Satish BabuSenan, Shinos A Rahman and Santhosh K. v. The Chairman, Kerala State Chalachithra Academy and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** ## **MONDAY,THE 05TH DAY OF OCTOBER 2020/13TH ASWINA, 1942** ## **WP(C).No.18427 OF 2020(C)** ## **PETITIONERS:** - **1 SATISH BABUSENAN,”LUMBINI”,TC 15/1552, M.P. APPAN ROAD,VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.** - **2 SHINOS A.RAHMAN,”KAMBILAVALAPPIL”, VRINDAVAN, WEST KADUNGALLOOR P.O., ALUVA, ERNAKULAM-683 110.** - **3 SANTHOSH K.,”GOUREESANKARAM”, FOREST OFFICE LANE, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014. BY ADV. SRI.SHYAM KRISHNAN** ## **RESPONDENTS:** - **1 THE CHAIRMAN,KERALA STATE CHALACHITHRA ACADEMY, SATHYAN MEMORIAL BUILDING, KINFRA FILM AND VIDEO PARK, SAINIK SCHOOL P.O.,KAZHAKUTTOM, THIRUVANANTHAPURAM-695 585.** - **2 SHRI. KAMALUDEEN MOHAMMED MAJEED, FILM DIRECTOR (PRESENTLY THE CHAIRMAN, KERALA STATE CHALACHITHRA ACADEMY), “SUBAH”,KODUNGALOOR P.O.,THRISSUR-680 664.** - **3 KERALA STATE CHALACHITHRA ACADEMY, REPRESENTED BY ITS SECRETARY, SATHYAN MEMORIAL BUILDING, KINFRA FILM AND VIDEO PARK, SAINIK SCHOOL P.O.,KAZHAKUTTOM, THIRUVANANTHAPURAM-695 585.** WPC No.18427/2020 : 2 : - **4 THE STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF CULTURAL AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **5 SHRI.JENUSE MOHAMMED,FILM DIRECTOR, “SUBAH”,KODUNGALOOR P.O.,THRISSUR-680 664.** - **6 SHRI. MAHESH B. ALIAS MAHESH PANJU, (FORMER SECRETARY OF THE KERALA STATE CHALACHITHRA ACADEMY),”KAIRALI HOUSE”, T.C 27/441-3, NEAR AKG CENTRE,KUNNUKUZHY, VANCHIYOOR P.O.,THIRUVANANTHAPURAM-695 035.** **R1-R3 BY ADV. SRI.A.SUDHI VASUDEVAN (SR.) R1-R3 BY ADV. SMT.SHILPA SATHISH R1-R3 BY ADV. SRI.JOSE JONES JOSEPH R4 BY SRI.N.MANOJ KUMAR, SPL. GP R5 BY ADV. SHRI. HRITHWIK D. NAMBOOTHIRI R6 BY ADV. SRI.GENS GEORGE ELAVINAMANNIL** ## **GOVERNMENT PLEADER SMT.DEEPA NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC No.18427/2020 : 3 : ## **[CR]** ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` W.P.(C) No.18427 of 2020 ````````````````````````````````````````````````````````````` _Dated this the 5[th] day of October, 2020_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioners 1 and 2, who are film makers, along with the 3[rd] petitioner, who is a music composer, are before this Court seeking to:- “(i) To issue a writ of Mandamus or any other writ or order or a direction, commanding the 1[st] respondent Chairman of the Kerala Chalachithra Academy to resign forthwith; ## Or in the alternative (ii) To issue a writ of Mandamus or any other writ or order or a direction, commanding the 3[rd] respondent Secretary of the Academy to inform the Jury of the 2019 Kerala State Film Awards, not to consider the 5[th] respondent's film NINE for any Award; (iii) To issue a writ of Mandamus or any other writ, order, or direction, commanding the 3[rd] respondent WPC No.18427/2020 : 4 : Kerala State Chalachithra Academy and the 4[th] respondent Department of Cultural Affairs, to make necessary amendments to Ext.P6 Regulations, whereby, a clarification is made that films made by the Chairman, Vice Chairman, members of the General Council or their close relatives, shall not be entered for the Kerala State Film Awards; (iv) To issue a writ of Mandamus or any other writ, order or direction commanding the 4[th] respondent Department of Cultural Affairs to immediately form a committee consisting of eminent filmmakers like Shri.Adoor Gopalakrishnan, Shri.Shaji N. Karun and others with similar international reputation, so as to advise the Government in selecting a Jury for the 2019 Awards and for bringing about transparency in the process.” They are aggrieved by the selection of Jury for the Kerala State Film Awards, 2019. 2. In brief, the pleadings and grievance of the petitioners are as follows:- The films ' _Iruttu_ ' and ' _Vasanthi_ ' directed by petitioners 1 and 2 respectively are entries to the Kerala State Film Awards, 2019. The 3[rd] petitioner has scored music for the film ' _Iruttu_ '. The Film Festival is organised by the 3[rd] respondent-Kerala State Chalachitra Academy, of which 1[st] respondent is the Chairman. The Chairman and Vice Chairperson resort to inequitable selection process for WPC No.18427/2020 : 5 : Awards. For the 2018 Awards, entries were given to a film directed by the 1[st] respondent-Chairman and another film directed by the husband of the Vice Chairperson, which films eventually won Awards. This was made possible by constituting a Jury panel in a biased manner. This year a film directed by the son of the Chairman (the 5[th] respondent) has been given entry. The 6[th] respondent, who was Secretary of the Academy, objected to the entry of the said film, but the Government instead of admonishing the 1[st] respondent, removed the 6[th] respondent from the post of Secretary. 3. According to the petitioners, the Jury for selecting awardees, is chosen by the Academy, though their appointment is made by the Government. The Jury in such circumstances would be biased in favour of the Chairman and the Executive Board. The film directed by the Chairman's son therefore should not have been given entry. Or alternatively, the Chairman should have resigned from the post, or at least, should not have interfered in the preparation WPC No.18427/2020 : 6 : of Draft Jury Panel. The Chairman but indeed influenced the selection of Jury. Therefore, the Jury shall not consider the 5[th] respondent's film for Award. 4. Quoting de Smith's _Judicial Review of Administrative Action_ , the learned counsel for the petitioners Advocate Shyam Krishnan argued that when a film directed by the son of the Chairman of the Academy is competing and when the selection of Jury is as dictated by the Chairman, any reasonable person would have a reasonable suspicion from the circumstances of the case that bias would infect the decision. Considering the Awards conferred on Chairman's film and on the film directed by the husband of Vice Chairperson for the year 2018, the suspicion of bias cannot be mere probability, but is a definite possibility. Kinship has always been recognised as a ground for challenging a Juror. Though kinship does not operate as a disqualification for a judge, wherever it is close enough to cause a likelihood of bias, it does disqualify the judge. 5. Relying on the judgment in _**C.A. Metropolitan**_ WPC No.18427/2020 : 7 : _**Properties Company Limited v. Lannon** [1968 3 All ER 304]_ , the learned counsel for the petitioners urged that members of an independent Tribunal are likely to have been biased, is a serious allegation and the public interest will not be served by relaxing the conditions under which it may be successfully made. Placing reliance on the judgment of the Apex Court in _**Manak Lal v. Dr. Premchand Singhvi** [AIR 1957 SC 425]_ , it was urged that even a layman, not familiar with the legal technicalities and equitable principles on which the doctrine of bias has been based, would immediately apprehend that the Jury selected at the instance of the 1[st] respondent would be biased. In the panel of Jury, even if there is one member who is biased in favour of the 1[st] respondent, it is to be noted that in a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner, contended the counsel, relying on _**A.K. Kraipak and others v. Union of India** [(1969) 2 SCC 262]._ WPC No.18427/2020 : 8 : 6. Opposing the arguments of the petitioners, Senior Advocate Sudhi Vasudevan assisted by Jose Jones Joseph, counsel for respondents 1 to 3, pointed out that it is the producer of the film who submits application for entry of the film. The producer therefore is a necessary party. Since the petitioners are challenging the entry of the film directed by the 5[th] respondent, the producer of the said film who submitted application ought to have been made a party to the writ petition. The writ petition is therefore liable to be dismissed for non-joinder of parties. The learned Senior Counsel further argued that the Jury is selected and constituted by the Government of Kerala and not by the Academy. The Regulations relating to Kerala State Awards for Malayalam Films as contained in Ext.P6, provides for protective measures. Regulation III(6) mandates that all Jury members should submit a signed affidavit stating non-involvement of them or any close relatives in the entries. In fact, the draft panel of Jury was forwarded to the Government by the 6[th] respondent. The said panel is not WPC No.18427/2020 : 9 : under challenge. The writ petition contains no complaint whatsoever about any member of the panel of Jury. The Government has applied its mind while considering the draft list of Jury sent by the Academy and made necessary changes to the draft list. The learned Senior Counsel further pointed out that the writ petition has been filed after six months of issuance of Ext.R1(d) list of Jury. The writ petition therefore has been filed at a very belated stage and it is liable to be dismissed. 7. Advocate N. Manoj Kumar, learned Government Pleader appearing for the 4[th] respondent-State of Kerala pointed out that none of the reliefs prayed for by the petitioners, is maintainable. The first relief is to command the 1[st] respondent-Chairman of the Academy to resign. This Court cannot issue a writ of Mandamus requiring an appointed Chairman to resign from the post. Another relief prayed for by the petitioners is to command respondents 3 and 4 to make amendments to Ext.P6 Regulations. Amendment of Regulations is a legislative function and this WPC No.18427/2020 : 10 : Court cannot issue any writ directing to exercise legislative powers in a particular manner. A further relief has been sought for to command the 4[th] respondent to constitute a Committee so as to advise the Government in selection of Jury for the 2019 Awards. The said issue falls within the realm of policy of the Government. 8. The learned Government Pleader pointed out that as per Regulation III(3), the judging committee for Awards is constituted by the Government. Therefore, any interest of the Chairman of the Academy will not in any manner affect appointment of independent Jury by the Government. As per Regulation V(11), the Chairman, Secretary, Executive Board Members and officials of the Academy are not eligible for individual Awards. The said Regulation V(11) wipes out any possibility of bias in favour of the Chairman or other office bearers/members of the Academy. The concern of bias highlighted by the petitioners is therefore unreal and the writ petition is liable to be dismissed. 9. Advocate Gens George, counsel for the 6[th] WPC No.18427/2020 : 11 : respondent, supported the petitioners in the writ petition and stated that the element of bias that will exist in a panel of Jury recommended by the 1[st] respondent, is evident from the Awards granted during the previous year. The film directed by the Chairman of the Academy and another film directed by husband of the Vice Chairperson, were selected for Awards. This year also, the 1[st] respondent has arbitrarily influenced the drawal of Jury panel. The expulsion of the 6[th] respondent from the post of Secretary of the Academy, was as a consequence of the 6[th] respondent's objection in the 1[st] respondent deciding the panel of Jury. Going by the principles of equity as well as morality, the 1[st] respondent ought to have abstained from drawing a panel of Jury. The learned counsel pointed out various instances during the tenure of 6[th] respondent as Secretary, to establish that the 1[st] respondent has, in fact, influenced the outcome of the Awards. 10. I have heard the learned counsel for the petitioners, Senior Counsel appearing on behalf of WPC No.18427/2020 : 12 : respondents 1 to 3, learned Government Pleader appearing for the 4[th] respondent, counsel for the 5[th] respondent and the counsel appearing for the 6[th] respondent. 11. The short question arising for consideration is whether the panel of Jury appointed for grant of Awards in the Kerala State Film Awards 2019, is biased or whether there is likelihood of bias. The argument of the petitioners is that there is reasonable suspicion of bias and also a real possibility of bias, due to the influence wielded by the 1[st] respondent in the matter of selection of Jury. The bias alleged by the petitioners falls within the contours of personal and judicial bias. Personal bias arises from personal relationship between the deciding authority and the parties which incline him favourably or unfavourably on the side of one of the parties before him. However, in order to challenge a decision on the ground of bias, it is essential to prove at least that there is a reasonable suspicion of bias. 12. Actual judicial bias exists when a Jury Member who presides over is biased against or in favour of one of the WPC No.18427/2020 : 13 : parties. Actual bias exists where it can be shown that a Jury can be shown to be committed to give a particular verdict irrespective of the merits. Apprehended judicial bias exists where a fairminded layman reasonably think that the Jury will not give opinion or decision in the matter impartially. The test then would be whether there is a real possibility, as against remote probability, of bias. 13. The Kerala State Chalachitra Academy is governed by a Memorandum of Association. It is one of the functions of the Academy to manage and distribute State Awards for Films and Video Programs. The General Council of the Academy consists of the following members:- (i) Chairman. - (ii) Vice Chairman. (iii) Secretary. (iv) Secretary to Government in charge of Cultural Affairs Department or his nominee. (v) The Director of Public Relations or his nominee. (vi) Fifteen persons to be nominated by the State Government from among eminent men of Malayalam cinema/TV whenever contributed to the Cinema/TV medium. (vii) One representative each of KSFDC, C-DIT and Doordarshan. WPC No.18427/2020 : 14 : (viii) Secretary to Government in charge finance department or his nominee. The Executive Board of the Academy consists of the following members:- - (i) The Chairman. - (ii) The Vice Chairman. - (iii) The Secretary. - (iv) The Treasurer. (v) One representative each of Secretary, Culture and Secretary, Finance. (vi) Five members nominated from the General Council by the Government. The Memorandum of Association or Articles of Association does not make provision for appointment of Jury for adjudging films for Academy Awards. However, as it is the duty of the Academy to manage and distribute State Awards for Films and Video Programs, the Executive Board of the Academy provides a draft panel of Jury to the Government for consideration. 14. The fact that the Jury is selected and appointed by the Government is not disputed. Necessarily therefore, the WPC No.18427/2020 : 15 : Government is competent either to reject the draft panel, if any, submitted by the Academy in its entirety or to accept the suggestions of the Academy fully or in part. In the current year also, the Government of Kerala has not accepted the panel of Jury suggested by the Academy in its entirety. This would make it evident that the Government applies its mind on the eligibility and competency of the members of Jury, while constituting the panel of Jury for Film Awards. When the panel of Jury itself is constituted by the Government, it cannot be said that the Jury will be biased and would be in favour of the Chairman or Executive Board of the Academy. 15. Ext.R1(d) panel of Jury would show that members of the panel are eminent personalities in the Film and allied fields. To exclude any possibility of bias in the selection of films for Award, Ext.P6 Regulations mandate that all Jury members should submit a signed affidavit in the prescribed format stating non-involvement of them or any of those relatives in the entries. The term 'close relatives' refers to parents, grant parents, children, spouse, children-in-law and WPC No.18427/2020 : 16 : siblings. The said provision would practically exclude any kind of bias or favouritism arising out of kinship. 16. Regulation III(3) of the Regulations provides for constitution of Judging Committee, which is as follows:- “There shall be judging committee constituted by the Government (hereinafter called the committee) to examine and determine the Awards. The committee shall consist of ten members including the Chairman. 80% of the members should know Malayalam. Three members will be film makers and three will be technicians. The Secretary of Kerala State Chalachithra Academy will be the Member Secretary of the committee, without voting right. When the entry for Award exceeds 40 films, the Chairman will have the right to form two or three sub committees for a preselection. In each panel there should be at least one film maker and one technician. The sub-committees will not recommend more than 21 films for the final section. The Jury Chairman or members not less than five will have the right to call back any film rejected by the sub committees. These will be in addition to the 21 films.” Thus, the panel of Jury/Judging Committee is constituted by the Government and not by the Chairman or Executive Board of the Academy. 17. Any producer of a Malayalam film can make an application for entry of his film for Award. All such films for which application is made by the producer with supporting WPC No.18427/2020 : 17 : documents and paying the prescribed fee will be considered by the Judging Committee. The Academy has no power to reject any application for entry. The entries are adjudged by the independent panel of Jury constituted by the Government. In the circumstances, it cannot be held that the Chairman or Executive Board of the Academy can influence the outcome of the competition. 18. When an adjudicatory mechanism is put in place for a specialised professional field having limited number of professionals, it is normal that the members of the adjudicatory body who are also from the same profession, are known personally or professionally to others in the same filed. But, that would not be enough to establish that there is real likelihood of bias in the adjudicatory body. The Executive Authority, namely the Government, being aware of the nature of the specialised professions in film industry, has taken due care to ensure that the panel of Jury is not drawn by the Academy, with a view to exclude any such possibility of bias. The Regulations would show that ample provisions WPC No.18427/2020 : 18 : are made therein to constitute an independent panel of Jury, uninfluenced by the Executive Board of the Academy. Furthermore, the petitioners have no specific allegation of bias against any of the members of the panel of Jury. The petitioners have failed to establish any personal bias or judicial bias on the part of any of the members of Jury/Judging Committee. In the circumstances, this Court finds no merit in the writ petition filed by the petitioners and consequently, the writ petition is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/03/10/2020 WPC No.18427/2020 : 19 : ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF INFORMATION REGARDING TIS AIMS AND OBJECTIVES, OBTAINED FROM THE WEBSITE OF THE 3RD RESPONDENT KERALA STATE CHALACHITHRA ACADEMY** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF SMARANIKA THE PUBLICATION OF THE KERALA STATE CHALACHITHRA ACADEMY** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 18.3.2020 SUBMITTED BY THE PETITIONERS.** - **EXHIBIT P4 TRUE COPY OF THE COMPLETE LIST OF FEATURE FILMS SUBMITTED FOR THE KERALA STATE FILM AWARDS, RECEIVED FROM THE 3RD RESPONDENT KERALA STATE CHALACHITHRA ACADEMY, BY COMMUNICATION DATED 11.5.2020** - **EXHIBIT P5 TRUE COPY OF THE REPLY OF THE 1ST RESPONDENT CHAIRMAN OF THE KERALA STATE CHALACHITHRA ACADEMY DATED 20.3.2020 RECEIVED BY THE 1ST PETITIONER ON 21.4.2020** - **EXHIBIT P6 TRUE COPY OF THE REGULATIONS OF THE KERALA STATE CHALACHITHRA ACADEMY FOR THE KERALA STATE FILM AWARDS 2019** - **EXHIBIT P7 TRUE COPY OF THE REPORT IN THE MATHRUBHOOMI ONLINE NEWSPAPER DATED 23.3.2020** - **EXHIBIT P8 TRUE COPY OF THE RTI APPLICATION DATED 27.8.2020 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT SECRETARY OF THE KERALA STATE CHALACHITHRA ACADEMY** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(a) A TRUE COPY OF THE DATED 24/10/2019 SENT BY THE 1ST RESPONDENT TO SRI.A.K.BALAN, HON'BLE MINISTER FOR WELFARE OF SCHEDULED TRIBES, CULTURE, LAW AND PARLIAMENTARY AFFIARS, KERALA.** WPC No.18427/2020 ## : 20 : **EXHIBIT R1(b) A TRUE COPY OF THE LETTER DATED 07/11/2019 SENT BY THE SMT.BEENA PAUL THE VICE CHAIRPERSON OF THE 3RD RESPONDENT ACADEMY TO 1ST RESPONDENT. EXHIBIT R1(c) A TRUE COPY OF THE EMAIL DATED 28/02/2020, DOWNLOADED ON 24/09/2020, SENT BY THE 1ST RESPONDENT TO THE 6TH RESPONDENT. EXHIBIT R1(d) A TRUE COPY OF THE GOVERNMENT ORDER DATED 18/03/2020 ISSUED BY THE ADDITIONAL SECRETARY, GOVERNMENT OF KERALA. EXHIBIT R1(e) A TRUE COPY OF THE EMAIL DATED 07/09/2020 SENT BY SMT.ARCHANA.K TO THE OFFICIAL E-MAIL ADDRESS OF THE 3RD RESPONDENT ACADEMY. EXHIBIT R1(f) A TRUE COPY OF THE EMAIL DATED 26/08/2020 SENT BY SRI.BERNI.P.J., TO THE OFFICIAL E-MAIL ADDRESS OF THE 3RD RESPONDENT ACADEMY. EXHIBIT R1(g) A TRUE COPY OF THE EMAL DATED 08/09/2020 SENT BY SRI.T.D.RAMAKRISHNAN TO THE OFFICIAL E-MAIL ADDRESS OF HE 3RD RESPONDENT ACADEMY. EXHIBIT R1(h) A TRUE COPY OF THE GOVERNMENT ORDER DATED 08/09/2020 ISSUED BY THE ADDITIONAL SECRETARY, GOVERNMENT OF KERALA.** **EXHIBIT R6(a) TRUE COPY OF THE GOVERNMENT ORDER DATED 12.08.2016, ISSUED BY THE 4TH RESPONDENT. EXHIBIT R6(b) TRUE COPY OF THE RELEVANT PAGE OF THE MINUTES OF THE GENERAL COUNCIL MEETING OF THE 3RD RESPONDENT, HELD ON 6TH DECEMBER, 2016.** WPC No.18427/2020 : 21 : - **EXHIBIT R6(c)** - **EXHIBIT R6(d)** **TRUE COPY OF THE RELEVANT PAGES OF THE MEMORANDUM OF ASSOCIATION AND RULES OF THE 3RD RESPONDENT** - **TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING OF THE EXECUTIVE BOARD OF THE 3RD RESPONDENT, HELD ON 05.12.2019.** - **EXHIBIT R6(e) TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING OF THE EXECUTIVE BOARD OF THE 3RD RESPONDENT, HELD ON 18.01.2019.** - **EXHIBIT R6(f) TRUE COPY OF THE SCREENSHOT OF THE MESSAGE SENT BY THE 2ND RESPONDENT/ CHAIRMAN TO THE 6TH RESPONDENT ON 26.02.2020.** - **EXHIBIT R6(g) TRUE COPY OF THE SCREENSHOT OF THE MESSAGE SENT BY BINA PAUL, THE VICE CHAIRPERSON, TO THE 6TH RESPONDENT, ON 18.02.2020.** - **EXHIBIT R6(h)** - **TRUE COPY OF THE LETTER DATED 02.03.2020,ENCLOSING THE DRAFT LIST OFJ URY MEMBERS, SUBMITTED TO THE GOVERNMENT.** - **EXHIBIT R6(i) TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING OF THE EXECUTIVE BOARD OF THE 3RD RESPONDENT, DATED 13.02.2017.** - **EXHIBIT R6(j) TRUE COPY OF THE RELEVANT PAGES OF THE JURY REPORT OF THE KERALA STATE FILM AWARDS, 2018.** - **EXHIBIT R6(k) TRUE COPY OF THE REPRESENTATION DATED 12.03.2020 SUBMITTED BY THE 6TH RESPONDENT TO THE MINISTER FOR CULTURAL AFFAIRS.**