The Leaflet

| @theleaflet_in | August 29,2019

[dropcap]T[/dropcap]HE Delhi High Court has allowed the release of controversial Punjabi film ‘Kaum De Heere’ (Gems of the community) which was slated to be released in August 2014. The film allegedly features assisination of former Prime Minister Indira Gandhi.

Said to be based on the events that followed the Army’s storming of the historic Golden Temple in Punjab during operation blue star in 1984, the film features the characters of Satwant Singh and Kehar Singh, who were the main accused in the assassination of the then Prime Minister Indira Gandhi.

However, an uncut version of the movie is already available on YouTube.

Maintaining that the film depicted historical events and the sentiments of the Sikh community and concluded with the hanging of the persons accused of assassinating the then Indian Prime Minister, the makers of the film, Sai Cine Productions had earlier moved the High Court against an August 2014 order passed by the Central Board of Film Certification (CBFC) withdrawing the ‘A’ certificate issued to film in the same year. The Film Certification Appellate Tribunal (FCAT) in an October 2014 order had also rejected the petitioner’s appeal.

Pertinently, in August 2014, the Ministry of Home Affairs had written to the Secretary, Ministry of Information and Broadcasting, stating that certain organizations in Punjab were opposed to the screening of the film and could hold protests demonstrations outside cinema halls in the wake of its release.

After viewing a special screening of the film, the Ministry of Home Affairs had said the film was likely to cause a serious law and order problems, believing it could trigger conflicting sentiments among the people and further cause disaffection amongst the armed forces.

The ministry also noted that the film had taken liberties with the Supreme Court’s decision in the matter of Kehar Singh and Ors vs State (Delhi Admn.).  The Ministry of Information and Broadcasting was thus requested to take immediate action.

Observing that the film encouraged the idea of taking the law into one’s own hands and put the interest of a community above national harmony, the CBFC had withdrawn its certificate.

The petitioner, represented by senior advocate Colin Gonsalves with advocate Anupradha Singh, had contended before the High Court that the order was passed at the behest of the central government, which had no authority to issue such directions. This claim was however rebutted by the CBFC, which claimed that the government had the power under Section 6(2) of the Cinematograph Act, 1952 to direct that a film, which has been granted certification, be deemed to be an uncertified film in any part or across the country.

The petitioner had also submitted that the film did not violate any guidelines and withdrawal of certification was violative of Article 19(1)(a) of the Constitution of India.

The court observed that under section 6(1) of the Cinematograph Act, the central government has power to call for the records of any proceedings in relation to any film, which is pending before or has been decided by CBFC or FCAT.

“The Central Government is then required to make such inquiry into the matter as it considered necessary and thereafter, make an order in relation thereto as it deems fit. CBFC was also required to dispose of the matter in conformity with any such order,” the court said.

However, the proviso to Section 6(1) mandated 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, it added.

The court further observed that in the present case, the Central Government had not even passed any order under Section 6(1) requiring the Board (CBFC) to act in conformity with such orders.

The court further relied upon the decision of the Supreme Court in Union of India v. K.M. Shankarappa to state that Section 6(1) of the Act, insofar as it enabled the Central Government to exercise the power of revision against the decision of CBFC and FCAT, was declared violative of the basic structure of the Constitution.

The court noted that once an expert body has considered the impact of a film on the public and has cleared the film, it is for the state government concerned to see that law and order is maintained.

It further observed: “..even if Section 6(1) of the Act was operative, the respondents had not followed the procedure as contemplated therein. The petitioner was not granted any opportunity to represent its views before the direction was issued. Further, Section 6(1) of the Act also does not contemplate the issuance of any direction to the Chairperson of CBFC.”

Since the revisional powers in favour of central government in respect of decisions of the CBFC and FCAT were declared unconstitutional, the court remarked that Rule 32 was also wholly inapplicable.

While there was no notification under Section 6(2) by the central government, the court did not consider it necessary to examine the issue further. The central government has nonetheless clarified that it has retained the power to pass orders in terms of under Section 6(2) of the Act.

The petition was accordingly allowed and the CBFC and FCAT orders were set aside by Justice Vibhu Bakhru .

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