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2022 DIGILAW 364 (JHR)

Sithara Joy (Sr. Helen Tresa) v. Union of India

2022-03-30

RAJESH SHANKAR

body2022
JUDGMENT : The writ petition is taken up today through Video conferencing. The present writ petition has been filed for quashing and setting aside Certificate No. DIL/3/10/2021-THI dated 30.12.2021 issued to the movie namely, “HOLY WOUND” by the Regional Officer, Central Board of Film Certification (CBFC), Thiruvananthapuram, Kerala. Further prayer has been made for stopping release of the said silent movie namely, “HOLY WOUND” on OTT platform/Youtube etc. or on any other social media platform run by the respondent no. 3 – Sahasrara Cinemas Pvt. Ltd., Thiruvananthapuram, Kerala being blasphemous in nature, hurting the religious sentiments of the petitioners as well as the Christian community at large. 2. Learned counsel for the petitioners submits that the trailer of the movie namely, “HOLY WOUND” is available in various social media platforms from which it could be seen that the film depicts sexual relationship of two female characters, who have been in emotional relationship since childhood and are separated when one of them joins a religious congregation in a Catholic Church. After lapse of few years, both of them reunite and continue their inordinate sexual passion. It is further submitted that the religious life of a catholic nun has been portrayed in the said movie as lesbian which can be deciphered from the description given at the link available on ‘Youtube’. The content in the movie is highly derogatory which clearly tarnishes the reputation of Catholic Church and its members which in turn would demoralize the members who joined in the priestly order and nunship. The said depiction might have been done with an intention to commit the action of blasphemy in order to hurt the religious feelings of the Christians. The respondent no. 4 ought to have followed the “Guidelines for Certification of Films for Public Exhibition” wherein Clause-1 provides that the objectives of film certification will be to ensure that the medium of film remains responsible and sensitive to the values and standards of the society. As per the said clause, the medium of film should provide clean and healthy entertainment and as far as possible the film should be of aesthetic value and cinematically of a good standard. According to Clause-2(ix) of the said Guidelines, the Board of Film Certification must ensure that scenes degrading or denigrating women in any manner are not presented. Soon after the trailer was released, the petitioner no. According to Clause-2(ix) of the said Guidelines, the Board of Film Certification must ensure that scenes degrading or denigrating women in any manner are not presented. Soon after the trailer was released, the petitioner no. 1 received several phone calls inquiring as to whether such things happen inside the convents which disturbed her mental disposition. It is further submitted that the Hon’ble Supreme Court in the case of “Ram Jethmalani & Ors. Vs. Union of India & Ors.” reported in (2011) 8 SCC 1 has held that the rights of citizens under Article 19(1) of the Constitution have to be balanced vis-a-vis Article 21 and the latter rights cannot be sacrificed as it would lead to detrimental consequences and even anarchy. It is also submitted that no doubt the constitutional rights are prime, yet are possibly not made absolute as they may come into conflict with each other and when competing, they have to be qualified and balanced. 3. Learned ASGI appearing on behalf of the respondent-UoI, at the outset, raises issue with regard to maintainability of the present writ petition. It is vehemently argued that the head office of the “Film Certification Board” is situated in Mumbai and the impugned certificate has been issued by the regional office situated at Thiruvananthapuram, Kerala. Further, even a small part of cause of action has not arisen within the territorial jurisdiction of this Court and as such the present writ petition is liable to be dismissed without entering into the merit of the case for want of jurisdiction. 4. Heard the learned counsel for the parties and perused the materials available on record. The petitioners have primarily challenged the certificate issued by the Regional Officer, Central Board of Film Certification, Thiruvananthapuram, Kerala for the film “HOLY WOUND” (Silent). The consequential relief prayed by the petitioners is for issuance of direction upon the respondents to stop the release of the said movie in OTT platform or any other social media platform. 5. Before entering into the merit of the contention of the parties, it would be appropriate to refer the judgments cited on behalf of both the sides. 6. Learned ASGI has put reliance on the judgment rendered by the Bombay High Court in the case of “P.N Films Ltd. Vs. Union of India” (Misc. Application No. 170 of 1954). 5. Before entering into the merit of the contention of the parties, it would be appropriate to refer the judgments cited on behalf of both the sides. 6. Learned ASGI has put reliance on the judgment rendered by the Bombay High Court in the case of “P.N Films Ltd. Vs. Union of India” (Misc. Application No. 170 of 1954). In the said case, an order under Section 5(4) of the Cinematograph Act, 1952 was issued by the Under Secretary to the Government of India at New Delhi which was challenged in Bombay High Court, however, the said writ petition was dismissed by the Bombay High Court for want of jurisdiction holding that the authority issuing the order was the Central Government located at New Delhi and the mere fact that the Central Government is located in Bombay in its broadest and widest sense apart from physical location and the Central Government comes within the territorial jurisdiction of Bombay High Court, did not per se give jurisdiction to the Bombay High Court, as it is the fact that Central Government is located at New Delhi from where the order was issued. 7. In the case of “Brij Bhal Singh Gautam Vs. Union of India & Ors.” reported in 1997 SCC OnLine All 760 as has been relied upon by the learned ASGI, the High Court of Allahabad has held as under: 6. The answer to the preliminary objection would depend upon the answer to the question whether any part of ‘cause of action’ has arisen within the territorial jurisdiction of the Allahabad High Court. In South-East Asia Shipping Company Ltd. v. Nav Bharat Enterprises (P) Ltd. (1996) 3 SCC 443 , the expression ‘cause of action’ was explicated as under: “It is settled law that cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a court of law. The cause of action means, therefore, every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with law applicable to them, gives the plaintiff a right to claim-relief against the defendant. The cause of action means, therefore, every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with law applicable to them, gives the plaintiff a right to claim-relief against the defendant. It must include some act done by the defendant, since in the absence of such an act, no cause of action would possibly accrue or would arise……” 8. In Daya Shanker Bharadwaj v. Chief of Air Staff, New Delhi, AIR 1988 All 36 , a Division Bench of this Court has expounded the following proposition of law (at page 39): “A right of action arises as soon as there is an invasion of right but ‘cause of action’ and ‘right of action’ are not synonymous or interchangeable. A right of action is a right to enforce a cause of action (American Jurisprudence II Edn. Vol. I). A person residing anywhere in the country being aggrieved by an order of Government, Central or State or authority or person may have a right of action on law but it can be enforced or the jurisdiction under Art. 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. The cause of action arises by action of the Government or authority and not by residence of the person aggrieved.” 8. To counter the argument of learned ASGI, learned counsel for the petitioners has put reliance on a judgment rendered by the Hon’ble Supreme Court in the case of “Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr.” reported in (2004) 6 SCC 254 . In the said case, it has been held that the question as to whether the court has territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. It has further been held that in order to confer jurisdiction on a High Court to entertain a writ petition, it must be disclosed that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the court to decide the dispute and that the entire or a part of it arose within its jurisdiction. It has further been held that the place from where an appellate order or a revisional order is passed may give rise to a part of cause of action although the original order was passed at a place outside the said area. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum. Finally, it has been held that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor and in appropriate cases, the court may refuse to entertain the writ petition by invoking the doctrine of forum conveniens. 9. Learned counsel for the petitioners has put further reliance on a judgment rendered by the Hon’ble Supreme Court in the case of “Shanti Devi @ Shanti Mishra Vs. Union of India & Ors.” reported in (2020) 10 SCC 766 , wherein the proposition laid down in the judgment of “Kusum Ingots & Alloys” (supra) has been followed. 10. Learned counsel for the petitioners has also put reliance on paragraphs 19 and 24 of a judgment rendered by Delhi High Court in the case of “Banyan Tree Holding (P) Ltd. Vs. A. Murli Krishna Reddy & Anr.” reported in 2009 SCC OnLIne Del 3780 in which “Zippo sliding scale” test and the “Calder effects” test applied by American Court to determine the jurisdiction of the forum court in suits involving internet related disputes has been discussed. In the said judgment, the Bench after considering several judgments of foreign courts has held in paragraph-42 as under: 42. This Court holds that jurisdiction of the forum court does not get attracted merely on the basis of interactivity of the website which is accessible in the forum state. The degree of the interactivity apart, the nature of the activity permissible and whether it results in a commercial transaction has to be examined. For the ‘effects’ test to apply, the Plaintiff must necessarily plead and show prima facie that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. For the ‘effects’ test to apply, the Plaintiff must necessarily plead and show prima facie that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. For the purposes of a passing off or an infringement action (where the plaintiff is not located within the jurisdiction of the court), the injurious effect on the Plaintiff's business, goodwill or reputation within the forum state as a result of the Defendant's website being accessed in the forum state would have to be shown. Naturally therefore, this would require the presence of the Plaintiff in the forum state and not merely the possibility of such presence in the future. Secondly, to show that an injurious effect has been felt by the Plaintiff it would have to be shown that viewers in the forum state were specifically targeted. Therefore the ‘effects’ test would have to be applied in conjunction with the “sliding scale” test to determine if the forum court has jurisdiction to try a suit concerning internet based disputes. 11. Learned counsel for the petitioners has put further reliance on a judgment rendered by Delhi High Court in the case of “Edara Gopi Chand Vs. Union of India & Ors.” reported in 2015 SCC OnLine Del 13020, wherein a public interest litigation was filed seeking direction upon the Ministry of Information and Broadcasting to cause a detailed enquiry into the re-certification of the film “Grand Masti” from ‘A’ to ‘V/UA’ and further to quash the ‘V/UA’ certificate granted to the said film which was having pervasive adult theme. In the said case, an objection with regard to maintainability of the writ petition was raised for want of territorial jurisdiction as the office of the respondents was situated in Mumbai. The said objection was turned down by the Bench and was held that even if small fraction of cause of action arises within the territory in relation to which the High Court exercises jurisdiction, it shall have jurisdiction to entertain the writ petition notwithstanding the fact that the situs of the office of all the respondents was situated outside the territorial jurisdiction. Even according to the doctrine of forum conveniens, it is the discretion of the court either to entertain or to reject the writ petition depending upon the facts and circumstance of the case. 12. Even according to the doctrine of forum conveniens, it is the discretion of the court either to entertain or to reject the writ petition depending upon the facts and circumstance of the case. 12. The case of “Edara Gopi Chand” (supra) cited by the learned counsel for the petitioners was filed in the form of PIL. However, the present writ petition has been preferred in the form of Writ Petition (Civil) and not as Public Interest Litigation espousing the grievance of the public at large. Moreover, it is now well settled that it is the discretion of the court to decide as to whether the writ petition is a fit one to be entertained or to refrain from entertaining it applying the doctrine of forum conveniens looking to the facts and circumstances of the case as well as that any cause of action has arisen within the territorial jurisdiction of the said court. 13. In the present case, so far the first and main prayer is concerned, it appears to this Court that the certificate was issued by the Regional Office of CBFC situated at Thiruvananthapuram, Kerala as also the producer of the film – Sahasrara Cinemas Pvt. Ltd. has its office situated at Thiruvananthapuram, Kerala. The Head Office of the CBFC is situated in Mumbai. Several grounds have been taken in the writ petition that the certificate has been issued in contravention of the provisions of the “Guidelines for the Certification of Films for Public Exhibition”, however, the said cause of action has not arisen within the territory of the State of Jharkhand, rather the same has arisen within the territory of the State of Kerala. 14. As per the averments made in the writ petition, the petitioner no. 1 after release of the trailer of the said film received many phone calls inquiring from her as to whether it so happens with other nuns like the petitioners due to which she is in mental agony. 15. The said concern shown by the petitioners appears to be omnibus in nature and there is every possibility that nuns residing in different parts of the country may have similar grievances as that of the petitioners. If the same issue is raised in different High Courts, there may be a possibility of divergent view coming up creating an impossible situation for the implementing agency to comply all such orders. 16. If the same issue is raised in different High Courts, there may be a possibility of divergent view coming up creating an impossible situation for the implementing agency to comply all such orders. 16. In “Kusum Ingots & Alloys” (supra), the Hon’ble Supreme Court has held that even if a small part of cause of action arises within the territorial jurisdiction of a High Court, the same by itself may not be considered to be a determinative factor compelling the said High Court to decide the matter on merit. The court, in appropriate cases, may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. 17. The Black’s Law Dictionary defines forum conveniens as the court in which an action is most appropriately brought considering the best interests and convenience of all the parties and witnesses. 18. Thus, this Court is of the view that even if a small part of cause of action is said to have arisen within the territorial jurisdiction of this Court, looking to the facts and circumstance of the present case, it would not be proper to entertain the present writ petition applying the principle of forum conveniens. 19. Under the aforesaid facts and circumstance, the present writ petition is dismissed primarily for want of territorial jurisdiction of this Court to entertain the same without expressing any opinion on the merit of the case. The petitioners are, however, at liberty to approach the appropriate court of law/forum having jurisdiction to entertain their grievance. I.A. No. 1087 of 2022 and I.A. No. 1331 of 2022 also stand disposed of accordingly.