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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R
DATED THIS THE 7TH DAY OF AUGUST, 2019

PRESENT:

THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE

AND

THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ

WRIT PETITION NO.6050 OF 2019 (C) PIL

BETWEEN:
MR. PADMANABH SHANKAR,
S/O. MANNIL PADMANABHAN NAIR,
AGED ABOUT 82 YEARS,
#1009, 13TH MAIN,
2ND CROSS, HAL II STAGE,
BANGALORE-560 008.
... PETITIONER
(BY SRI. AJESH KUMAR S, ADVOCATE)

AND:
1. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF INFORMATION & BROADCASTING
A-WING, SHASTRI BHAWAN,
DR. RAJENDER PRASAD ROAD,
NEW DELHI-110 001.

2. GOVERNMENT OF KARNATAKA,
DEPARTMENT OF INFORMATION TECHNOLOGY,
M.S. BUILDING, 6TH FLOOR, 5TH STAGE,
BENGALURU-560 001,
BY CHIEF SECRETARY.

3. NETFLIX ENTERTAINMENT SERVICES INDIA (LLP)

KALAVAKKAM PROPERTIES PRIVATE LIMITED,
HAVING REGISTERED OFFICE AT:
UNIT NO.306-A, ‘THE CAPITAL’,
3RD FLOOR, PLOT C-70, G BLOCK,
BANDRA KURLA COMPLEX,
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BANDRA (EAST),
MUMBAI-400 051,
REPRESENTED HEREIN BY ITS
DIRECTOR, MR. UPADHYAY MANOJ TRYAMBAKLAL.

4. YOUTUBE, GOOGLE INDIA PVT. LTD.,

NO.3, RMZ INFINITY-TOWER E,
FLOOR-3, 4 AND 5
OLD MADRAS ROAD,
BENGALURU-560 016.
REPRESENTED HEREIN BY ITS,
DIRECTOR, MR.SATYA RAGHAVAN.

5. HOTSTAR, STAR INDIA PVT. LTD.,

HOUSE URMI ESTATE,
95 GANPATRAO KADAM MARG,
LOWER PAREL,
MUMBAI-400 004,
REPRESENTED HEREIN BY ITS
CEO, MR. AJIT MOHAN.

6. AMAZON PRIME, AMAZON DEVELOPMENT

CENTRE (INDIA) PVT. LTD.,
WORLD TRADE CENTRE,
BRIGADE GATEWAY CAMPUS,
DR. RAJKUMAR RD,
MALLESWARAM WEST,
BENGALURU-560 055,
REPRESENTED HEREIN BY ITS
DIRECTOR, MR. GAURAV GANDHI.

7. ALT DIGITAL MEDIA ENTERTAINMENT LIMITED,

C-13, BALAJI HOUSE,
DALIA INDUSTRIAL ESTATE,
OPP. LAXMI INDUSTRIAL ESTATE,
NEW LINK ROAD, ANDHERI WEST,
MUMBAI-400 053.
REPRESENTED HEREIN BY ITS
CEO, NACHIKET PANTVAIDYA. ….RESPONDENTS

(BY SRI. S.K.ACHARYA, ADVOCATE FOR R1;

SRI. VIJAY KUMAR A PATIL, AGA FOR R2;
SRI. ADITYA SONDHI, SENIOR COUNSEL FOR
SRI. JAIDEEP REDDY K., ADVOCATE FOR R3;
*SHRI SIDDARTH P. DESAI, ADV., FOR R4;
SRI. ASHOK HARNALLI, SENIOR COUNSEL FOR

* Corrected vide Court order dated 11.09.2019

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SMT. POONAM PATIL, ADVOCATE FOR R5;

SRI. SAIKRISHNA RAJAGOPAL, ADVOCATE FOR R6;
SRI. NAGANAND, SENIOR COUNSEL FOR SRI. VIKRAM
UNNI RAJAGOPAL, ADVOCATE FOR R7.)

---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARE THAT THE TRANSMISSION OR BROADCAST OF ANY
FILMS, CINEMA, SERIALS AND OTHER MULTIMEDIA CONTENT
THROUGH THE INTERNET SHALL COME WITHIN THE
DEFINITION OF SECTION 2(C) OF THE CINEMATOGRAPH ACT,
1952. ETC.

THIS PETITION COMING ON FOR ORDERS THIS DAY,

CHIEF JUSTICE MADE THE FOLLOWING:

ORDER

Yesterday, we have heard the submissions canvassed

by the learned counsel appearing for the parties.

2. The issue which arises in this petition under Article

226 of the Constitution of India is whether the transmission or

broadcast of any films, cinemas or serials and other multimedia

content through the internet will come within the definition of

‘cinematograph’ under Clause (c) of Section 2 of the

Cinematograph Act, 1952 (for short ‘the said Act of 1952’)?

3. We must note here that the learned counsel

appearing for the petitioner has confined the challenge in this

petition to the first two prayers which read as under:

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“(i) Issue an appropriate Writ, Direction or

Order to declare that the transmission or
broadcast of any films, cinema, serials and
other multimedia content through the
internet shall come within the definition of
Section 2(c) of the Cinematograph Act,
1952.
(ii) Issue an appropriate Writ, Direction or
Order to declare that watching films,
cinema, serials and other multimedia
content through internet within the four
walls of a house or office would amount to
public exhibition under the Cinematograph
Act, 1952.”

4. The learned counsel appearing for the petitioner

has taken us through the provisions of the said Act of 1952 and

submitted that the definition of ‘cinematograph’ in Clause (c) of

Section 2 of the said Act of 1952 includes any apparatus for the

representation of moving pictures or series of pictures. His

submission based on various decisions is that a transmission

or broadcast of films/serials through internet will be governed

by the definition of ‘cinematograph’. Considering the fact that

the definition in Clause (c) is an inclusive definition, it would

include all modern gadgets which are used for exhibiting films
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and serials. His submission is that exhibition of films by use of

cable television network or video cassette have been brought

within the purview of Clause (c) of Section 2 of the said Act of

1952. He invited our attention to the consequences of the

applicability of the said Act of 1952 to such cinema or serials.

He submitted that the certification as contemplated by Section

4 of the said Act of 1952 will be required for exhibition of films

and serials through internet. He invited our attention to the

averments made in the petition in support of his case that

regulation of films and serials for exhibition through internet is

absolutely necessary. He pointed out that third to seventh

respondents broadcast films or serials which have an

objectionable content. He pointed out that the fourth

respondent has been added as it is a well known intermediary.

5. He invited our attention to the decision of the Apex

Court in the case of RANJIT D.UDESHI vs. STATE OF

MAHARASHTRA1 and in particular, what is held in paragraph

9 onwards in the said decision. He also invited our attention to

the decision of the Apex Court in the case of K.A.ABBAS vs.

THE UNION OF INDIA [UOI] AND ORS2 which refers to the

1
AIR 1965 SC 881
2
(1970)2 SCC 780
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principles laid down in the case of RANJIT D.UDESHI (supra).

He also invited our attention to the observations made in

paragraphs 51 to 53 of the said decision. He invited our

attention to the decision of the Apex Court in the case of

S.RANGARAJAN AND ORS. vs. P.JAGJEVAN RAM AND

ORS.3. Inviting our attention to another decision of the Apex

Court in the case of SECRETARY, MINISTRY OF

INFORMATION AND BROADCASTING, GOVT. OF INDIA

AND ORS. vs. CRICKET ASSOCIATION OF BENGAL AND

ORS.4, he pointed out the relevant observations made in the

decision. Reliance is also placed on the decision of the

Division Bench of the High Court of Bombay in the case of

PRATIBHA NAITTHANI vs. UNION OF INDIA [UOI] AND

ORS.5. Reliance is also placed on the observations made by

the learned Single Judge of the Delhi High Court in paragraphs

44 and 45 of the unreported decision in the case of SUPER

CASSETTES INDUSTRIES LTD. AND ORS. Vs. BOARD OF

FILM CERTIFICATION AND ORS.6. He pointed out that if

there are individuals or families watching a film in the confines

3
(1989)2 SCC 574
4
(1995)2 SCC 161
5
AIR 2006 BOM 259
6
W.P.(C) No.2543/2008 and other connected matters
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of their homes, such viewers would still do it as members of the

public and it would be an ‘exhibition’ of such film. He also

pointed out that it was further held by the Delhi High Court that

at the point where members of the public, to whom the films

are made available both on DVD or VCD play it on an

equipment and view such film, whether in the confines of a

private space or otherwise, prior certification thereof will be

required. Therefore, in short, his submission is that consistent

with the law laid down by the Apex Court and various High

Courts, it must be held that broadcasting or transmission of the

films or serials through internet will attract the provision of the

said Act of 1952.

6. The definition of ‘cinematograph’ in Clause (c) of

Section 2 of the said Act of 1952 includes regulation of films

and serials by use of internet and therefore, the other

provisions of the said Act of 1952 in particular, regarding

certification are applicable to the films and serials transmitted

through internet. Our attention was invited to a decision of the

Delhi High Court in the case of SHRI BALWINDER SINGH vs.

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DELHI ADMINISTRATION & OTHERS7 with regard to the

interpretation of Section 10 of the said Act of 1952.

7. The learned Senior Counsel representing various

respondents have opposed the petition. They have pointed out

that some of the respondents have their own corrective

mechanism in the form of Code for Self-Regulation of Online

Curated Content Providers. Reliance is placed on the decision

of the Apex Court in the case of SHARAT BABU DIGUMARTI

vs. GOVERNMENT [NCT OF DELHI]8. Their submission is

that the provisions of the Information Technology Act, 2000 (for

short ‘the IT Act’) take care of the apprehensions expressed by

the petitioner in the writ petition which is in the nature of public

interest litigation. Another submission based on the said

decision is that the provisions of the IT Act override the

provisions of the Indian Penal Code.

8. We have carefully considered the submissions and

perused the averments made in the petition. We have noted

the apprehensions expressed by the petitioner, who is a senior

citizen, about the adverse impact/effect of unrestricted

7
ILR (1984)II DELHI 845
8
(2017)2 SCC 18
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broadcasting of films, cinema, serials etc. through internet on

the minds of children. The concern of the petitioner is that

there is no mechanism to regulate the unrestricted

broadcasting of objectionable films, cinema, serials etc.,

through the internet. Though self-regulation is adopted by

some of the respondents, there is no mechanism which

regulates unrestricted broadcasting of objectionable films,

cinema, serials etc. The effect of availability of such

objectionable material on the internet should be a matter of a

grave concern for the State and it cannot be disputed that the

State will have to find out a solution within the frame work of

the existing laws or if necessary, by making a law.

9. However, in this petition, we are called upon to

decide the legal issue of applicability of the provisions of the

said Act of 1952 to films, cinema, serials etc, which are

transmitted or broadcasted through the internet. We have

carefully perused the said Act of 1952. Part II of the said Act of

1952 deals with certification of films and the principles for

guidance in certifying films. All these provisions deal with

public exhibition of films within the meaning of Clause (dd) of

Section 2 of the said Act of 1952. For the purpose of this

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petition, Clause (c) and Clause (dd) of Section 2 of the said Act

of 1952 are relevant which read thus:

“(c) “Cinematograph” includes any apparatus

for the representation of moving pictures or
series of pictures;

(dd) “film” means a cinematograph film;”

The said Act of 1952, therefore, applies to films within

the meaning of Clause (dd) of Section 2 of the said Act of 1952

which have to be necessarily cinematograph films. The

concept of what is a cinematograph is in Clause (c) of Section

2 of the said Act of 1952 which we have quoted above. The

cinematograph is an equipment which includes a camera which

creates a film and the machine which exhibits or displays a

film. A video is recording of moving images and their recording

is made digitally or in the form of digital files. Therefore, as

held by some of the High Courts, a video film or a video

compact disc is included in Clause (c) of Section 2 of the said

Act of 1952.

10. In this petition, we are dealing with what is

available on the internet. Broadly speaking, internet can be an

said to be an interconnected network which connects the

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computers across the globe. It can be said to be an

interconnected network of all the web-servers worldwide.

When we come to web-server, it is essentially a program that

uses Hyper Text Transfer of Protocol [http] to serve the files

that form web pages to the users which are provided in

response to their requests which are forwarded by http client

on their computers. There may be various films or serials

transmitted via internet. If we take into consideration the

concept of internet and how the internet operates, it is

impossible to accept the submission that the films or serials

which are transmitted or exhibited through internet will

constitute films within the meaning of Clause (dd) of Section 2

of the said Act of 1952. In fact, if we consider the concept of

internet, it is very difficult to accept the contention that through

the internet there is an exhibition of films or serials. The

internet contemplates transfer of files in response to the

requests made by the users.

11. Some of the respondents pointed out that in the

writ petition itself, there are averments to indicate that the

petitioner is accepting that the provisions of the said Act of

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1952 are not applicable to films/serials on internet. Reliance is

placed on the contentions raised in the affidavit filed by the

Union of India that the said Act of 1952 may not be applicable

to such films or serials. However, that is not relevant as the

submission made that the provisions of the said Act of 1952

are applicable to serials/films on internet will have to be

decided by interpreting the law.

12. Now, coming to the first prayer, for the reasons

which we have recorded above, it is not possible to accept the

submission that the transmission or broadcasting of any films,

cinemas, serials etc., through the internet will come within the

purview of Clause (c) of Section 2 of the said Act of 1952 and

consequently, such films, cinemas or serials will come within

the meaning of Clause (dd) of Section 2 of the said Act of

1952. Therefore, the direction as prayed in the first prayer

cannot be granted.

The second prayer is virtually a consequential prayer

which could be granted only if the first prayer could be granted.

Therefore, we are unable to grant both the prayers which are

pressed by the learned counsel appearing for the petitioner.

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13. As pointed out by some of the respondents, the

provisions of the IT Act may take care of the objectionable

activity for which the petitioner has objected to. As only the

first two prayers are pressed into service, it is not necessary for

us to go into the other aspects. As far as the guidelines placed

on the Code for Self-Regulation of Online Curated Content

Providers are concerned, we must note that the same do not

create any enforceable right in favour of citizens and therefore,

the same do not prevent the State from considering what

safeguards and what regulations within the four corners of law

can be provided as regards the grievance made by the

petitioner.

14. In the circumstances, though we are not inclined to

grant the reliefs as prayed for, we are of the view that the

concern expressed by the petitioner merits a serious

consideration by the first and second respondents. Therefore,

notwithstanding the disposal of the petition, it is always open

for the petitioner to make an appropriate representation to the

said respondents. We are sure that considering the larger

public interests, both the first and second respondents will

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examine the issue and find solutions within the four corners of

law.

Subject to what is observed above, we decline to

entertain the petition. Accordingly, the petition is disposed of.

Sd/-
CHIEF JUSTICE

Sd/-
JUDGE

Ksm*