MADRAS HIGH COURT ASKS PRODUCER OF TAMIL FILM ‘SIVA MANASULA PUSHPA’ TO APPROACH FCAT FIRST BEFORE APPROACHING THE COURT IN A PETITION FILED AGAINST CBFC CUTS

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As per reports, the Madras High Court has refused to entertain a writ petition by Tamil film producer Vaaraki (“Petitioner”) challenging the Central Board of Film Certification (CBFC) order in relation to his upcoming movie, “Siva Manasula Pushpa”. The CBFC vide its order called for 15 cuts, change of title and names of two main characters, Siva and Pushpa which resemble the names of AIADMK MP Sasikala Pushpa and DMK MP Tiruchi Siva. The CBFC Examining and Revising Committee objected to the names of these characters as it was of the view that these names were used by the Petitioner with ulterior motives and to gain publicity by referring to a controversy involving MPs Sasikala Pushpa and Tiruchi Siva in 2016 when Sasikala claimed to have slapped Tiruchi Siva for allegedly making offensive remarks against Jayalalithaa.

The Madras High Court directed the Petitioner to approach the Film Certification Appellate Tribunal (FCAT) within two weeks which would hear the matter on merits and dispose it within four weeks.  Justice M Subramaniam stated that as the matter involved complex facts it could not be adjudicated by the Court exercising its jurisdiction under Article 226 of the Constitution. The Court accepted the CBFC’s contention that the Petitioner had failed to exhaust all available legal remedies and that the writ petition was filed prematurely, noting that “bypassing the FCAT in a routine manner was impermissible and the statutory body created under the Cinematograph Act must be respected by constitutional courts.”

Recently, a similar approach was adopted by the vacation bench of the Bombay High Court when it refused to grant urgent ad-interim relief to former CBFC chairman and filmmaker Pahlaj Nihalani in relation to the CBFC order directing cuts in his film, Rangeela Raja. He had approached the Bombay High Court claiming that review before the Revising Committee of the CBFC and appeal to the FCAT in the ordinary course would result in an undue delay. He placed reliance on the decision of the Bombay High Court in Phantom Films Pvt. Ltd. v. The CBFC & Anr. (the “Udta Punjab case”) where the Court had entertained the matter on merits despite an alternate remedy being available. The CBFC however sought to distinguish the two cases and submitted that in the Udta Punjab case, the filmmakers had availed of the remedy of review. However, as the Chairperson of the Tribunal was unavailable till the proposed date of release of the film, the Court deemed it necessary to hear the matter on merits. The Court therefore noted that it would be more appropriate for Pahlaj Nihalani to seek alternate remedy through review before the Revising Committee of the CBFC or an appeal to the FCAT which had been available to him since the date of the order of the CBFC. However, liberty was granted to move the regular Court after the Court vacation.

After the court vacation when the matter was heard by the regular bench of Justice Sarang V. Kotwal and B. P. Dharmadhikari, the Court did not examine the merits of the controversy as an appeal had been preferred before the FCAT but it directed the CBFC to co­operate with the FCAT for expeditious consideration of the appeal.

Courts seem to be discouraging petitions under Article 226 without the producers first availing the remedy of approaching the FCAT and rightly so. In the presence of a statutory body being available to address the concerns of the producers, that remedy should be first exhausted before burdening the courts with such matters, unless there is urgency and the situation demands otherwise.

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