Delhi HC Restores Certification For "Kaum De Heere", Featuring Assassinators Of Former PM Indira Gandhi [Read Judgment]

The Delhi High Court on Tuesday restored screening Certificate for Punjabi movie "Kaum De Heere", featuring assassinators of former PM Indira Gandhi.

The petition titled "Sai Cine Productions v. CBFC & Ors." was filed challenging the order of Central Board of Film Certification (CBFC) and Film Certification Appellate Tribunal (FCAT), withdrawing the film's certificate for screening.

Contentions

Senior Advocate Colin Gonsalves with Advocate Anupradha Singh submitted on behalf of the Petitioner, Sai Cine Productions that the feature film depicts historical events and sentiments of the Sikh Community at the time of storming of the golden temple and the assassination of the Indian Prime Minister in 1984.

They argued that CBFC had granted an "A" Certificate to the film on the basis of recommendation under Rule 24(12) of the Cinematograph (Certification) Rules, 1983 (the said Rules), after the Second Revising Committee viewed the film. They contended that the same could not be reviewed as CBFC did not have the jurisdiction or power to review its own decision.

"Feature film did not violate any guidelines and withdrawal of certification was violative of Article 19(1)(a) of the Constitution of India", they added. Reliance was placed on the decision of the Supreme Court in M/s Prakash Jha Productions & Anr. v. Union of India & Ors., (2011) 8 SCC 372, stating that once a feature film was certified by CBFC for public exhibition, it could not be subjected to further censorship by the Government.

Admittedly, on 21.08.2014, Ministry of Home Affairs had sent a letter to the Secretary, Ministry of Information and Broadcasting (MIB) informing him that contents of the film appeared to be contrary to certain observations made by the Supreme Court in Kehar Singh & Ors. v. State, Delhi Admn., (1998) 3 SCC 609. It was also stated that the film is likely to cause a serious law and order situation by arousing sentiments of the people and further cause disaffection amongst the armed forces. Consequently, MIB addressed a letter to the Chairperson of CBFC who then withdrew the certificate issued to the film. An appeal assailing the withdrawal was filed before the FCAT, which was also dismissed.

The Respondents, through ASG Maninder Acharya, CGSC Anurag Ahluwalia and Advocates Abhigyan Siddhant, Kartikeya Rastogi, Viplav Acharya, Harshul Chowdhryadn and Ikshita Singh submitted that the Central Government has Revisional powers under Section 6(2) of the Cinematograph Act, 1952 (the Act) and Rule 32 of the said Rules 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.

Findings

Disagreeing with the Respondents' contentions, Justice Vibhu Bakhru restored the certificate for the film. He expressed his skepticism on the communications between the government bodies in as much as it was difficult to understand how on a single date, all the communications were exchanged and the certificate was withdrawn.

With regards to Revisional powers under Section 6(2) of the Act, the court noted that "the proviso to Section 6(1) of the Act mandates 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". In the present case however, the Petitioner was not granted any opportunity to present his case prior to issuing any such order.

"Section 6(1) of the Act, insofar as it enables the Central Government to exercise the power of revision against the decision of CBFC and FCAT, is violative of the basic structure of the Constitution…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…Rule 32 of the said Rules has little application…", the court continued in view of the decision in Union of India v. K.M. Shankarappa, ILR 1990 KAR 4082,

Based on these observations, the court decided in favour of the Petitioner and set aside the impugned orders of CBFC and FCAT, stating that "reliance placed by the respondents upon Section 6(1) of the Act, is wholly misplaced. First of all, the said provision to the extent that it enables the Central Government to exercise revisional powers in respect of the decisions rendered by CBFC, has been held to be unconstitutional. Second, even if Section 6(1) of the Act was operative, the respondents had not followed the procedure as contemplated therein". 

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