K. GANESHAN Vs. FILM CERTIFICATION APPELLATE TRIBUNAL

JUDGEMENT

(1.) The Writ Petitioner, a native of Bangalore, claims to be a professional Film Director having directed six Kannada films, which were box office hits. In the Writ Petition, he challenges the order passed by the Central Board of Film Certification (CBFC), refusing to grant certification to a feature film in Tamil directed by him, titled "Porkalathil Oru Poo", portraying the life of a Journalist in Sri Lanka Ms. Isai Priya, which order was confirmed in appeal by the Film Certification Appellate Tribunal (FCAT). The third and fourth respondents in the Writ Petition are the sister and mother of the said Ms.Isai Priya. The petitioner claims to having been inspired to make the film after watching a telecast by a London based TV network called 'Channel-4' which telecast ed inhuman atrocities and barbaric acts committed by the Sri Lankan Army personnel on Ms.Isai Priya, which ultimately led to her tragic demise. The petitioner claims to have gathered details of Ms.Isai Priya and her family background and that the family of Ms.Isai Priya was involved in the freedom movement of Tamil Eelam; she was married and she had a girl child, she was an Orator, Dancer, Singer and a Poet and she joined a Tamil Television Channel in Sri Lanka and worked as a News Reader. The petitioner would further state that on account of the atrocities committed by the Sri Lankan Army during 2009, which resulted in a war like situation, Ms. Isai Priya's child died due to starvation and she is said to have arranged for the clandestine exist of her family members from Sri Lanka, while she chose to remain there. According to the petitioner, since the Tamil Television Channel in which Ms.Isai Priya was working, was telecasting information about the atrocities committed by Sri Lankan Army, she was personally targeted and illegally picked up from her house, subjected to inhuman treatment and was gang raped and ultimately died. The petitioner is said to have narrated the "story", to Mr.J.C.Gurunadh Chalasani who was interested in producing the film and that is how the petitioner states that he shot the film "Porkalathil Oru Poo". The film opens with the scene showing the Honourable Chief Minister Dr.Selvi J. Jayalalitha and referring to a resolution passed by the Tamil Nadu State Legislative Assembly on 27.03.2013, purportedly to protect the interest of the Sri Lankan Tamils and to eschew violence against them. An application was preferred before the CBFC on 06.05.2015 for certification of the film under the provisions of the Cinematograph Act, 1952, (hereinafter referred to as the 'Act'). The Examination Committee of the CBFC viewed the film on 11.05.2015 and it appears that the Regional Officer had informed the petitioner that there are objectionable materials in the film and she will not permit the film to be certified. The matter was thereafter placed before the Revising Committee, which viewed the film on 22.05.2015, after which the impugned order dated 25.05.2015, was passed, refusing certification. The reasons for refusing certification as stated in the impugned order is that the film criticise the Indian country and Sri Lankan Army and justifies Tamil Eelam by LTTE, a banned outfit; the film shows brutal gang rape, killing of LTTE Journalist Ms.Isai Priya and it contains too much of violence; the film is based on incidents of a LTTE Journalist; the map shows a separated Tamil Eelam by LTTE and the last two reels deal with brutal inhuman killing and rape. Thus, the CBFC concluded that the film violates various clauses of the Guidelines for Certification of Films for Public Exhibition namely, clauses (2)(xvi)-friendly relationship with foreign states are not strained, 2(ix)-scenes degrading or denigrating women in any manner are not presented; 2(x)-scenes involving sexual violence against women like attempt to rape, rape or any form of molestation of scenes of a similar nature and 2(xi) scenes showing sexual perversions. On appeal to the Tribunal (FCAT) under Sec. 5C of the Act, the film was viewed on 23.06.2015 and the petitioner was given an opportunity to putforth his submissions and he is stated to have agreed to certain cuts and also to mute certain dialogues, after which, once again the film was viewed on 06.08.2015 and the FCAT rejected the appeal by order dated 31.08.2015, holding that the film which depicts the freedom struggle for an independent Tamil Eelam by LTTE, terrorist outfit banned by 30 countries in the world, is still replete with terrorism, violence, sexual perversions and degradation of women, which reflect adversely of the Sri Lankan Administration and Army and is therefore, likely to affect the friendly relations of India with Sri Lanka, apart from violating the guidelines mentioned in the order of the Revising Committee. The order passed by the CBFC as confirmed by the FCAT are impugned in this Writ Petition.

(2.) The respondents 3 and 4, sister and mother of Ms. Isai Priya, have filed C.S.No.971 of 2015, in which the first plaintiff is the fourth respondent (mother), the second plaintiff is the third respondent (sister) and Writ Petitioner, the first defendant, the second defendant is the producer of the film and the third defendant is CBFC. The suit is for grant of a decree of permanent injunction restraining the defendants 1 and 2 (Writ Petitioner and Producer) from releasing, publishing, exhibiting, publicly or privately, selling, promoting or advertising or entering into the film festivals or in any manner producing in any format film, drama, serial or any other literary or artistic expression in respect of the life of Sobha @ Isai Priya and/or her family members, their direct descendants without the consent of the plaintiffs. The plaintiffs have sought for an interlocutory relief in O.A.No.1306 of 2015, for a grant of interim injunction to restrain the Writ Petitioner and the Producer from releasing, publishing, etc., the life of Sobha @ Isai Priya and or her family members, their descendants without the consent of the plaintiffs. In this order, the respondents 3 and 4 in the Writ Petition shall be referred to as the plaintiffs.

(3.) The plaintiffs have filed the suit along with an application for interim relief primarily on the ground that the film produced by the Writ Petitioner is not a feature film, but a commercial venture with the sole object of making money with no personal research done by the petitioner, but purely said to have been motivated by watching a TV Channel and the movie infringes the privacy of the plaintiffs, the family members of Ms. Isai Priya and their descendants. The plaintiffs are Sri Lankan refugees, presently residing in United Kingdom having left their country i.e., during the last phase of war during 2009 as there was no scope for their life. Through the media, the plaintiffs came to know that the Writ Petitioner is propagating, publishing and advertising and depicting the real life of Ms.Sobha @ Isai Priya in the movie called "Porkalathil Oru Poo". The plaintiffs state that Ms.Isai Priya has been portrayed as a militant and the theme of the movie is entirely based on plaintiffs' family members and they are the characters in the film. That significant number of Tamils and Sri Lankans have become diasporas and living as the refugees all over the world without enjoying full human rights as defined under the International charters and conventions. Ms.Isai Priya's identity and name has been used by the petitioner for commercial purpose. It is the petitioner's own creation and imaginary commercial story and he has done so, only for the personal gain. The plaintiffs are said to have contacted the Writ Petitioner over phone and requested him not to picturize the film, but he did not heed to their request. The plaintiffs state that they are war widows and the second plaintiff is living with three children and they fear that the release of the movie will cause irreparable injury not only to the plaintiffs, but also to the children of the second plaintiff, who have every right to live in the world in peace and in good atmosphere. While resolutions are pending before the United Nation Organisation(UNO) and the United Nations Human Rights Commission(UNHRC), the release of the movie containing false portrayal would have a serious implication on the plaintiffs' family members and would make their situation worse in the International domain and adversely affect the issues which are pending before UNO/UNHRC. Therefore, the plaintiffs would state that the movie may cause prejudice to them and their family, that the attempt of the Writ Petitioner is to exploit a human tragedy for commercial gain and it is insensitive assault on people, whose life have been crippled with collective agony of loss, defeat and hopelessness. Referring to Art. 12 of the Universal Declaration of Human Rights, 1948, it is stated that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence or to attacks upon his honour and reputation. Every one has the right to protection of the law against such interference or attacks.