‘S Durga’ Case: Kerala HC Holds That CBFC Has Power To Prohibit Public Exhibition Of Films For Re-Examination [Read Judgment]

The High Court of Kerala has held that the Central Board of Film Certification (CBFC) has the power to re-examine a certified film, and to prohibit public exhibition of the film till such re-examination, in order to ascertain whether the film was complying with the conditions of certification. The decision was rendered in the writ petition filed by the makers of film S Durga , against the order passed by the CBFC on 28 November 2017, stating that film should not be publicly exhibited as it required re-examination.

They alleged that the order was issued with the mala-fide intention of preventing the exhibition of the film in International Film Festival of India held at Goa from 20 to 28 November. It may be recalled that the director of the film, Sanal Kumar Sasidharan, had earlier approached the high court of Kerala challenging the exclusion of the film from IFFI. He had contended that the film was arbitrarily excluded by the Ministry of Information and Broadcasting, despite the IFFI jury selecting it.

On 21 November, 2017, a single bench of the high court had ordered that the certified version of the film S Durga should be exhibited in the IFFI. Although appeal was filed by the Ministry of I&B, the division bench did not grant any stay of the direction of the single bench.

On 28 November, the CBFC issued the order, stating that it had received complaints regarding the title of the film. It was stated in the order that the title was shown in the film as S### Durga (where ‘# stands for white rectangular boxes), and that it was contrary to the certified title S Durga. Therefore, the CBFC stated that it wanted to re-examine the film and till then directed that the film should not be exhibited.  Due to the said order passed by the CBFC, the film was not exhibited in the IFFI.

The makers of the film challenged the order contending that the CBFC had no power under the Cinematograph Act 1952 to issue such directions. It was contended that the order in effect operated as a suspension of certificate, which can be done only by the Central Government under Section 5E of the Act. It was also contended that as per Rule 32 of the Cinematograph Rules, the CBFC had to forward the complaints to the Central Government, and the order could have been passed only by the Central Government, that too with prior notice to the makers. Apart from alleging such procedural violations, they also contended that there was no basis for issuing the order. It was contended that the name was changed as S Durga as per the directions of CBFC, and the objectionable alphabets were covered with white boxes. It was also asserted that there was no alteration or variation from the certified version. According to them, the order was issued with the mala-fide intention to get over the directions of the high court to exhibit the film in the IFFI.

The CBFC justified its order stating that it had powers to re-examine a film if it forms the opinion that the film was violating the conditions of certification. It was stated that the film was being promoted as S### Durga, thereby, mischievously alluding to the original title. It was in that backdrop that the CBFC felt it necessary to re-examine the film.

Justice Shaji P Chaly, the single judge who dealt with the matter, sustained the order passed by CBFC by tracing its powers to Rule 33 of the Cinematograph(Certification) Rules and held that sufficient powers are vested with the CBFC to take appropriate action. So, it was observed that the order was not suffering from any arbitrariness, illegality or unfairness.

However, the court also observed that permission should be granted at the earliest possible time for public exhibition of the film, if the makers were confining themselves to public exhibition as per certification granted. The entire exercise was directed to be completed within three weeks.