Culture Fascists

the culture fascists are the most boring people.
for them life is just a mechanical process of adding years to age.
they don't know passion, they dont know romance, they dont understand art, they can't think, they can't love, they can't laugh- to put it simply, they cant enjoy life and nature. 
with stunted individually, decayed minds, and thoughts frozen in medievality, they perish away without contributing an inch towards human progress..
but throughout their putrid life they inflict much harm and injury on other beings..
.for they know only to spread misery and hatred.
.but sadly they always constitute the majority..

MALAYALAM FILM STRIKE :- BOYCOTT BY EXHIBITORS IS AN ANTI-COMPETITIVE PRACTISE

The Malayalam Film Industry is witnessing an unprecedented crisis now, in view of the tussle between the film producers and film exhibitors over percentage of revenue sharing. The association of single screen theatre-owners, Kerala Film Exhibitors Federation(KFEF), has demanded a share of 50% of the collection of first week of new releases, as against the present share of 40%. They demand parity with multiplex chains like PVR, Cinemax etc, who are given 50% share. The Exhibitors Federation has resolved not to exhibit Malayalam Films, until their demands are met by the Producers and Distributors. Since the Producers and Distributors are not ready to accede to the demand, a crisis developed. Resultantly, none of the Malayalam Films, including that of super-stars, was released during the Christmas season, causing huge disappointment to movie-goers.  

Let us examine the legality of the boycott called by Exhibitors Federation, in the light of the provisions of Competition Act 2002. Kerala Film Exhibitors Federation(KFEF) is an association of more than 300 single screen theatre owners out of nearly 500 theatres in Kerala. Most of them are classified as ‘A’ class theatres, eligible for getting fresh releases. KFEF is definitely a ‘cartel’ within the meaning of Competition Act. Section 2(c) sets out an inclusive definition of ‘cartel’, whereby an ‘association of producers, sellers, distributors, traders, or service providers, who, by agreement amongst themselves, limit, control, or attempt to limit or control the production, distribution, sale or price of, or trade in goods or provisions’.

Any agreement by a cartel, which limits or controls production, supply, markets, technical development or provision of services is an ‘anti-competitive’ agreement as per Section 3(3)(b) of the Act. Here, the decision of the KEFF to refrain from screening Malayalam Films is definitely limiting the provision of services. It is also pertinent to note that “service” is defined under Section 2(u), and it includes “entertainment”, and “amusement”, correlating to watching of movies. Therefore, it is clear that the boycott by KEFF is limiting the provision of services, rendering it an anti-competitive agreement.

Section 19(3) Act also enumerates certain factors, which the Competition Commission needs to look into, while inquiring whether an agreement is anti-competitive or not. They are :-

aa.    Creation of barriers to new entrants in the market

bb.    Driving out existing competitors out of market

cc.   Foreclosure of competition by hindering entry into market

dd.    Accrual of benefits to consumers

 e.  Improvements in production or distribution of goods or provision of services

f.f.     Promotion of technical, scientific, and economic development by means of production or production or distribution of goods or provision of services.

In the instant case, the decision of Federation has created barriers for market entry to new releases and has foreclosed competition by hindering entry into market. There is no accrual of any benefit to consumers; in fact, consumers are in the losing side, as they were deprived of movie watching experience.  The barriers are not intended for promotion of any technical, scientific or economic means of production or distribution. The barriers are erected for mere show of strength and bargaining.

There is no doubt that the said boycott by Federation falls foul of Competition Act. The Competition Commission can inquire into contraventions of the Act, either suo moto, or on the basis of any information received under Section 19(1)(a), or any reference made to it by Central or State Government or a statutory authority under Section 19(1)(b). As per Section 19(1)(a), a consumer can also make information to the Commission regarding anti-competitive practice. So, it should be open to an ordinary movie-watcher in Kerala to give information to the Commission. Further, the State Government can also make a reference to the Commission regarding the issue as per Section 19(1)(b). Even the Kerala State Chalachithra Academy, which is an state instrumentality existing for promotion of films in Kerala, can make reference under Section 19(1)(b).

It would be interesting to know that the very same Federation, and its President P.V Basheer @ ‘Liberty’ Basheer, were pulled up by the Competition Commission in 2015 for having adopted similar arm-twisting tactics earlier. There is another association of single screen owners of Kerala, namely Kerala Cine Exhibitors Association(KCEA), which largely comprises ‘B’ Class theatres. When producers and distributors started adopting the strategy of giving wide release to movies in the first week itself to rake in maximum collection during initial opening days, even ‘B’ class theatres under KCEA started getting fresh releases, along with theatres under the Federation. The Federation took objection to such practice, and demanded that only theatres under the Federation should be given fresh releases. The Federation threatened that the films of those producers and distributors who give films to theatres under KCEA would be boycotted by theatres under Federation. Buckling under the pressure of Federation, producers and distributors stopped giving fresh films to theatres under KCEA.  Even the film of Kamal Hassan, “Vishwaroopam”, which was initially planned for wide release in Kerala, could not withstand the pressure of Federation, and was released only in theatres of Federation. Aggrieved with the situation, KCEA approached the Competition Commission.

By order dated 23.06.2015 in CaseNo.45/2012, the Competition Commission held that the Federation had indulged in anti-competitive practices. It was found that there was illegal cartelization in the case.  The Commission passed a ‘Cease and Desist’ order against the Federation, and imposed penalty on it. The Appeal filed by the Federation was dismissed as per order dated 04.02.2016 in Appeal No.100/15 by Appellate Tribunal. The Appellate Order may be accessed here. http://compat.nic.in/compat-old-site/CAT-07-2013/upload/PDFs/judgement-orders-2016/FINAL%20ORDER%20-26%20Feb.%2016%20-%20A.%20100%20of%2015%20KERLA%20FILM%20EX.%20FED..pdf

However, the Federation seems to be not learning from the past mistakes. Instead of knocking the box office windows, it appears that the movie lovers will have to knock the doors of Competition Commission.

Published in Live Law as http://www.livelaw.in/malayalam-film-strike-boycott-exhibitors-anti-competitive-practice/

OPINION: Kerala HC in ‘Ka Bodyscapes’ Case is Promoting Censorship rather than Artistic Freedom

The film ‘Ka Bodyscapes’ by acclaimed director Jayan C. Cherian had run into several controversies due to its theme of homosexuality and contrarian views about prevalent norms and mores. The Central Board of Film Certification (CBFC) had refusal to grant certificate to the film for public exhibition. The reason stated in the refusal order was that the film is “ridiculing, insulting and humiliating Hindu religion, in particular portraying Hindu Gods in poor light”.The film revolves around the homosexual relationship between two men, one who is an artist and another a staunch devotee of Hanuman. Towards the end of the film, the artist makes a painting, depicting his male partner as flying like Hanuman holding Maruthwamala in hand; however holding a mountain of books instead, including the Indian Penal Code with its controversial Section 377 (criminalising “unnatural” sexual offences) written in bold over the book-spine. This imaginative painting, which symbolizes the ‘coming out’ moment of the homosexual protagonist, irked the sensibilities of the CBFC. Apart from that, there were scenes dealing with female masturbation, menstruation, etc., which the CBFC found objectionable. Therefore, certificate was altogether refused to the film.

However, the Hon’ble High Court of Kerala came to the rescue of the film maker. The Court set aside the refusal order of CBFC terming it as arbitrary, unreasonable, and vague. The Court held that the Board ought to have made an effort to certify the film in the appropriate classification by giving an opportunity to the film-maker to modify or delete the scenes which are found to be objectionable. The learned Single Judge who allowed the petition filed by the film-maker observed that mere reference to homosexuality or sexual acts would not make a film obscene. The Board filed appeal before the Division Bench. However, the Division Bench upheld the judgment of the single judge.

The judgment of the Division Bench carefully avoided any discussion regarding the merits of the issue and confined itself to the examination of the decision making process. Since the film was straightaway refused certificate, without exploring other possibilities, the Court found that the procedure was not fair and hence directed the Board to take a fresh decision within a time frame by complying with all procedural fairness and also by giving an opportunity of being heard to the film-maker. The judgment cannot be termed as not legally sound as it is well within the parameters of judicial restraint, which more often seeks to confine itself to the examination of decision making process instead of the decision itself. By conceding its own lack of subject expertise and by reposing trust in the specialized institution, the Court cedes ground for ultimate decision to the institution itself, limiting judicial review to ascertaining whether proper procedure has been followed in decision making process. This is a well settled judicial principle and the judgment is strictly adhering to this judicial principle.

Nevertheless, being legally sound and being just are totally different.The judgment disappoints a votary of free speech and creative liberties. Given the rising intolerance in the society towards artists and thinkers who express contrarian views and also given the recent trend of CBFC taking umbrage at any sort of counter-majoritarian themes, the Court ought to have ventured into a larger debate to examine the rationality of the objections raised by the Board. Instead, the ball was thrown back to the Board with a direction to take a decision regarding the “modification or excisions to be made to the scenes of the film, including its dialogues, so as to bring it in conformity with the statutory guidelines and provide him an opportunity to carry out such modification”.

These observations seem to suggest that the film deserves to be modified to make it worthy of exhibition and approve the stand taken by the Board except for the manner in which the order was passed. In an earlier part it is observed that “we are not proposing any latitude or leniency to the respondent(film-maker) with respect to the application of the statutory guidelines in examination of the film but we are only indicating that the true nature of censorship should not be to ban and render it still-born but to allow it parturition by extirpatory process of removal of the objectionable content, if possible”.Implicit in these observations is the assumption that the contents of the film are objectionable. It appears that the judgment is tacitly approving the Board, though seemingly siding with the film-maker. Although the Court expressed its concern regarding the money and time invested by the film-maker and emphasised the need for an expeditious decision in the matter, lest the film lose its contemporary value, the Board was given three months time to take a final decision, which certainly is on the higher side especially in the light of the fact that the film was submitted for certification in April, 2016. One can only say that the film-maker won the war but lost the battle.

According to the judgment, law exists to ensure that the medium of film provides a “clear” and “healthy” entertainment, and “satisfactory” aesthetic value with “themes being responsible to social change”. These observations can be viewed as Freudian slips, which disclose a moralistic view on art. Art should exist for art’s sake. It need not be clear, clean, healthy, entertaining or even meaningful. Art cannot be burdened with the task of social reform and change. They are mere self expressions which express awe, despair, joy, dismay, sorrow,etc. about society, nature, and life in general. They often challenge and question social norms and community standards rather than conforming to them. Certainly, the Bench did not believe in such supreme artistic functions.

Contrast this with the approach of the Bombay High Court in the “Udta Punjab” case. There, the Court actually examined the merit of the objections raised by the Board instead of restricting itself to only examining whether the Board has complied with the procedure. The Court stated emphatically that the function of the Board is to certify films and not to censor it. The Court rubbished the objections of the Board as unreasonable and stated that “no one dictates to the maker how to make his film and what should be the context… it is entirely for them to choose the setting, the underlying theme, and story line”.The Bombay High Court directed the Board to give certificate within two days as opposed to the three months time given by the Kerala High Court.

In the instant case, the Kerala High Court shied away from such proactive approach and chose a narrow approach. Also, the observations in the judgment are questionable. By implying that the objectionable scenes will have to be cut to render the film viewable, the judgment has done a disservice to the free-spiritedness of art.

 Published in Kochi Post on 30.12.2016 as http://www.kochipost.com/2016/12/30/opinion-kerala-hc-ka-bodyscapes-case-promoting-censorship-rather-artistic-freedom/

EXEMPTION FROM QUARRYING PERMIT FOR BUILDING CONSTRUCTION ULTRA VIRES- RULE 14(2) OF KERALA MINOR MINERAL CONCESSION RULES ULTRA VIRES – KERALA HC

In a significant judgment, the High Court of Kerala has struck down Rule 14(2) of Kerala Minor Mineral Concession Rules 2015, which exempted the activity of extraction of ordinary earth in connection with construction of buildings on the strength of prior valid building permits issued by Local Self Government Institutions from the requirement of obtaining mining permit.

The Court noted that this provision was being rampantly misused. On the basis of the report filed by the Tahsildar in the instant case, and also on the basis of several other instances of misuse which had come to the attention of the Court, the learned Single Judge Justice Vinod Chandran noted that “Time and again it was brought to the notice of this Court that there is widespread illegal mining on the strength of building permits and no construction being effected. There are also no safeguards to ensure that a building is constructed, when earth is removed, on the strength of an exemption based on the building permit.”

In the instant case, the grievance of the writ-petitioner was regarding the unauthorised and large-scale excavation of ordinary earth being carried out by the party-respondents from the adjacent plot, on the strength of building permits. It was contended that under the guise of building construction, commercial scale excavation of ordinary earth was being carried out, without any bona fide construction activity.

For transportation of ordinary earth so excavated out of the property, transit passes are to be obtained in Form (OA) under the Rules from Geologists. Several writ petitions were being filed before the High Court seeking issuance of Form(OA) for transportation of ordinary earth excavated on the strength of exemption. The Tahsildar reported that in the particular Taluk 100 permits for excavation of ordinary earth permitting excavation of 500 metric tons were issued by the Geological Department, thus resulting in excavation and sale of more than 50000 metric tons of ordinary earth;which meant excavation of almost 5000 to 10000 lorry loads of ordinary earth. The Court described the figures as ‘mind-boggling’. This was found to be a short-cut method to circumvent the need for obtaining quarrying permit, and also to avoid payment of royalty.  According to the Court, there was credence to the allegation that there is a mafia operating in the State carrying out illegal excavation under the guise of extraction for the purpose of building residential houses

In the light of facts revealing rampant misuse of the exemption, the Court examined the vires of the exemption. It was held that the State Government lacked the power to provide such exemption in the form of Rule 14(2). The Mines and Minerals(Development and Regulation) Act[MMDR Act] is a Central Act. Rules are framed by State Government as empowered by Section 15 of MMDR Act. The legislative power of State to regulate mining activity is subject to that of Union, as per the entries in Schedule VII of the Constitution. As per Section 4 of MMDR Act, permit/lease/license is a mandatory requirement for carrying out mining activity. Excavation of ordinary earth for commercial gains, amounts to a mining activity, which requires permit under Section 4. Therefore, State made Rules cannot grant exemption from such requirement under the Central Act. Hence, Rule 14(2) was struck down as ultra vires the MMDR Act. It was held that :-

The State in its  anxiety to ensure payment of royalty had overlooked the object sought to be achieved by the Union Parliament in providing for regulatory measures for mining operations, which earlier resulted in indiscriminate removal of mineral resources. The State exceeded its power in providing for exemption and issuance of transit passes under the KMMC Rules for excavation carried on without a permit. It is hence declared that Sub-rule (2) of Rule 14 and sub-rules (1), (2), (3) and (4) of Rule 106 of the KMMC Rules are ultra vires the MMDR Act.

The Court also examined the need for getting ‘Environmental Clearance’(EC) for such activity. Adverting to notification dated 15.01.2016 of MoEF, digging of foundation of buildings were exempted from need for EC. However, if there was commercial exploitation of ordinary earth, EC would be necessary. Transit passes in Form OA are sought for commercial exploitation of ordinary earth, and in such cases EC would be necessary.

The Court also held that hills and hillocks cannot be razed down for building constructions. It was held that the original intent of Rule 14(2) was to exempt excavation of ordinary earth for digging building foundation, and that the exemption cannot be used for leveling of land.

The findings and directions can be summarized as

·         There cannot be excavation of ordinary earth on the strength of building permits issued by LSGI

·         No transportation passes in Form OA can be issued to transport ordinary earth excavated without permit/license under the MMDR Act.

·         If no transportation of ordinary earth is required, the Geologist shall ascertain the exact quantity of ordinary earth to be removed for digging of foundation, in consultation with the engineer of LSGI.  Such earth cannot be taken out of property.

·         Undertaking shall be obtained from the person by the Geologist that construction of foundation would be completed within six months, failing which proceedings for recovery of royalty and penalty can be initiated. 

Published in Live Law on 24.12.2016 as <http://www.livelaw.in/exemption-quarrying-permit-building-construction-ultra-vires-kerala-hc-read-judgment/>