2007 Supreme(SC) 495

2007(3) Supreme 855
SUPREME COURT OF INDIA
(From Bombay High Court)
Tarun Chatterjee and R.V. Raveendran, JJ.
Directorate of Film Festivals & Ors. — Appellants
versus
Gaurav Ashwin Jain & Ors. — Respondents
Civil Appeal No. 1892 of 2007
(Arising out of S.L.P. (C) No. 19706 of 2006)
Decided on 11-4-2007
Counsel for the Parties :
For the Appellants : Vikas Singh, A.S.G., Ms. Indra Sawhney and V.K. Verma, Advocates.
For the Respondents : Prashant Bhushan, Ms. Indira Unninayar and Ms. Parul Kaur Majethia, Advocates.

IMPORTANT POINT
The requirement that films should have been certified by the Central Board of Film Certification for entry for the 53rd National Film Awards is not an unreasonable restriction of any fundamental right of the film makers.

Headnote:(i) Cinematograph Act, 1952 — Sections 3, 4, 5A and 5B — National Film Awards Regulations — Reg. 10 — Constitution of India — Articles 19(1)(a) and 14 — Entries for National Film Awards — Eligibility criteria prescribed by the Directorate for non-feature films — Requirement of a certificate by the Central Board — Challenged as violative of Articles 14 and 19(1)(a) of the Constitution — High Court allowed the writ petition holding that the requirement relating to certification by Board in respect of film makers other than Film Institutes and Doordarshan amounted to hostile discrimination — It held that the words ‘and certified by the Central Board of Film Certification’ in Regulations 10(d) and (e) were violative of Article 14 and void — Whether restricting the entry, for National Film Awards, to only films certified by the Central Board of Film Certification, is an unreasonable restriction on the fundamental right of film makers, violative of Article 19(1)(a) of the Constitution — (No) — It is not an unreasonable restriction of any fundamental right of the respondents or other film makers.

       Held : Under the Cinematograph Act, 1952, a film can be released for public exhibition only if it has been examined and certified by the Central Board of Film Certification as being suitable for public exhibition under the categories ‘unrestricted’ or ‘restricted to adults’ or ‘restricted to members of any profession or class of persons’. The decision to consider for awards, only those films which are certified by the Board for public exhibition is a policy of the Ministry. This policy has two underlying objectives. The first is to consider only films which have been released or capable of being released for public exhibition. The second is to consider the films in the form in which they will be seen by the public. (Para 12)

       The right of a film maker to make and exhibit his film, is a part of his fundamental right of freedom of speech and expression under Article 19(1) (a) of the Constitution. A film is a medium for expressing and communicating ideas, thoughts, messages, information, feelings and emotions. It may be intended either for public exhibition (commercial or non-commercial) or purely for private use. The requirement under sections 4 and 5A of the Act relating to certification by the Board, where the film is intended for public exhibition, by applying the guidance principles set out in section 5B, is a reasonable restriction on the exercise of the said right of speech and expression contemplated under Article 19(2), and therefore, constitutional. But the question here is not whether the requirement that films can be released for public exhibition, only if they possess a certificate issued by the Central Board of Film Certification, is a reasonable restriction. The question is whether the Government can impose a condition that the entry of films for awards will be restricted to only those which possess a certificate issued by the Board under section 5A of the Act. Whether the government should encourage the production of films with aesthetic and technical excellence and social relevance, whether such encouragement should be by giving awards periodically or annually, and if it decides to give such awards, whether the field of competition should be restricted only to films which have been certified by the Board, are all matters of policy of the Government. (Para 13)

       The Government’s policy for National Film Awards is to restrict entry to only those films which have been certified by the Board for exhibition, that is films intended for public exhibition. The government is not interested in evaluating or giving an award to a film which may never be seen by the public, or at all events never be seen in an ‘uncensored’ form. Its object is to select the best from among those which the public can see and enjoy or gain knowledge. The said policy neither relates to nor interferes with the right of a film maker either to make films, or to apply for certificate or to exhibit the films. There is nothing illogical, unreasonable or arbitrary about a policy to select only the best from among films certified for public exhibition. We cannot, in judicial review, change that policy by requiring the Government to select the best from among ‘films made’ instead of ‘films made and certified for public exhibition’. We, therefore, hold that the requirement that films should have been certified by the Central Board of Film Certification between 1.1.2005 and 31.12.2005 for entry for the 53rd National Film Awards is not an unreasonable restriction of any fundamental right of the respondents or other film makers. (Para 15)

       (ii) Cinematograph Act, 1952 — Sections 3, 4, 5A and 5B — National Film Awards Regulations — Entries for National Film Awards — Eligibility criteria prescribed for non-feature films — Directorate having permitted entry of films in an uncensored format for awards in Non-Commercial Film Festivals — Whether requirement relating to certificate from the Central Board of Film Certification in regard to entry for National Film Awards is discriminatory — (No).

       Held : The Government can no doubt make a policy permitting entry to all films including those which have not obtained certificates from the Board, for National Film Awards. But that is a matter to be decided by the Government. The question is not whether films should be permitted to be entered for National Film Awards, in an uncensored form. The question is whether the Government’s policy restricting entry to only films certified by the Board is so unreasonable or manifestly arbitrary as to warrant interference in Judicial review. Nothing prevents the Government from having different policies for National Film Awards and for Film Festivals. (Para 17)

       The High Court wrongly proceeded on the assumption that the objects of the Film Festivals and National Film Awards are the same and therefore when permission was granted for entering films in Film Festivals without certification by the Board, a similar treatment should be extended to entries for the National Film Awards. The object of Film Festivals and the object of National Film Awards are different. Film Festivals are held, to provide a platform for film makers from all over the world to meet, exchange ideas, explore the possibility of co-production, market films and to broaden the vision of film makers. On the other hand, the object of National Film Awards is to encourage the production of films of aesthetic and technical excellence and social relevance, which will contribute to the understanding and appreciation of cultures of different regions of the country and promote national integration and unity. When the purpose and object of Film Festivals and National Film Awards are completely different, the conditions that are made applicable, or the exemptions that are granted, in respect of Film Festivals, cannot automatically be applied to National Film Awards. The two being unequal and dissimilar, the question of applying the same standards or norms does not arise. Nor can application of different norms to Film Festivals and National Film Awards, lead to a complaint of discrimination. Applying different yardsticks to different events, to achieve different objects cannot be considered as discriminatory. (Para 18)

       (iii) Cinematograph Act, 1952 — Sections 3, 4, 5A and 5B — Constitution of India — Article 14 — Entries for National Film Awards — Exempting films made by Film Institutes and films entered by Doordarshan from the requirement of certification by the Board, while requiring certification by the Board in case of others — Challenged as discriminatory, violating Article 14 of the Constitution — Whether exemption in respect of films made by Film Institutes and films entered by Doordarshan entitles others also to claim a blanket exemption in respect of all films to be entered in National Film Awards — (No) — High Court has to first examine whether the petitioner who has approached the Court has established a right, entitling him to the relief sought — A film maker can challenge an illegal exemption in favour of Film Institutes and Doordarshan under clauses (f) and (g) of Regulation 10, but cannot claim a similar exemption by placing reliance on such illegality — Exemption in favour of Film Institutes and entries made by Doordarshan held illegal.

       Held : When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law. (Para 20)

       In this case, we have already found that the NFA policy restricting the entry to only films certified by the Board is valid and does not violate Article 19(1)(a). It therefore follows that a film maker does not have any right to claim that he is entitled to enter his films without certification by the Board. When a film maker complains of discrimination on the ground that films made by Film Institutes and films entered by Doordarshan have been exempted from the requirement of certification, and claims similar exemption, the question that requires examination is whether the exemption that has been granted to Film Institutes and Doordarshan is legal. If it is illegal, he cannot claim a similar illegal exemption in his favour. (Para 21)

       There are innumerable Film Institutes and several Doordarshan Kendras. The exemptions in favour of films made by Film Institutes and films entered by Doordarshan will amount to recognizing the Heads of such Institutes or institutions as equal to Central Board for Film Certification and entrusting the Heads of such institutions with the power of Central Board for film certification. Appellants have not placed any material justifying reposing of such confidence in persons other than the Central Board for Film Certification. Nor can such parallel authorities be recognized, having regard to the provisions of the Cinematograph Act. Further exemption under Regulations 10(f) and (g) cannot be equated to exemption under section 9 of the Act. We are, therefore, of the view that exemptions in favour of Film Institutes and entries made by Doordarshan were illegal and other film makers cannot claim similar exemption. (Para 25)

       A film-maker can challenge an illegal exemption in favour of Film Institutes and Doordarshan under clauses (f) and (g) of Regulation 10, but cannot claim a similar exemption by placing reliance on such illegality. Therefore the challenge to the words “and certified by the Central Board of Film Certification” in Regulation 10(d) and (e) has no merit. The respondents have not challenged the validity of Regulation 10(f) and (g) granting exemption to films made by Film Institutes or films entered by Doordarshan. Therefore, no relief can be granted to respondents in that behalf. (Para 26)

       (iv) ADMINISTRATIVE LAW — Government Policy — Scope of judicial review — Held, Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy — Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.

       Held : The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. (Para 14)