ASHUTOSH KUMAR versus THE FILM AND TELEVISION INSTITUTE OF INDIA & ANR. on 12 April 2022

1. The art is non-conformist in character!

We are reminded of Edgar Degas’ poignant observation that “Artis not what you see, but what you make others see.”

2. The respondent Institute is a premier Institute and one wouldexpect it to encourage a liberal thought process and not put coursesconnected with films in any conformists’ box. It is this thought processwhich made us pass the order on 30.11.2021 dealing with the aspect ofcolour blindness. We had sketched out that the colour blindness is not aform of blindness at all but a deficiency in the way you see colour. Thismedical condition makes it difficult to distinguish certain colours such asblue and yellow or red and green, and an estimated eight percent of themale population and less than one per cent of the female populationhave red and green colour deficiency, being the most common form ofcolour blindness.

3. The lis which has arisen before us is from a fundamentalquestion where a person who is colour blind is excluded from pursuing acourse for Diploma in Editing in the Films and Television Institute ofIndia, Pune(FTII)/respondent No.1. It is not necessary for us to get intothe depth of the facts which already stand noticed in the aforementionedorder or the respective submissions of the counsels made on that date.Suffice to say that instead of taking a call itself on whether colourblindness would be an aspect which would be an impediment in goingthrough the course, we found it appropriate to form a committee to look A

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Ainto the issue and connected issues. On suggestions from counsels forparties and our own path of discovery, we constituted a Committee ofthe following:- “(i) Film Director Mr. Ravi K Chandran

(ii) Colourist- Mr. Swapnil Patole

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(iii) Script Ms. Shubha Ramachandra

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(iv) Film Editor Mr. Akkineni Sreekar Prasad

(v) Course Creator/ Mr. Rajasekharan

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HOD, Editing

(vi) Ophthalmologist Dr. Jignesh Taswala

(vii) Mr. Shoeb Alam, Advocate who was the counselin the Committee appointed in Praney Kumar Poddarvs. State of Tripura & Ors. (2017) 13 SCC 351.”

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4. We put a caveat at the inception itself that in view of the passageof time of almost six years, the respondent would have to go through therigors of the process of a selection anew, but dependent on the fate ofthe order to be passed on consideration of the report of the Committee,Eit had the potentiality to remove the impediment in the future on accountof colour blindness, if the Committee so opined.

5. We also considered appropriate to facilitate a morecomprehensive exercise by the Committee to opine on the aspect ofcolour blindness qua all the courses for which it is perceived as aFdisqualification.

6. The report of the Committee has been placed before us. It issigned by all THE members except one i.e. Mr. K. Rajasekaran, HODEditing, FTII who had some caveats which we will consider after noticingthe report of the Committee.

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7. The Committee rightly framed the two issues on which theopinion of the Committee was sought as under:

“i. Whether the course curriculum provided fordiploma in Editing can be successfully completed bythe appellant who suffers from color blindness?

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ii. To facilitate a more comprehensive exercise, therole of the committee would be to opine on the aspectof color blindness qua all the courses for which it isperceived as a disqualification.”

KEY HIGHLIGHTS FROM THE COMMITTEE’SDISCUSSIONS

8. The Committee held about eight online meetings. With a viewto inform itself of the practice of admission of colour blind individualsprevalent in premier international institutes, it short listed and wrote toten top international film and television institutes, it but responses werereceived only from two of them. In the course of deliberations of theCommittee, it was found that the appellant had not been examined bythe an expert Ophthalmologist to ascertain the nature and extent of hiscolour blindness as at the time of seeking admission in the FTII. The eyeexamination was by the Institute’s General Medical Officer. It is inview thereof that an application was filed before this Court on whichorders were passed on 18.02.2022 for the Director, AIIMS to constitutea Committee at the earliest to examine the appellant to ascertain thenature and extent of colour visual deficiency.

9. The report of the AIIMS prepared on 08.03.2022 records thatthe appellant had “red and green colour vision deficiency as per thegrading level of colour perception, the candidate is found to havecolour perception (CP)4”.

10. The Committee has thereafter deliberated on all the aspectsand has submitted its report. It carries various sections.

11. The first section of the report deals with Ophthalmologicalperspective prescription of colour blindness. It discusses: (a) about colourblindness (b) the causes of colour blindness (c) types of colour blindness.

12. Suffice to reproduce the (c) part of the report as under:

“c. Types of color blindness

(i) Red-green color blindness:

The most common type of color blindness makesit hard to tell the difference between red and green.There are 4 types of red-green color blindness:

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·DEUTERANOMALY is the most common typeof red-green color blindness. It makes greenlook more red. This type is mild and doesn’tusually get in the way of normal activities.

·PROTANOMALY makes red look more greenand less bright. This type is mild and usuallydoesn’t get in the way of normal activities.

·PROTANOPIA and DEUTERANOPIA bothmake you unable to tell the difference betweenred and green at all.

(ii) Blue-yellow color blindness:

This less-common type of color blindness makesit hard to tell the difference between blue andgreen, and between yellow and red. There are2 types of blue-yellow color blindness:

·TRITANOMALY makes it hard to tell thedifference between blue and green, and betweenyellow and red.

·TRITANOPIA makes you unable to tell thedifference between blue and green, purple andred, and yellow and pink. It also makes colorslook less bright.

(iii) Complete color blindness:

If you have complete color blindness,you can’t see colors at all. This is alsocalled monochromacy, and it’s quiteuncommon. Depending on the type, youmay also have trouble seeing clearly andyou may be more sensitive to light.Different types of color blindness causeproblems seeing different colors.”

BAR TO FTII COURSES:

13. The Committee thereafter examined the bar to FTII courseson account of colour blindness, keeping in mind the various modules of the curriculum which may be a hurdle for admitting colour blindcandidates, the significance and professional utility of such modules, colourblindness and the occupational role of the professional etc. in order todetermine whether a colour blind candidate, who otherwise possessedcreative potential, ought to be refused admission to a particular TV/Filmmaking course.

14. As per the 2020 FTII prospectus, individuals with colourblindness are ineligible to be admitted to the following course:

“(i) Cinematography, (ii) Electronic Cinematography,(iii) Editing, (iv) Video Editing, (v) Art Direction andProduction Design.”

15. It is the view of the committee that individuals with colourblindness should be permitted to enroll for all courses offered by theFTII. The reasoning which permeates this finding of the Committee isas under:

(a) Film and television creations are collaborative artforms. Restricting entry of colour blind candidatesto film courses may sacrifice creative talent andstultify the development of the art. Inclusivity enrichesthis creative art form by introducing variety, anylimitation can be overcome by assistance in theeducational and professional life.

(b) It is not the role of FTII to decide for candidatestheir future prospects as a film/television professional.If learning limitation of the candidate can be overcomeby making reasonable accommodation or with the helpof an assistant, the candidate should be eligible foradmission to courses offered by FTII.

(C) Film editing is the art, technique and practice ofassembling shots into a coherent sequence and thejob of an Editor is not simply to mechanically putpiece of a film together, cut off film slates or editdialogue scenes. The Film Editor must creativelywork with the layers of images, story, dialogue, music,pacing as well as the actors performances toeffectively “reimagine” and even re-write the film tocraft a cohesive whole.

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1100SUPREME COURT REPORTS

AFILM EDITING CURRICULUM AND COLOR GRADING:

16. The Committee thereafter examined the film editing curriculumand colour grading aspect which is a 20 minute module of colour gradingin the fifth semester. It is opined that there is no relevance of the colourgrading to the role of a professional Film Editor. A Colourist who is aBspecialized professional makes up for the colour enhancement, correctionsetc.

17. The Committee has analyzed the historical perspective of therole which is as late as the year 2000 in the pre-digital film era. Filmediting was carried out on black and white rushes and colour was addedCto the rushes subsequently. The Editor thus, had to only deal with theblack and white rushes and had no requirement for colour vision. Thusthe presence of colour blindness in a person did not prevent him frombecoming an expert Film Editor.

18. Illustratively, Mr. Ravi K. Chandran, Cinematographer informedDthat Sir Roger Deakins CBE, is one of the acclaimed internationalCinematographers and won an Oscar Award apart from being nominated13 times for Oscar Awards for his Cinematographic works and hasdifficulty in operating new age digital equipments, for which he reliesupon assistants. In fact Mr. Chandran opined that he himself relies onthe help of assistants and professionals while handling complex new ageEdigital equipments or to overcome any other limitation where he mayneed help with.

19. A significant aspect noticed was that the 2020 FTII prospectusdid not contain refer to any particular kind or extent of colour blindnesswhich may operate as a bar to admission but mentioned that candidatesFsuffering from colour blindness/colour vision deficiency are ineligible toapply for specialization at serial Nos. 1,2,5, 6 and 7.

EXISTING COLOR EDITING CURRICULUM

20. The next aspect analyzed is the existing colour editingcurriculum. On analysis of the FTII film editing curriculum, it was foundGthat candidates with the following types of colour blindness i.e.Achromatopsia, Tritanopia, Deuteranopia and Protanopia may havedifficulties in successfully completing the existing 20 minutes obstructivecolour element grading module in the Diploma in Film Editing curriculumoffered by the FTII, and individuals with other types of colour blindnessH

will not have any problem in completing the existing curriculum. What isrelevant to note is that the Committee has opined that “colour gradingmodule” has no relevance or nexus with the role of a Film Editor.

BEST PRACTICES IN FOREIGN FILM INSTITUTES:

21. The Committee, in order to better appraise itself, wrote todifferent premier international film Institutes to know their best practices.On the basis of the responses, albeit limited, it was found that there wasno discrimination based on physical limitation etc. and if a fellow neededaccommodation they would make a request to Students’ Affairs Officewith a doctor’s note and no medical examination was required.

22. In fact the response from CalArts further stated that “allreasonable accommodation would be provided to enable a colourblind student to complete their course.” The Committee opined thatFTII, being an internationally acclaimed premier film Institute, shouldset an example by making reasonable accommodation for colour blindcandidates. The art of film making is a collaborative art form and anylimitations would be compensated by the team of professionals. Thus,the all inclusive approach followed by premier foreign Institutes supportsa view that FTII too should open its doors to colour blind individuals.

BLACK AND WHITE FILMS:

23. The Committee thereafter has deliberated on black and whitefilms which are an integral genre of the film industry where the colourblind individual will have no impediment in creating a black and whitefilm. That itself has been opined as a good reason to not prevent colourblind individuals to the film schools. Illustrations have been given ofblack and white films which have received critical acclaim includingSchindler’s List.

PHYSICAL/SENSORY LIMITATION & THE ARTS:

24. An interesting aspect of discussion is under the heading ofphysical & sensory limitation in arts which sets forth individuals withgreat eminence who have seen no bounds on account of colour blindness.We would like to extract the same as under:

“o. PHYSICAL/SENSORY LIMITATIONS & THEARTS: There are myriad instances of filmprofessionals, artists, actors etc. who have excelled A

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at their job despite their personal limitations. Thefollowing instances amplify the argument:

i. Madhu Ambat, a top Indian Cinematographer (alsoan FTII alumnus), has won the National Award forBest Cinematography thrice. He has shot over a 100feature films in various languages. He suffered aparalytic attack at the age of 10, affecting his operatingarm, but he has overcome his limitations to succeedin this physically demanding craft.

ii. Loren Longis a renowned illustrator who hasworked on countless children’s books, includingBarack Obama ‘Of Thee I Sing’, despite hiscolorblindness. At art school, he learned color theoryand ways to work around his disability. He says hehas a heightened sense of values or saturation thathelps him and works with the help of colleagues &family.

iii. An amputee, Sudha Chandranbecome anacclaimed Bharatnatyam dancer. With a Jaipur foot,Sudha went on to perform worldwide & has acted incountless movies and television shows.

iv. Pranav Lal, a blind photographer, captures imagesusing sound.

v. Dame Evelyn Glenniea Grammy award winning,Scottish percussionist began to lose her hearing atthe age of 8 and by age 12 was completely deaf.Together with her band teacher, she developed waysto feel the musical vibration through her hands, feetand face. She literally taught herself to truly ‘listen’with the rest of her body.

vi. Helen Keller, an unforgettable lore. She graduatedsumma cum laude from Radcliffe in Harvard &published 12 books in a language she neither heardnor read. She was both deaf & blind.

vii. Rowan Atkinson with severe speech disabilitiesbecame a great actor, immortalizing Mr. Bean forgenerations to come.

viii. Ian Treherne is profoundly deaf & 95 % blindand a photographer. He shot portraits of the Tokyo2020 Para-Olympic athletes. He also paints, makesfilms and plays music.”

25. The two other aspects discussed including the use of prostheticglasses are also being reproduced hereunder:

“p. CODA: The 94[th] Academy Awards (2022)/OscarAward, for Best Picture, Best Adapted Screenplayand Best Supporting Actor has been conferred onthe film ‘CODA’ (Children of Deaf Adults). The filmcasts several deaf actorsincluding Marlee Matlin,an Oscar and BAFTA (British Academy of Film andTelevision Arts) awardee herself.

q. PROSTHETIC GLASSES: The use of prostheticcolor vision correction glasses such as those marketedunder the brand name EnChroma etc., which mayreduce the impact of color blindness, should beencouraged and allowed to be used by colorblindcandidates applying to the FTII in order to limit theimpact of the condition.”

CONCLUSIONS/ RECOMMENDATIONS:

26. The conclusion and recommendations of the Committee underpara IV are as under:- “IV. CONCLUSIONS/RECOMMENDATIONS

After examination of all relevant issues anddeliberations, the committee makes the followingconclusions/recommendations in response to thereferences forwarded to it:

a. In re. Court’s reference# 1: “Whether the coursecurriculum provided for diploma in Editing can besuccessfully completed by the appellant who suffersfrom color blindness?”

Committee’s recommendations: The appellant Mr.Ashutosh Kumar who has Red and Green color visiondeficiency and has color perception of CP4, as per A

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the AIIMS Medical Board report, will have difficultyin completing the existing course curriculum of thediploma in Film and Editing course offered by theFTII. This is more particularly due to a twenty-minute‘color grading module’ which is part of the Film Editingcurriculum. However, the color grading module hasno relevanceto either the film editing course or tothe film editor’s professional role (Mr. K.Rajasekaran, HoD Editing, FTII, does not agree thatthe color grading module is irrelevant to the filmediting course).

b. In re. Court’s Reference#2: “To facilitate a morecomprehensive exercise, the role of the committeewould be to opine on the aspect of color blindnessqua all the courses for which it is perceived as adisqualification.”

Committee’s recommendation: It is the opinion of thecommittee that :

i. It is recommended that individuals with colorblindness should be permitted to enroll for ALLcourses offered by FTII. There should be nobar to admissions to the FTII for colorblindindividuals. Any limitation can be overcome byan assistant in educational and professionallife.

ii. FTII should make reasonableaccommodation in their curriculum forcandidates with color blindness, in all courseswhere there is a bar to the admission ofcolorblind individuals. For example, byproviding elective/optional modules in thecurriculum for those core credits which mayrequire intensive color appreciation or in anyother way.

iii. The color grading module in the existingDiploma in Film Editing Course curriculum,should either be excluded or made elective, thereby lifting the bar of admissions forindividuals with color blindness.”

27. The aforesaid conclusions clearly show that all individualswith colour blindness should be permitted to enroll for all courses offeredby FTII and any limitation can be overcome. The FTII should makeaccommodation in their curriculum for candidates with colour blindnessand the 20 minutes obstructive element of colour grading module in theexisting Diploma in Film Editing course curriculum should be excludedor made elective.

28. We must at the threshold appreciate the effort put in by theCommittee in looking to all aspects and opining collectively except withone caveat. That caveat is from Mr. K. Rajasekaran, as noticed. Let usnow turn to the caveat.

29. Mr. Rajasekaran somehow does not agree that the colourgrading module is irrelevant to the film editing course as the role of FTIIis to give all inclusive education. He has opined that the syllabus hasbeen designed by experts and was further approved by the academiccouncil and governing council and that opining in favour of the irrelevancyof colour grading module would be “crossing the line and will also bechallenging the knowledge of experts who have very thoughtfullydesigned this syllabus.” The syllabus was designed in 2015. Sevenyears have passed. The hesitancy of Mr. Rajasekaran makes it appearhe would not like to ruffle feathers in the Institute.

30. He has sought to emphasis qua other courses also that thecolour blind students of Cinematography, art production and design willfind it very difficult to carry out studies under these courses again basedon syllabus being “carefully and thoughtfully designed by experts.”

31. Interestingly his final view is “wherever possible, FTII hasalready accommodated colour blinds in as many as 05 courses out of atotal of 11”!

32. Thus, what he opines is a status quo. The FTII knows best,its experts know best. Don’t touch us! Despite the opinion of the expertpanel set up by this Court and unanimous in its decision except onedissent.

33. With due respect, we do not find this course acceptable.

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A34. The theme which permeates the report of the Committee isbased on an appreciation of art and culture, of innovation, intuitiveness,unrestricted by impediments which can be overcome with assistance.

35. We find ourselves wholeheartedly in agreement with themajority view of the Committee and thus, opine that the same is requiredBto be adopted by the FTII in its curriculum. We do not believe that itimpinges on the freedom of the FTII, as sought to be canvassed by thelearned counsel for the respondent, but gives the FTII an even broadercanvass in its pioneering efforts in the field. As the great photographerAnsel Adams once said, “You don’t make a photograph just with acamera. You bring to the act of photography all the pictures youChave seen, the books you have read, the music you have heard, thepeople you have loved.” We also opine that if there are other institutescarrying on a similar educational curriculum, they would also be requiredto adhere to the discussion on this subject as forms the conclusion of theCommittee.D36. We may only notice that possibly a mountain out of a molehillis being made as the particular module is a 20 minute module in thewhole course curriculum and even the Committee has opined that it canbe made elective.

37. The passage of time and our earlier order unfortunately doesEnot permit us to grant relief to the appellant though he has been a flagbearer to see that changes take place for others as also for him for thefuture.

38. It does appear to be a case of “no jam today” but then sometimesthere is a pioneering role played by individuals who may not immediatelyFget the direct benefit.

39. We can only hope that this report as adopted by us and thejudgment would go further in a broader conspectus of appreciation ofthe art forms. We would do well to remember Aristotle, when he saidthat “the aim of art is to represent not the outward appearance ofGthings, but their inward significance.” Although made in the contextof art and the freedom of expression, it would also be apposite toreproduce observations made by one of us (Hon’ble Sanjay Kishan Kaul,J.) in Maqbool Fida Hussain v. Rajkumar Pandey & Ors. (2008 SCCOnLIne Del 562):

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“114. Human personality can bloom fully andhumanism can take deep roots and have itsefflorescence only in a climate where all displayan attitude of tolerance and a spirit ofmoderation.”

40. We would have closed the proceedings with the aforesaidorder but learned counsel for the appellant makes a valiant endeavour topersuade us to revisit our observations made in the order dated 30.11.2021wherein we had opined that the appellant would have to go through theprocess de novo. The submission of the learned counsel is based on theprinciple of “reasonable accommodation” as enunciated in VikashKumar v. Union Public Service Commission & Ors.[1] and PranayKumar Poddar v. State of Tripura & Ors.[2] and he contends that theCourt innovatively granted admission to the candidate exercisingjurisdiction under Article 142 of the Constitution of India.

41. He submits that the appellant had gone through the curriculumfor about six months and he was found medically fit till this impedimentcame in his way. What he suggests is that the candidate should beaccommodated in the next academic year by increasing the strength ofthe course by one person.

42. However, before we consider to embark on such a course,we must have the views of the Institute which will file a response in thisbehalf and endeavour to find a solution. The response be filed withintwo weeks as prayed for.

43. Rejoinder if any, be filed within a week thereafter on thisaspect.

List for further proceedings on 10.05.2022.

Nidhi Jain and Amarendra Kumar(Assisted by : Ajay, LCRA)

Directions issued.

1 (2021) 5 SCC 370

2 (2017) 13 SCC 351

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