In the High Court of Delhi, at New Delhi

IN THE SUPREME COURT OF INDIA

(CIVIL ORIGINAL JURISDICTION)

WRIT PETITION (CIVIL) NO. ______OF 2011

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF

1. M/s. Prakash Jha Productions, 201 C-D, ]

Abhishek, Off New Link Road, Andheri ]

(West), Mumbai 400 053 through its ]

proprietor ]

2. Prakash Jha, Producer and Director, 201 ]

C-D, Abhishek, Off New Link Road, ]...Petitioners

Andheri (West), Mumbai 400 053

-Versus-

1. Union of India ]

Through Secretary ]

Ministry of Information and Broadcasting ]

A- Wing, Shastri Bhawan ]

New Delhi-110001 ]

2. Department of Entertainment Tax ]

State of Uttar Pradesh ]

3. Principal Secretary to Government ]

Department of Home Affairs & Justice ]

State of Punjab ]

4. Principal Secretary to Government

Ministry of Home Affairs ]

State of Andhra Pradesh ]…Respondents

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF

INDIA

THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS LORDSHIP’S COMPANION JUSTICES

OF THE SUPREME COURT OF INDIA.

THE HUMBLE PETITION OF THE

PETITIONERS ABOVENAMED

MOST RESPECTFULLY SHEWETH:

1. The Petitioners are filing the present Writ Petition under Article

32 of the Constitution of India for issuance of a Writ in the

nature of Certiorari seeking quashing and setting aside of the

Impugned Orders issued by Respondent Nos.2 to 4 banning /

suspending the exhibition of the Petitioners’ Film “Aarakshan”

starring Amitabh Bachchan, Saif Ali Khan and Deepika

Padukone in the states of Uttar Pradesh, Punjab and Andhra

Pradesh respectively (the aforesaid directions issued by

Respondent Nos.2 to 4 shall be collectively referred to as

“Impugned Orders”) and/or a writ in the nature of Mandamus

for a direction to the Respondent No.2 to 4 to provide adequate

police protection to the Petitioners for public exhibition of the

Film in all theatres and multiplexes in their respective states.

2. QUESTIONS OF LAW

The present petition raises the following important questions of

law for general public importance:

A. Whether the Central Board of Film Certification, the

statutory body constituted under the Cinematograph Act,

1952 (“Cinematograph Act”) once having certified the

Petitioners’ Film for public exhibition in accordance with

the provisions of the Cinematograph Act and Rules

thereunder, could the States ban the exhibition of the film

under their regulatory statutes of Cinemas?

B. Whether the Respondent Nos.2 to 4 could have at all

issued the Impugned Orders when the Examining

Committee of the Central Board of Film Certification

comprised of members who were drawn from the

Scheduled Caste, Scheduled Tribes and other backward

castes namely Smt. L. Meena (ST Category), Smt. J.S

Kamble (SC Category), Shri N.S Bansode (SC Category)

and Shri R. Tanawade (OBC Category), in addition to the

expert committee members including Hon’ble Justice Mr.

Mukul Mudgal (Retd), Chairperson of the Censor Board

Ms. Leela Samson, Mr. Pankaj Sharma and Dalit activist

Ms.Rajni Tilak, had cleared the film for exhibition?

C. Whether the Respondent Nos.2 to 4 could at all issue the

Impugned Orders in view of the ratio laid down by the

Apex Court in the case of S. Rangarajan vs. P Jagjevan

Ram & Ors. and Union of India & Ors. vs. P. Jagjivan

Ram & Ors. [(1989) 2 SCC 574] holding that open

criticism of the Government policies and operations is not

a ground for restriction on expression views even in the

form of films?

D. Whether the Impugned Orders issued by Respondent

Nos.2 to 4 violates the Petitioner’s fundamental rights

under 19(1)(a) of the Constitution of India?

E. Whether the Respondent Nos.2 to 4 could at all seek to

rely upon Article 19(2) of the Constitution of India for

banning the film “Aarakshan” of the Petitioner?

F. Whether the Impugned Orders issued by the Respondent

Nos.2 to 4 could at all be issued only on the basis of the

title of the movie with the presumption that the Petitioner’s

Film is anti-reservation and was likely to disturb law and

order?

G. Whether the States can impose restrictions on a citizen’s

exercise of artistic expression in a respectful manner

relating to the policies of Government?

H. Whether the States of the Union of India can at all restrict

the exhibition of a film, once the film has been certified by

the Censor Board for exhibition because otherwise it

would result in an absurd situation and the States would

employ their uncanalised power to restrict the exhibition

of films arbitrarily in breach of fundamental rights of the

producer and even the cinema goer?

It is submitted that the above questions arise for consideration

and determination by this Hon’ble Court, which has so far not

been dealt with by this Hon’ble Court.

3. FACTS OF THE CASE

Brief facts leading to the filing of the present Writ Petition are

briefly stated hereinafter:

3.1 The Petition arises out of the Impugned Orders issued by

Respondent Nos.2 to 4 respectively restricting / suspending /

banning the release and screening of the Said Film in their

respective states as under (the aforesaid directions of

Respondent Nos.3 and 4 shall hereinafter be referred to as

“Impugned Orders” collectively):

a) Order dated 10th August, 2011 passed by Respondent No.2

under section 6 (1) of the UP Cinemas (Regulation) Act,

1955 suspending the exhibition of the Said Film in the state

of Uttar Pradesh for a period of two months from the date of

Order.

b) Order dated 10th August, 2011 passed by Respondent No.3

banning the screening of the Said Film in the State of Punjab

until screening of the Said Film before the Committee

constituted for the said purpose on 11th August, 2011.

c) Order dated 11th August, 2011 passed by Respondent No.4

under Section 8 of the A.P Cinema (Regulation) Act, 1955

thereby suspending the exhibition of the Said Film initially for

a period of one week or until a final decision is taken on

receipt of the report of the Committee constituted for the said

purpose.

3.2 Petitioner No.2 is a reputed Indian film producer-director-

screenwriter, who is most known for his political and socio-

political films such as Damul (1984), Mrityudand (1997),

Gangaajal (2003), Apaharan (2005) and multi starrer hit movie

Rajneeti (2010). He is also the winner of ten National Film

Awards including documentaries like ‘Faces After The Storm’

(1984) and ‘Sonal’ (2002). Petitioner No.2 has received

immense appreciation for all his films. Infact, it is emphatically

stated that the film “Damul” won the “Golden Lotus” award,

which is the highest national award for a feature film, which

portrays the prosecution of a dalit at the hands of a high caste

landlord. The film “Mrityudand” also deals with the issue of dalit

prosecution in which one of three protagonists is a dalit woman.

Therefore, Petitioner No.2 has always been compassionate

towards the cause of the backward dalit caste and the same is

amply demonstrated through his films.

3.3 The Film uses the issue of reservation only as a landscape or

backdrop on which the story and journey of the protagonist, who

is the principal of an institution, is based. The Film highlights the

commercialization of education system in the present society.

The Film is not anti-reservation and/or anti-dalit.

3.4 The Petitioners commenced production of the Film in

December, 2010. The story and screenplay of the Film was

registered on 22.6.2010 by Film Writers Association in favour of

Petitioner No.1. The title of the film “Aarakshan” was registered

by Association of Motion Pictures & T.V Programme Producers

(AMPTPP) in favour of Petitioner No.1 on 11.7.2011. The title

“Aarakshan” has been applied for registration before the

Trademarks Registry in favour of the Petitioner No.1. The

Petitioners crave leave to refer to and rely upon the aforesaid

registration certificates as and when produced.

3.5 The Film and its subject matter are being publicized since the

commencement of production of the Film. The Film is scheduled

for theatrical release throughout the country on 12th August,

2011. The first promo of the Film was released on internet

platform on 10th June, 2011, theatrical trailor was released on

24th June, 2011 and on television platform it was released on

was 10th July, 2011. The Petitioners crave leave to refer to and

rely upon the press articles in respect of the Film and its subject

matter as and when produced.

3.6 The Petitioners have expended significant amount in the sum of

Rs.65 crores towards production, publicity and marketing costs

of the Film. The Petitioner No.1 has created third party rights for

distribution and exploitation of the Said Film.

3.7 The Petitioners had submitted their Film and 35 promos of the

Film to the Central Board of Film Certification (“Censor Board”)

for certification in accordance with the provisions of

Cinematograph Act on 12th July, 2011.

3.8 Chairperson of Censor Board Ms. Leela Samson, in accordance

with the provision of Rule 41 (4) (c) of the Cinematograph

(Certification) Rules, 1983 (“Said Rules”), the Censor Board

decided to set up a committee of experts who were especially

flown down from Delhi to examine the Film. Hon’ble Retired

Chief Justice of Punjab & Haryana Court Mr. Mukul Mudgal, and

Dalit activist Ms.Rajni Tilak were the expert committee members

who were flown from Delhi to preview the Said Film.

3.9 The Examining Committee further comprised following four

members drawn from the Scheduled Caste, Scheduled Tribes

and other backward castes:

(a) Smt. L. Meena (ST Category)

(b) Smt. J.S Kamble (SC Category)

(d) Shri R. Tanawade (OBC Category)

3.10 As per Rule 22 (7) of the Rules Pankaja Thakur, the Regional

Head of the Said Rules, Chairperson of the Censor Board

nominated a board member who was asked to remain present

during the preview of the Said Film. After the screening of the

film was completed, the Examining Officer on behalf of the

Screening Committee asked two experts to give their opinion

whether the film as a whole or any part thereof violates the

provisions of SC/ST Act or sentiments of any particular

community or class were deliberately or otherwise hurt. Both the

experts opined in the negative hence the Examining Committee

decided to give U/A certificate to the Said Film under the theme

category “social”.

3.11 Drawing on people who specialize in issues related to backward

castes and taking people from the community itself to examine

the Film is a very unusual and unprecedented move on the part

of the Censor Board. The trailor of the Film was certified for

public exhibition on 15th June, 2011. The Censor Board has

passed its verdict and the Film has been given a U/A certificate

in accordance with the provisions of Cinematograph Act and

Rules thereunder on 20th July, 2011. The Petitioners have taken

abundant care and caution with regard to censorship of the Film

and its promos. Each and every promo including a 20 seconds

promo was submitted to the Respondent No.2 for certification in

accordance with the Cinematograph Act and the same has been

duly certified for public certification. Hereto annexed and

marked ANNEXURE P1, is the censor certificate duly issued by

Censor Board in respect of the Film and the promos of the Film.

The Petitioners crave leave to refer to and rely upon the

censored promos and Film as and when produced.

3.12 In this regard, it is relevant to note that pursuant to

commencement of promotion and publicity of the Film, on 28th

July, 2011 two practicing advocates describing themselves as

converted Buddhists and deemed to be Scheduled Castes had

filed Writ Petition No.6029 of 2011 in the Hon’ble Bombay High

Court based on an apprehension that the film is anti-reservation

and is likely to disturb public tranquility, law and order. Amongst

others, the Censor Board and the Principal Secretary (Home),

State of Maharashtra were also joined as a party to the said

petition. It is pertinent note that after hearing the parties to the

Writ Petition at length, the Hon’ble Bombay High Court by their

orders dated 09th August, 2011 rejected the Petitioner’s request

for screening of the Said Film before its scheduled release and

/or for banning the exhibition of the Said Film. The operative

part of the orders dated 09th August, 2011 is as under:

“For the reasons stated hereinabove, we are of the view that the

prayer made by the Petitioners for issuance of direction to the

Respondents to arrange for a special screening of the film

“Aarakshan” before its release, which is due on 12.08.2011,

being wholly misconceived and devoid of merit, the same is

rejected and therefore, we answer the question in the negative”

Hereto annexed and marked ANNEXURE P2 is copy of orders

dated 09th August, 2011.

3.13 The Respondent No.2 issued letter dated 03rd August, 2011

stating that the exhibition of the Film is likely to disturb public

tranquility, law and order. The Respondent No.2 had issued the

aforesaid letter in accordance with section 6 (1) of the UP

Cinemas (Regulation) Act, 1955 and directed the Petitioners to

screen the Film on 04th August, 2011 at 8 p.m for the concerned

officers of Respondent No.2 to enable them to determine

whether any part of the Film is objectionable. Hereto annexed

and marked ANNEXURE P3 is copy of the said letter dated 03rd

August, 2011.

3.14 The Petitioners by their letter dated 04th August, 2011 replied to

the aforesaid letter of the Respondent No.2 placing on record

the facts pertaining to certification of the Film for public

exhibition by Respondent No.2. By the said reply, the

Petitioners also requested Respondent No.2 to keep their

directions in abeyance. Hereto annexed and marked

ANNEXURE P4 is copy of the said letter dated 04th August,

2011.

3.15 The Respondent No.2 by their letter dated 05th August, 2011

directed the Petitioners to screen the Film on 07th August, 2011

at 8 p.m for the concerned officers of Respondent No.2 to

enable them to determine whether any part of the Film is

objectionable. Hereto annexed and marked ANNEXURE P5 is

copy of the said letter dated 05th August, 2011.

3.16 The Petitioners by their letter dated 05th August, 2011 requested

the Respondent No.2 to await the outcome of the Writ Petition

filed before the Hon’ble Bombay High Court until Tuesday, 09th

August, 2011 since the issue in the writ petition was also

regarding screening of the Said Film. Hereto annexed and

marked ANNEXURE P6 is copy of the said letter dated 05th

August, 2011.

3.17 The Petitioners by their letter dated 09th August, 2011 also sent

a copy of orders dated 09th August, 2011 passed by Bombay

High Court to the Respondent No.2. Hereto annexed and

marked ANNEXURE P7 is copy of the said letter dated 09th

August, 2011.

3.18 The Petitioners arranged for screening of the Said Film for the

officers of the Respondent No.2 on 09th August, 2011 and

pursuant to such screening, the Respondent No.2 passed Order

dated 10th August, 2011 under section 6 (1) of the UP Cinemas

(Regulation) Act, 1955 suspending the exhibition of the Said

Film in the state of Uttar Pradesh for a period of two months

from the date of Order; A copy of the order of the Respondent

No. 2 dated 9.8.2011 shall be relied upon and produced during

the course of arguments since the same is in local language

and due to paucity of time could not be translated.

3.19 The Respondent No.3 has also by its Order dated 10th August,

2011 directed the Petitioners to arrange for screening of the

Said Film for the officers of Respondent No.3 on 11th August,

2011 at 5 p.m. By the said order, the Respondent No.3 has

banned the screening of the Film in the state of Punjab until

report / review of the persons who will view the Film. As per the

direction of the Respondent No.3, the Petitioners screened the

Said Film for the officers of Respondent No.3 on 11th August,

2011 at around 5 p.m. A copy of the order of the Respondent

No. 3 dated 10.8.2011 is annexed as ANNEXURE P8.

3.20 The Respondent No.4 has also by its Order dated 11th August,

2011 passed under Section 8 of the A.P Cinema (Regulation)

Act, 1955 thereby suspending the exhibition of the Said Film

initially for a period of one week or until a final decision is taken

on receipt of the report of the Committee constituted for the said

purpose. Hereto annexed and marked ANNEXURE P9 is copy

of the said order dated 11th August, 2011. The said order is

based on the apprehension that the Said Film is likely to hurt the

feelings of weaker sections, lead to protests and agitations,

leading to the breach of peace and tranquility in the State.

3.21 The Petitioner states that Said Film has been duly certified for

public exhibition in accordance with the provisions of

Cinematograph Act and has been granted “UA” certificate by the

Censor Board. The Petitioners have duly complied with the

procedure prescribed in the Cinematograph (Certification) rules,

1983 (“Rules”) for certification of films. As per the provision of

Section 5B of the Cinematograph Act, a cinematograph film

shall not be certified for public exhibition, if in the opinion of the

authority competent to grant the certificate, the film or any part

of it is against the interests of the sovereignty and integrity of

India, the security of the state, friendly relations with foreign

states, public order, decency or morality or involves defamation

or contempt of court or is likely to incite the commission of any

offence. Therefore, the fact that the Film has been certified for

public exhibition by the Censor Board, the statutory authority

constituted under the Cinematograph Act sufficiently proves that

the Film is certified for public exhibition in accordance with law,

more particularly in compliance with 5B of the Cinematograph

Act, the Rules thereunder. In this regard it is pertinent to note

that the Respondent No.2 is a specialized body best equipped

to decide this issue.

3.22 Article 19 of the Constitution of India guarantees freedom of

speech and expression and freedom of trade amongst others

fundamental rights. Every Indian citizen has the right to freedom

of speech, expression and trade unless it is contrary to the

peace and integrity of the country. This Hon’ble Court, since the

framing of the Constitution has given an expanded meaning to

Fundamental Right and more so the right relating to speech and

expression. A cinematograph film is a medium to express one’s

opinion and is thereby inclusive of freedom of communication

and right to propagate public opinion. Freedom of expression is

13 constitutionally protected and cannot be held to ransom by an intolerant group of people like the Petitioners. This Hon’ble

Court in the case of S. Rangarajan vs. P Jagjevan Ram & Ors. and Union of India & Ors. vs. P. Jagjivan Ram & Ors. [(1989) 2

SCCC 574] has observed that the fundamental freedom under

Article 19 (1) (a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not on the quicksand of convenience or expediency. The Apex Court has further observed that open criticism of the Government policies and operations is not a ground for restriction expression and we must practice tolerance to the views of others. In this regard, it is relevant to reproduce the following observations of Hon’ble

Apex Court in the aforesaid judgment:

“49. In this case, two Revising Committees have approved the film. The members thereof come from different walks of life with variegated experiences. They represent the cross section of the community. They have judged the film in the light of the objectives of the Act and the guidelines provided for the purpose. We do not think that there is anything wrong or contrary to the Constitution in approving the film for public exhibition. The producer or as a matter of fact any other person has a right to draw attention of the Government and people that the existing method of reservation in educational institutions overlooks merits. He has a right to state that reservation could be made on the basis of economic backwardness to the benefit of all sections of community. Whether this view is right or wrong

is another matter altogether and at any rate we are not

concerned with its correctness or usefulness to the people. We

are only concerned whether such a view could be advocated in

a film. To say that one should not be permitted to advocate that

view goes against the first principle of our democracy.

50. We end here as we began on this topic. Freedom of

expression which is legitimate and constitutionally protected,

cannot be held to ransom by an intolerant group of people. The

fundamental freedom under Article 19(1)(a) can be reasonably

restricted for the purposes mentioned in Article 19(2) and the

restriction must be justified on the anvil of necessity and not the

quicksand of convenience of expediency. Open criticism of

Government policies and operations is not a ground for

restricting expression. We must practice tolerance to the views

of others. Intolerance is as much dangerous to democracy as to

the person himself.”

3.23 In the above background, any restraint on exhibition of the Film

which has been certified for public exhibition in accordance with

Cinematograph Act would violate the fundamental right of these

Petitioners guaranteed under the Constitution of India including

but not limited to the fundamental right of speech and

expression guaranteed under Article 19 (1) (a) of the

Constitution. Without prejudice to aforesaid, the Petitioners

submit that while their Film is presumed to be anti-reservation,

factually, the Film is not anti-reservation or anti-Dalit. The Film

uses the issue of reservation only as a landscape or backdrop

on which the story and journey of the protagonist, who is the 15

principal of an institution, is based. The Film highlights the

commercialization of education system in the present society.

3.24 In this regard, it would be pertinent to cite the case of In

Ramesh S/o Chotalal Dalal V/s Union of India- (1988) 1 SCC

668. In this case, the Hon’ble Chief Justice observed that our

standards must be so framed that we are not reduced to a level

where the protection of the least capable and the most

depraved amongst us determines what the morally healthy

cannot view or read. The standards that we set for our censors

must make a substantial allowance in favour of freedom thus

leaving a vast area for creative art to interpret life and society

with some of its foibles along with that is good. We must not

look upon such human relationship as banned in toto and

forever from human thought and must give scope for talent to

out them before society. In our scheme of things, the Chief

Justice noted, ideas having redeeming social or artistic value

must also have importance and protection for their growth.

3.25 This Hon’ble Court has given primacy to the film maker and

consequently artistic expression being a part of the fundamental

right of speech and expression under Article 19(1)(a) of the

Constitution. In the case of Directorate of Film Festivals and

Ors Vs. Gaurav Ashwin Jain & Ors. Reported in 2007 4 SCC

737 this Hon’ble Court has observed that “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”.

3.26 In the case of Bharat Bhawan Trust Vs. Bharat Bhawan Artists’

Association & Anr. Reported in 2001 7 SCC 630 while dealing

with the issue whether an artist could be a workman within the

meaning of Industrial Disputes Act, this Hon’ble Court while

holding that artist could not be workman observed that their

work “is a mere expression of creative talent, which is part of

freedom of expression.”

The Impugned Orders are biased and arbitrary:

3.27 In exercise of its functions under Section 5B of the Act, the

Censor Board has taken abundant precautions and constituted

a special Examining Committee comprising of persons from

Scheduled Caste, Scheduled Tribe and OBC. After considering

the observations of such persons representing the Scheduled

Caste, Scheduled Tribe, OBC and comments of Hon’ble Retired

Justice Mr. Mukul Mudgal, Chairperson of the Censor Board Ms.

Leela Samson, Mr. Pankaj Sharma and Dalit activist Ms.Rajni

Tilak who were specially flown from Delhi, the Censor Board

certified the Film for public exhibition in accordance with the

provisions of Cinematograph Act and Rules thereunder.

3.28 The Impugned Orders have therefore violated the Petitioners’

fundamental right to free speech and expression. Since the

Impugned Orders have been issued by different states in the

country, the Petitioners have approached this Hon’ble Court for

appropriate reliefs. This Hon’ble Court in the judgment of six

Judges Bench of Kharak Singh Vs. State of UP has

categorically held that: The fact that an act by the State

executive or by a State functionary acting under a pretended

authority gives rise to an action at common law or even under a

statute and that the injured citizen or person may have redress

in the ordinary courts is wholly immaterial and, we would add,

irrelevant for considering whether such action is an invasion of a

fundamental right. An act of the State executive infringes a

guaranteed liberty only when it is not authorised by a valid law

or by any law as in this case, and every such illegal act would

obviously give rise to a cause of action – civil or criminal at the

instance of the injured person for redress. It is wholly erroneous

to assume that before the jurisdiction of this Court under Article

32 could be invoked the applicant must either establish that he

has no other remedy adequate or otherwise or that he has

exhausted such remedies has the law affords and has yet not

obtained proper redress, for which once it is proved to the

satisfaction of this Court that by State action the fundamental

right of a petitioner under Article 32 has been infringed, it is not

only the rights but the duty of this Court to afford relief to him by

passing appropriate orders in that behalf”.

3.29 The Petitioners state that the provisions of section 6 (1) of the

UP Cinema (Regulation) Act, Section 6 (1) of the Punjab

Cinemas (Regulation) Act, 1952 and Section 8 of the A.P

Cinema (Regulation) Act, 1955 are redundant in view of the

provision of Section 5A of the Cinematograph Act, 1952 which

provides for certification of films for public exhibition if the

Censor Board after examining of a film in the manner prescribed

thereunder is satisfied that the Film is suitable for unrestricted

public exhibition. The provisions of these State Acts cannot over

ride the provisions of the Cinematograph Act, 1952 which is a

Central Act.

3.30 Without prejudice to aforesaid, the Impugned Order dated 11th

August, 2011 passed by Respondent No.4 is based on the

apprehension that the Said Film is likely to hurt the feelings of

weaker sections, lead to protests and agitations, leading to the

breach of peace and tranquility in the State. It is clear from the

Said Order that the Respondent Nos.4 has pre-determined the

issue and formed an opinion about the Film being anti-

reservation and have banned the Said Film in the State of

Andhra Pradesh without giving the Petitioners an opportunity of

being heard, the same being unfair, arbitrary and in violation of

principles of natural justice.

3.31 Thus the Petitioners are therefore compelled to approach this

Hon’ble Court by the present writ petition. In any event this

Hon’ble Court has jurisdiction to entertain the present petition as

the petitioners are seeking to enforce the fundamental rights.

3.32 In the nature of the circumstances narrated hereinabove, the

Petitioners are constrained to approach this Hon’ble Court by

way of the present writ petition under Articles 32 of the

Constitution of India and are entitled to the appropriate writ or

direction whereby this Hon’ble Court may be pleased to

cancel/revoke and/or set aside the provisions of section 6 (1) of

the UP Cinema (Regulation) Act, , Section 6 (1) of the Punjab

Cinemas (Regulation) Act, 1952 and Section 8 of the A.P

Cinema (Regulation) Act, 1955. This Hon’ble Court be further

pleased to set aside the Impugned Orders of the Respondent

Nos. 2 and 4 passed under the section 6 (1) of the UP Cinema

(Regulation) Act, , Section 6 (1) of the Punjab Cinemas

(Regulation) Act, 1952 and Section 8 of the A.P Cinema

(Regulation) Act, 1955 respectively. The Hon’ble Court be

pleased to direct the Respondent Nos.2 to 4 to refrain from

acting in furtherance of the Impugned Orders and be further

pleased to direct Respondent Nos.2 to 4 to provide police

protection to the Petitioners on the grounds mentioned

hereinafter.

3.33 The petitioners are challenging the impugned order, inter alia,

on the following amongst others:

GROUNDS

A. For that the Impugned Orders infringe the Petitioners’ rights

under Article 19 of the Constitution of India.

B. For that the Film is duly certified for public exhibition in

accordance with the provisions of Cinematograph Act and has

been granted “UA” Certificate by the Central Board of Film

Certification, Respondent No.2 herein.

C. For that the Petitioners have duly complied with the procedure

prescribed in the Cinematograph (Certification) Rules, 1983

(“Rules”) for certification of films. For that the Film and 35

promos of the Film were duly certified for public exhibition by

Respondent No.3 in accordance with the provisions of

Cinematograph Act and Rules thereunder.

D. For that the Chairperson of Censor Board Ms. Leela Samson, in

accordance with the provision of Rule 41 (4) (c) of the

Cinematograph (Certification) Rules, 1983 (“Said Rules”), the

Censor Board decided to set up a committee of experts who

were especially flown down from Delhi to examine the Film.

Hon’ble Retired Chief Justice of Punjab & Haryana Court Mr.

Mukul Mudgal, and Dalit activist Ms.Rajni Tilak were the expert

committee members who were flown from Delhi to preview the

Said Film. The Examining Committee further comprised

following four members drawn from the Scheduled Caste,

Scheduled Tribes and other backward castes:

(e) Smt. L. Meena (ST Category)

(f) Smt. J.S Kamble (SC Category)

(g) Shri N.S Bansode (SC Category)

(h) Shri R. Tanawade (OBC Category)

E. For that as per Rule 22 (7) of the Rules Pankaja Thakur, the

Regional Head of the Said Rules, Chairperson of the Censor

Board nominated a board member who was asked to remain

present during the preview of the Said Film. After the screening

of the film was completed, the Examining Officer on behalf of

the Screening Committee asked two experts to give their

opinion whether the film as a whole or any part thereof violates

the provisions of SC/ST Act or sentiments of any particular

community or class were deliberately or otherwise hurt. Both the

experts opined in the negative hence the Examining Committee

decided to give U/A certificate to the Said Film under the theme

category “social”. Drawing on people who specialize in issues

related to backward castes and taking people from the

community itself to examine the Film is a very unusual and

unprecedented move on the part of the Censor Board. The

Censor Board has passed its verdict and the Film has been

given a U/A certificate in accordance with the provisions of

Cinematograph Act and Rules thereunder. The Petitioners have

taken abundant care and caution with regard to censorship of

the Film and its promos. Each and every promo including a 20

seconds promo was submitted to the Respondent No.2 for

certification in accordance with the Cinematograph Act and the

same has been duly certified for public certification.

F. For that pursuant to commencement of promotion and publicity

of the Film, two practicing advocates describing themselves as

converted Buddhists and deemed to be Scheduled Castes had

filed Writ Petition No.6029 of 2011 in the Hon’ble Bombay High

Court based on an apprehension that the film is anti-reservation

and is likely to disturb public tranquility, law and order. Amongst

others, the Censor Board and the Principal Secretary (Home),

State of Maharashtra were also joined as a party to the said

petition. After hearing the parties to the Writ Petition at length,

the Hon’ble Bombay High Court by their orders dated 09th

August, 2011 rejected the Petitioner’s request for screening of

the Said Film before its scheduled release and /or for banning

the exhibition of the Said Film, inter alia, on the ground that the

Examining Committee of the Censor Board, after conducting

preview of the Said Film and after taking opinion of the experts

granted certificate of public exhibition to the Said Film. The

Censor Board is the only appropriate authority who has a right

to judge the film in the light of the objectives of the

Cinematograph Act, 1952 and Rules thereunder as well as the

guidelines provided for this purpose.

G. For that the Film is not anti-reservation and/or anti-dalit. The

Film uses the issue of reservation only as a landscape or

backdrop on which the story and journey of the protagonist, who

is the principal of an institution, is based. The Film highlights the

commercialization of education system in the present society.

H. For that as per the provision of Section 5B of the

Cinematograph Act, a cinematograph film shall not be certified

for public exhibition, if in the opinion of the authority competent

to grant the certificate, the film or any part of it is against the

interests of the sovereignty and integrity of India, the security of

the state, friendly relations with foreign states, public order,

decency or morality or involves defamation or contempt of court

or is likely to incite the commission of any offence. Therefore,

the fact that the Film has been certified for public exhibition by

the Censor Board, the statutory authority constituted under the

Cinematograph Act sufficiently proves that the Film is certified

for public exhibition in accordance with law, more particularly in

compliance with 5B of the Cinematograph Act, the Rules

thereunder and the Guidelines dated 06th December, 1991.

I. For that the Censor Board is a specialized body constituted

under the statute, best equipped to decide this issue and has

duly certified the Film for public exhibition in accordance with

the Cinematograph Act and Rules thereunder.

J. For that any restraint on exhibition of the Film which has been

certified for public exhibition in accordance with Cinematograph

Act would violate the fundamental right of the Petitioners

granted under the Constitution of India including but not limited

to the fundamental right of speech and expression guaranteed

under Article 19 (1) (a) of the Constitution. For that a film is a

medium to express one’s opinion and is thereby inclusive of

freedom of communication and right to propagate public

opinion. Freedom of expression is constitutionally protected and

cannot be held to ransom by an intolerant group of people.

K. For that the Film has been approved by the Examining

Committee of Censor Board, comprising of members who were

drawn from the Scheduled Caste, Scheduled Tribes and other

backward castes there is no question of showing the film to any

person / authority.

L. For that the local enactments under which the exhibition of a

film certified by the Censor Board under the Cinematograph Act

(the Central Act), can be prohibited from exhibition is

unconstitutional and ultra vires.

M. For that the Respondent States cannot ban or prohibit the

exhibition of a film on the basis of their own whims and fancies

even before the film is released.

N. For that the fundamental freedom under Article 19 (1) (a) can be

reasonably restricted only for the purposes mentioned in Article

19 (2) and the restriction must be justified on the anvil of

necessity and not on the quicksand of convenience or

expediency.

O. For that the Film having passed the test of Section 5 of the

Cinematograph Act shows that the restrictions of Article 19 (2)

have been considered as not being attracted to the Film.

Therefore, any restraint on exhibition of the Film would infringe

these Petitioners’ fundamental right of profession guaranteed

under Article 19 (1) (g) of the Constitution.

P. For that notwithstanding the subject matter of the Film, it is well

settled by the Apex Court in several judicial precedents that

open criticism of the Government policies and operations is not

a ground for restriction expression and we must practice

tolerance to the views of others. For that this Hon’ble Apex

Court in the case of S. Rangarajan vs. P Jagjevan Ram & Ors.

and Union of India & Ors. vs. P. Jagjivan Ram & Ors. [(1989) 2

SCCC 574] has observed as follows:

“49. In this case, two Revising Committees have approved the

film. The members thereof come from different walks of life with

variegated experiences. They represent the cross section of the

community. They have judged the film in the light of the

objectives of the Act and the guidelines provided for the

purpose. We do not think that there is anything wrong or

contrary to the Constitution in approving the film for public

exhibition. The producer or as a matter of fact any other person

has a right to draw attention of the Government and people that

the existing method of reservation in educational institutions

overlooks merits. He has a right to state that reservation could

be made on the basis of economic backwardness to the benefit

of all sections of community. Whether this view is right or wrong

is another matter altogether and at any rate we are not

concerned with its correctness or usefulness to the people. We

are only concerned whether such a view could be advocated in

a film. To say that one should not be permitted to advocate that

view goes against the first principle of our democracy.

50. We end here as we began on this topic. Freedom of

expression which is legitimate and constitutionally protected,

cannot be held to ransom by an intolerant group of people. The

fundamental freedom under Article 19(1)(a) can be reasonably

restricted for the purposes mentioned in Article 19(2) and the

restriction must be justified on the anvil of necessity and not the

quicksand of convenience of expediency. Open criticism of

Government policies and operations is not a ground for

restricting expression. We must practice tolerance to the views

of others. Intolerance is as much dangerous to democracy as to

the person himself.”

Q. For that the Film and its subject matter are being publicized

since the commencement of production of the Film in

December, 2010. The first promo of the Film was released on

internet platform on 10th June, 2011, theatrical trailor was

released on 24th June, 2011 and on television platform it was

released on was 10th July, 2011.

R. For that even before the Film is released, there are media

reports creating prejudice in respect of the Film. There are

speculations about the Film being anti-reservation or anti-dalit

and apprehensions are being raised about the Film likely to

disturb public tranquility, law and order.

S. For that the provisions of section 6 (1) of the UP Cinema

(Regulation) Act, Section 6 (1) of the Punjab Cinemas

(Regulation) Act, 1952 and Section 8 of the A.P Cinema

(Regulation) Act, 1955 are redundant in view of the provision of

Section 5A of the Cinematograph Act, 1952 which provides for

certification of films for public exhibition if the Censor Board

after examining of a film in the manner prescribed thereunder is

satisfied that the Film is suitable for unrestricted public

exhibition. The provisions of these State Acts cannot over ride

the provisions of the Cinematograph Act, 1952 which is a

Central Act.

T. For that the Impugned Order dated 11th August, 2011 passed by

Respondent No.4 is based on the apprehension that the Said

Film is likely to hurt the feelings of weaker sections, lead to

protests and agitations, leading to the breach of peace and

tranquility in the State. It is clear from the Said Order that the

Respondent Nos.4 has pre-determined the issue and formed an

opinion about the Film being anti-reservation and have banned

the Said Film in the State of Andhra Pradesh without giving the

Petitioners an opportunity of being heard, the same being unfair,

arbitrary and in violation of principles of natural justice.

U. For that the Impugned Orders are issued by different states.

Thus the Petitioners are compelled to approach this Hon’ble

Court by the present writ petition. In any event this Hon’ble

Court has jurisdiction to entertain the present petition as the

petitioners are seeking to enforce the fundamental rights.

5. That the present petitioner has not filed any other petition in any

other High Court or the Supreme Court of India on the subject

matter of the present petition.

6. That the petitioners will suffer irreparable loss and injury if the

relief sought for is not granted. The balance of convenience is

in favour of the petitioners.

7. That the petitioners reserve the right to add, alter or amend the

writ petition and the grounds therein at a later stage, if

necessary.

Thus the Petitioners are therefore compelled to approach this

Hon’ble Court by the present writ petition. In any event this

Hon’ble Court has jurisdiction to entertain the present petition as

the petitioners are seeking to enforce the fundamental rights.

PRAYER

It is therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to:

a. issue a Writ, order or direction in the nature of Certiorari or