr.Shaj K. Later in July 2019, Mr.Shaj K contacted the Regional Officer, CBFC, Thiruvananthapuram and expressed his wish to get the revising of his film Aquarium done at the earliest. He also submitted deed of partnership between him and Mr.K.P.Sundaran and two others. Thereafter a Revising Committee consisting of a Presiding Officer and 8 Advisory Panel Members conducted a detailed examination of the film and ordered as follows:- - “The Revising Committee having examined and having considered the film in its entirety unanimously came to the conclusion that the film can be certified for public exhibition Restricted to Adults with some cuts.” - 8.It is further submitted that even if a film is rejected by the Examining Committee or the Revising Committee the same can be brought for certification even with the same title or a changed title and there is no legal restriction under the W.P.(C).No.11278/21 9 Cinematograph Act, 1952. It is stated that films once rejected can be brought for certification with additions or deletions or with changed titles. The films thus submitted would be examined as a new film and certificate cannot be denied for the reason that the same was rejected earlier. It is further submitted that the details regarding the certificate of the film Aquarium is available in the public domain and the certificate granted to the film had been published in the website wwww.cbfcindia.gov.in maintained by the CBFC. It is further contended that the certificate under challenge was granted by the CBFC after the revising committee examined and considered the film in its entirety and took a unanimous decision to certify the film. It is further submitted that the Central Board of Film Certification has no role with regard to exhibition of films in Over the Top platforms and that the expert committee had seen the film and has gone through the script in detail and has not found anything against religious sentiments or against the provisions of Section 5 of the Cinematograph Act in the film. It is further submitted in paragraphs 24 and 25 of the statement as follows:- W.P.(C).No.11278/21 10 24. It is submitted that the CBFC has to keep in mind the creative and artistic freedom of the people involved in creating a film; CBFC can only impose restrictions limited under Article 19(2) of the Constitution of India and guidelines formulated under Section 5B (2) of the Cinematograph Act. The Hon'ble Supreme Court has also held that artistic freedom cannot be curtailed by the certifying authorities. 25. It is submitted that once the Expert Body, that is CBFC has considered the impact of the film on the public and cleared the film, it is the duty of the State Government to see that the law and order is maintained. The screening of the film cannot be prohibited stating that it will create law and order problem. - 9.Respondents 6 and 7 have also placed a counter affidavit on record, wherein the specific contention is that the certification, as evidenced by Exhibit R4(a), is only with regard to exhibition of the cinema in theatres and has no application to release of the film through OTT platform. - 10.The learned counsel appearing for respondents 6 and 7 submits that similarly situated persons like the petitioners have approached the High Court of Delhi filing W.P. (C).No.5286/2021 seeking stay of release of the film in the W.P.(C).No.11278/21 11 OTT platform. But the said interim prayer was declined and the representation submitted by the petitioners was directed to be considered by the concerned respondents. It is further submitted by the learned counsel appearing for respondents 6 and 7 that the film certification as granted in Exhibit R4(a) can have absolutely no application to the release of the movie through OTT platforms. But, in deference to the orders and authority of this Court, the film has not been released on OTT platforms also. 11.The decisions of the High Court of Karnataka in **Padmananbh Shankar v. Union of India and others** [W.P. (C).No.6050/2019] and of the High Court of Delhi in **Jessy Mani v. Union of India and another** [W.P.(C).No. 5286/2021] are also relied on. A decision of the Apex Court in **Nachiketa** **Walhekar v. Central Board of Film Certification and another** [2018 KHC 2352] and of this Court in **Peggy Fen v. Central Board of Film Certification, TVM and others** [2022 KHC 120] and of Bombay High Court in **Sameer Shankarrao Shukla and others v. State of Maharashtra and others** [2018 KHC 3268] are also relied on. W.P.(C).No.11278/21 12 12.A detailed counter affidavit has been placed on record by respondents 4 and 5. It is contended therein that there is absolutely no merit in the allegation that fraud was practiced to obtain certification of the movie. It is submitted that the earlier movie for which certificate was sought was named 'Pithavinum Puthranum' and had a duration of 2.6 hrs. It is submitted that there are several changes in the script and the movie titled 'Aquarium' has a duration of 1 hour and 40 minutes. It is stated that certain portions of the movie 'Aquarium' were shot in the year 2017, after obtaining statutory permissions, as required. It is further contended that the contention raised in the writ petition that the movie is intended to defame Christianity and to create communal disharmony are completely denied and it is contended that the cinema is only an artistic work attempting to depict the life of certain individuals and there is absolutely no attempt as sought to be highlighted in the writ petition. It is contended that the movie was exhibited in the 26[th] Kolkata International Film Festival and there is absolutely no restriction for W.P.(C).No.11278/21 13 exhibiting the movie on OTT Platforms, since such platforms are not subject to certification under the Cinematograph Act. 13.I have considered the contentions advanced. The apprehension raised by the petitioners is to the effect that the contents of the cinema tends to defame the nuns and priests of the Catholic order and casts unjustified aspersions of a community, who have dedicated their lives to prayer and to the service of mankind. However, I am of the opinion that the only issue that can be considered by the constitutional court in this writ petition is with regard to the legality or otherwise of the certificate granted by the Board. The only question is whether the certificate granted is liable to be struck down by this Court. 14.This Court as well as the Apex Court have repeatedly considered the nature of challenge, which is permissible where a permission to exhibit a cinema is under challenge. A cinema is admittedly a work of art as well as a medium of expression. It is in that context that a challenge against a W.P.(C).No.11278/21 14 certificate authorising the exhibition of a movie is to be considered. The creator of the cinema undoubtedly has the rights of expression as are protected under Article 19 of the Constitution. An allegation of incorrectness of depiction, bad taste or even ill motivation, would not, therefore, be sufficient to hold that a movie should not be exhibited in public. For such a direction to be issued the mere fact that the movie or any part thereof offends the sensibilities of a certain section of the viewing public would not be adequate. The petitioner must contend and prove that the contents of the movie would fall within the restrictions under Article 19(2). Even in case such a contention is raised, under the scheme of the Cinematograph Act, the question would arise whether it is for this Court exercising jurisdiction under Article 226 of the Constitution of India to substitute its opinions for that of the duly constituted authority under the Act. This Court in several decisions including **Jayan Cherian v. Union of India** [2016(5) KHC 122] and **Kerala State Chalachitra Academy, Tvm v. Union of India and others** [ 2018(1) KHC 387] has considered the extent of restriction that can be imposed on the W.P.(C).No.11278/21 15 freedom of speech and expression and has held that where restrictions are imposed on such freedom, the burden would be heavy on the authority to show that such restrictions are reasonable and permitted under law. It has also been held that the question of certification is one to be decided by the duly constituted authorities and that the writ court should be slow to interfere in any such certification granted unless it has been clearly brought out by the material on record that the situation comes clearly within the restrictions imposed under Article 19(2). ## 15.Section 5B of the Cinematograph Act, 1952 reads as follows:- (1) A film shall not be 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 interest of 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.” W.P.(C).No.11278/21 16 16.It is trite law that where the appropriate authority has certified a film for release, the constitutional court cannot act as an appellate authority and substitute its opinion for that of the competent authority. Therefore, unless the petitioners can establish that the opinion of the competent authority that the film is fit for public viewing is totally perverse, this Court would not be justified in interfering with a certificate already granted. 17.Section 6 of the Cinematograph Act, 1952 reads as follows:- 1) Notwithstanding anything contained in this Part, the Central Government (may, of its own motion, at any stage,) call for the record of any proceeding in relation to any film which is pending before, or has been decided by, the Board [or, as the case may be, decided by the Tribunal (but not including any proceeding in respect of any matter which is pending before the Tribunal)] and after such inquiry, into the matter as it considers necessary, make such order in relation thereto as it thinks fit, and the Board shall dispose of the matter in conformity with such order: Provided that no such order shall be made prejudicially affecting any person applying for a certificate or to whom a certificate has been granted, as the case may be, except after giving him an opportunity for representing his views in the matter: Provided further that nothing in this sub-section shall require W.P.(C).No.11278/21 17 the Central Government to disclose any fact which it considers to be against public interest to disclose. 2) Without prejudice to the powers conferred on it under subsection (1) the Central Government may, by notification in the Official Gazette, direct that a) a film which has been granted a certificate shall be deemed to be an uncertified film in the whole or any part of India; or b) a film which has been granted a “U” certificate [or a “UA” certificate or a “S” certificate] shall be deemed to be a film in respect of which an “A” certificate has been granted; or c) the exhibition of any film be suspended for such period as may be specified in the direction: Provided that no direction issued under clause (c) shall remain in force for more than two months from the date of the notification. 3) No action shall be taken under clause (a) or clause (b) of subsection (2) except after giving an opportunity to the person concerned for representing his views in the matter. 4) During the period in which a film remains suspended under clause (c) of sub-section (2), the film shall be deemed to be an uncertified film.” 18.Rule 32 of the Cinematograph (Certification) Rules, 1983 provides for the procedure for consideration of complaint received by the Board in respect of a film which has been certified for public exhibition. Therefore, even in the W.P.(C).No.11278/21 18 absence of appellate tribunals with regard to the certification, it may be open to the Central Government to consider any complaint in relation to any film which has been decided by the Board and pass appropriate orders in the matter in exercise of the revisional powers under Section 6 of the Cinematograph Act. 19.In the above factual situation, I am of the considered opinion that there is nothing placed on record to show that the opinion of the competent authority, that is the Central Board of Film Certification, that the film was fit for public viewing with appropriate cuts and for public exhibition restricted to adults is patently illegal so as to require interference by this Court. I am of the opinion that this court would not be justified in interfering with the certificate so granted by substituting its own opinion for that of the Board. 20.The writ petition fails. In case the petitioners have any grievance with regard to the certification of the movie or any specific depictions therein, it is for them to raise the W.P.(C).No.11278/21 **==> picture [12 x 8] intentionally omitted <==** matter before the Central Government, in terms of Section 6 of the Act. Reserving such liberty, this writ petition is dismissed. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.11278/21 20 ## **APPENDIX OF WP(C) 11278/2021** PETITIONER's EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMMUNICATION NO.5/4/2006-CER/CBFC/THI-/419 DATED 09.08.2012 ISSUED BY THE CENTRAL BOARD OF FILM CERTIFICATION. EXHIBIT P2 TRUE COPY OF THE SCRIPT OF THE MOVIE 'PITHAVINUM PUTHRANUM' PUBLISHED IN MALAYALAM. EXHIBIT P3 TRUE COPY OF THE COMPLAINT BEARING REF.NO.2682/K-19/EC/KCBC/DS DATED 15.06.2013 SENT TO THE HON'BLE PRIME MINISTER OF INDIA. RESPONDENT'S EXHIBITS EXHIBIT R4(c) TRUE COPY OF THE SCRIPT OF THE MOVIE AQUARIUM PRODUCED BEFORE THE 3RD RESPONDENT. EXHIBIT R6(1) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KARNATAKA IN W.P.(C) 6050/2019 EXHIBIT R6(2) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF DELHIIN W.P.(C) 5286/2021 True copy PS to Judge