Litigation

The Bombay High Court has today ruled in favour of MCX Stock Exchange (MCX-SX), represented by J Sagar Associates (JSA) and Naik Naik & Co, against the Securities and Exchange Board of India’s (SEBI) decision to prevent MCX from trading in derivatives and other products.

Exclusive: The Andhra Pradesh writ petition filed by the brother of late South Indian actress Silk Smitha against the movie loosely inspired by her life, The Dirty Picture, has been dismissed in favour of the movie’s producer Balaji Motion Pictures, represented by Naik Naik & Co, and the Censor Board, represented by Verus Advocates recently joined Hyderabad partner.

Naik Naik & Co has represented Bollywood actor Imran Khan and a student in their Bombay High Court writ petition challenging Maharashtra’s increase of the minimum drinking age to 25 years.

Naik Naik & Co has succeeded in challenging the three states’ orders banning the film Aarakshan before the Supreme Court, following an earlier favourable order before the Bombay High Court.

Naik Naik & Co partner Madhu Gadodia summarised the case before the Supreme Court:

Prakash Jha Productions and Mr. Prakash Jha (“Petitioners”) filed a petition in the Hon’ble Supreme Court under Article 32 of the Constitution of India, challenging the orders passed by State of Uttar Pradesh, State of Punjab and Andhra Pradesh (collectively “Respondents”) suspending the exhibition of the film “Aarakshan” (“Film”) in their respective territories for a certain period. While the State of Punjab and Andhra Pradesh subsequently revoked their orders of suspension, the State of Uttar Pradesh continued the ban / suspension by their order dated 10^th August, 2011.

The state of Uttar Pradesh had passed the suspension order in accordance with Section 6 (1) of the UP Cinemas (Regulation) Act which entitles the State Government to suspend the exhibition of a film which is being exhibited for a period of two films if there is reasonable likelihood / apprehension of breach of public order. The Petitioners therefore filed the petition seeking the relief in terms of striking down section 6 (1) of the UP Cinemas (Regulation) Act, the same being ultra vires the Constitution. The Petitioners also sought setting aside the decision taken by the Respondents prohibiting the screening of the Film in their respective states for a specified period.

Notices were issued to all Respondents and the matter was placed for hearing today. Counsel Mr. Harish Salve and Mr. Ameet Naik appeared for the Petitioners. Counsel Mr. A.S Chandiok appeared for Union of India and Counsel Mr. Uday Lalit appeared for State of UP. The matter was argued at length. The Hon’ble Court observed that since the states of Punjab and Andhra Pradesh had withdrawn the suspension orders and the Film is being exhibited in these two states, the petition is infructuous as far as these two states are concerned.

Mr. Salve and Mr. Naik submitted that the exercise of power by the State Govt. of UP to suspend the exhibition of the Film in UP amounts to pre-censorship of the Film which is the responsibility of Central Board of Film Certification (“Censor Board”), the statutory body constituted under the Cinematograph Act for the said purpose. In the present case, the State Govt. of UP has in the Impugned order cited several scenes of the Film which are objectionable in their view and which are required to be deleted as a pre-condition for exhibition of the Film. Therefore, the power sought to be exercised by the State Government under Section 6 (1) of the Uttar Pradesh (Cinemas) Regulation Act (“UP Act”) in the present case is without jurisdiction.

The scheme of the said section is to temporarily suspend the exhibition of a film to enable the State Government to make appropriate arrangements to deal with and maintain the law and order situation. The said section does not empower the State Govt. to step into the shoes of Censor Board and make decision / suggestion regarding the content of the Film as in the present case. Moreover, the provision of Section 6 (1) of the UP Act is to be exercised only when a film is “being publicly exhibited” and there is apprehension of breach of public order. In the present case, the Film was not publicly exhibited until the date of the Impugned order i.e 10^th August, 2011 (Film was scheduled for release on 126^th August, 2011).

Therefore, the question of State Govt. exercising its powers under Section 6 (1) of the UP Act did not arise. Mr. Salve also relied upon judgments of Hon’ble Supreme Court in the case of S. Rangarajan vs. P Jagjevan Ram & Ors. and Union of India & Ors. vs. P. Jagjivan Ram & Ors and Sankarappa and Bombay High Court in the case of Kamal Khan vs. State of Maharashtra holding 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.

Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. 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.

Mr. Chandiok appearing for the Union of India supported the contentions of the Petitioners and submitted that once a film was certified for public exhibition by the Censor Board, the State Governments are not empowered to interfere with the exhibition of the Film.

Mr. Lalit appearing for State of UP submitted that the State Govt. had suspended the exhibition of the Film in accordance with Section 6(1) of the UP Act since there was likelihood of breach of public order and the same was the basis of such apprehensions were certain press reports. He also submitted that the Film was viewed by a committee of experts constituted by the State Govt. of UP and apprehended to cause breach of public order.

Upon hearing the parties at length, the Hon’ble Court observed that admittedly, the Film was certified for public exhibition by the Censor Board who had also constituted a special committee comprising of persons from SC, ST and OBC. The certification was granted in accordance with the provisions of Cinematograph Act and Rules and Guildelines thereunder. Pursuant to certification, the Film is being exhibited in various parts of India without any problem of law and order.

Moreover, the Hon’ble court observed that the term “being publicly exhibited” in section 6 of the UP Act pre-supposes “exhibition” of the film. Such power cannot be exercised in respect of a film which is yet to be exhibited. “Suspension” envisages that which is functional / running. Therefore the UP Govt. ought not to have exercised their powers under Section 6 (1) of the UP Act for a film that was not being exhibited. The decision taken at that stage cannot envisage future exhibition. The Hon’ble Court also observed that the apprehensions of UP Govt. don’t hold substance in view of the fact that the Film is being exhibited in other states, which are also sensitive states, without any difficulty.

The court further observed that reservation in addition to being a sensitive issue is also a social issue and in a vibrant democracy like ours, such discussion on social issues bring in awareness which is required for effective working of our democracy. Infact, when there is dissent on such issues an informed decision can be taken which is necessary at this stage. The Hon’ble Court upheld the observations in the case of Sankarappa and Rangarajan case and held that the right to freedom of speech and expression guaranteed under Article 19 (1) (a) cannot be taken for granted and once the Censor Board has certified the film for public exhibition, it is not open for the State Governments to perform the role of pre-censorship.

In the above background, the Hon’ble Supreme Court allowed the petition to the extent of challenge to the suspension orders passed by the State of UP and set aside / quashed the order dated 10^th August, 2011 passed by the UP Govt. suspending the exhibition of the Film for a period of two months in the State of UP. The order was dictated in open court. Therefore, as per the order the Film can be released in the state of UP with immediate effect without any obstruction.

Naik Naik & Co represented the producers of the Amitabh Bachchan starrer Aarakshan (reservation) and successfully persuaded the Bombay High Court not to stay the release of the film, which has been attracting controversy for its purported anti-reservation message.

Naik Naik & Co-led Retailers Association of India (RAI) has lost the immovable property rentals’ service tax matter in the Bombay High Court, which upheld the union government’s power to enact laws to impose service tax on such rentals as constitutionally valid.

Exclusive: MDP & Partners recent lateral Ashok Paranjpe has won a Rs 15.77 crore ($3.5m) arbitration dispute for his long-standing client Tata Motors against the Gujarat Electricity Board, which its lawyers Little & Co will appeal in the Bombay High Court.

Exclusive: DSK Legal managing partner Anand Desai is defending Aamir Khan’s latest box office bonanza Delhi Belly against a raft of obscenity claims, of which only one has so far been served on the producer.

Exclusive: DSK Legal and Juris Corp through senior counsel Janak Dwarkadas have filed a winding-up petition in the Bombay High Court against pharma company Wockhardt, which is represented by Majmudar & Co and senior counsel Rohit Kapadia.

Exclusive: Delhi-based intellectual property (IP) boutique IP Gurus has acted for the manufacturers of Rubik’s Cubes resulting in police arrests of four alleged counterfeit cube puzzle sellers.

Exclusive: M Dhruva & Partners and senior counsel Janak Dwarkadas won an interim order from the Securities Appellate Tribunal (SAT) in favour of Ackruti City, allowing Ackruti’s promoters to pledge their own shares after the Securities and Exchange Board of India (SEBI) on 2 December banned the promoters from dealing in their shares following allegations of price manipulation.

Senior advocate Fali Nariman led industrial house Wadia Group’s victory in a high-profile property dispute matter in the Bombay High Court against real estate developers G L Raheja which was represented by Bharucha & Partners and senior counsel Abhishek Manu Singhvi, reported the Economic Times.

Exclusive: The Bombay High Court declined interim relief in an action filed by M Dhruva & Partners on behalf of its client Crimson Hospitality Services against developers Lavasa Corporation, which allegedly violated a court injunction of an earlier public interest litigation (PIL).

Crawford Bayley and Amarchand Mangaldas have been duking it out in the Bombay High Court on behalf of expelled Indian Premier League (IPL) team Rajasthan Royals and the Board for Control of Cricket in India (BCCI) respectively, with a ruling on an arbitrator’s interim relief expected this week.

Karanjawala & Company partner Manik Karanjawala is representing Tata Group chairman Ratan Tata who has approached the Supreme Court today about the Nira Radia tapes that he alleges violated his privacy, reported the Indian Express.