ASHUTOSH KUMAR versus THE FILM AND TELEVISION INSTITUTE OF INDIA & ANR.
[2022] 16 S.C.R. 1094, Supreme Court of India, 2022
Outcome: Directions issued
Segment: Ratio
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SUPREME COURT REPORTS
[2022] 16 S.C.R.
ASHUTOSH KUMAR
v.
THE FILM AND TELEVISION INSTITUTE OF INDIA & ANR.
(Civil Appeal No. 7719 of 2021)
APRIL 12, 2022
[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
Education/Educational Institutions: Admission – Disability –
Color Blindness –Diploma course in Editing in the Films and
Television Institute of India – Appellant, colour blind person
excluded from pursuing a course for Diploma in Editing in the Films
and Television Institute of India, Pune(FTII) – Previous order by
this Court that the appellant has to go through the process of
selection de novo due to his color blindness – Appellant relying on
the principle of reasonable accommodation, tried to persuade this
Court to revisit its earlier observations – Thereafter, constitution of
an expert Committee to opine on the aspect of colour blindness as a
disqualification for admission in various courses – Recommendation
by the Committee that individuals with color blindness should be
permitted to enroll ‘for all courses’ offered by FTII and the color
grading module in the existing Diploma in Film Editing Course
curriculum, should either be excluded or made elective – Accepting
the majority opinion of the Committee, it is held that the individuals
with color blindness are required to be adopted by the FTII in its
curriculum – Said direction would also be applicable to other
film and television institutes following a similar educational
curriculum – However, due to the
passage of time and the earlier
order passed by the Court, no relief could be granted to the
appellant.
Maqbool Fida Hussain v. Rajkumar Pandey & Ors.,
(2008) SCC Online Del 562; Vikash Kumar v. Union
Public Service Commission & Ors. (2021) 5 SCC 370;
Pranay Kumar Poddar v. State of Tripura & Ors., (2017)
13 SCC 351: [2017] 2 SCR 797 – referred to.
Case Law Reference
[2017] 2 SCR 797           referred to                             Para 40
   [2022] 16 S.C.R. 1094
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7719
of 2021.
From the Judgment and Order dated 07.03.2017 of the High Court
of Judicature at Bombay in Writ Petition (C) No.12296 of 2016.
Colin Gonsalves, Sr. Adv., Olivia Bang, Satya Mitra, M. Shoeb
Alam, Mohd. Ovais, Advs. for the Appellant.
Ms. Aishwarya Bhati, ASG, Amit Anand Tiwari, Ashutosh Jha,
Ms. Priyanka Telang, Ms. Devyani Gupta, Ms. Manjula Gupta, Om
Prakash Shukla, Gopal Jha, Ms. Manisha Chava, Sughosh Subramanyam,
Amrish Kumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
1. The art is non-conformist in character!
We are reminded of Edgar Degas’ poignant observation that “Art
is not what you see, but what you make others see.”
2. The respondent Institute is a premier Institute and one would
expect it to encourage a liberal thought process and not put courses
connected with films in any conformists’ box.  It is this thought process
which made us pass the order on 30.11.2021 dealing with the aspect of
colour blindness.  We had sketched out that the colour blindness is not a
form of blindness at all but a deficiency in the way you see colour. This
medical condition makes it difficult to distinguish certain colours such as
blue and yellow or red and green, and an estimated eight percent of the
male population and less than one per cent of the female population
have red and green colour deficiency, being the most common form of
colour blindness.
3.
The lis which has arisen before us is from a fundamental
question where a person who is colour blind is excluded from pursuing a
course for Diploma in Editing in the Films and Television Institute of
India, Pune(FTII)/respondent No.1.  It is not necessary for us to get into
the depth of the facts which already stand noticed in the aforementioned
order or the respective submissions of the counsels made on that date.
Suffice to say that instead of taking a call itself on whether colour
blindness would be an aspect which would be an impediment in going
through the course, we found it appropriate to form a committee to look
ASHUTOSH KUMAR v. THE FILM AND TELEVISION
INSTITUTE OF INDIA & ANR.
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into the issue and connected issues.  On suggestions from counsels for
parties and our own path of discovery, we constituted a Committee of
the following:-
“(i) Film Director
 Mr. Ravi K Chandran
(ii) Colourist-  Mr. Swapnil Patole
(iii) Script
 Ms. Shubha Ramachandra
Supervisor
(iv) Film Editor
 Mr. Akkineni Sreekar Prasad
(v) Course Creator/ Mr. Rajasekharan
HOD, Editing
(vi) Ophthalmologist  Dr. Jignesh Taswala
(vii) Mr. Shoeb Alam, Advocate who was the counsel
in the Committee appointed in Praney Kumar Poddar
vs. State of Tripura & Ors. (2017) 13 SCC 351.”
4. We put a caveat at the inception itself that in view of the passage
of time of almost six years, the respondent would have to go through the
rigors of the process of a selection anew, but dependent on the fate of
the order to be passed on consideration of the report of the Committee,
it had the potentiality to remove the impediment in the future on account
of colour blindness, if the Committee so opined.
5. We also considered appropriate to facilitate a more
comprehensive exercise by the Committee to opine on the aspect of
colour blindness qua all the courses for which it is perceived as a
disqualification.
6. The report of the Committee has been placed before us.  It is
signed by all THE members except one i.e. Mr. K. Rajasekaran, HOD
Editing, FTII who had some caveats which we will consider after noticing
the report of the Committee.
7. The Committee
rightly framed the two issues on which the
opinion of the Committee was sought as under:
“i. Whether the course curriculum provided for
diploma in Editing can be successfully completed by
the appellant who suffers from color blindness?
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ii. To facilitate a more comprehensive exercise, the
role of the committee would be to opine on the aspect
of color blindness qua all the courses for which it is
perceived as a disqualification.”
KEY HIGHLIGHTS FROM THE COMMITTEE’S
DISCUSSIONS
8. The Committee held about eight online meetings. With a view
to inform itself of the practice of admission of colour blind individuals
prevalent in premier international institutes, it short listed and wrote to
ten top international film and television institutes, it but responses were
received only from two of them.  In the course of deliberations of the
Committee, it was found that the appellant had not been examined by
the an expert Ophthalmologist to ascertain the nature and extent of his
colour blindness as at the time of seeking admission in the FTII. The eye
examination was by the Institute’s General Medical Officer.  It is in
view thereof that an application was filed before this Court on which
orders were passed on 18.02.2022 for the Director, AIIMS to constitute
a Committee at the earliest to examine the appellant to ascertain the
nature and extent of colour visual deficiency.
9. The report of the AIIMS prepared on 08.03.2022 records that
the appellant had “red and green colour vision deficiency as per the
grading level of colour perception, the candidate is found to have
colour perception (CP)4”.
10. The Committee has thereafter deliberated on all the aspects
and has submitted its report.  It carries
various sections.
11. The first section of the report deals with  Ophthalmological
perspective prescription of colour blindness. It discusses: (a) about colour
blindness (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 makes
it hard to tell the difference between red and green.
There are 4 types of red-green color blindness:
ASHUTOSH KUMAR v. THE FILM AND TELEVISION
INSTITUTE OF INDIA & ANR. [SANJAY KISHAN KAUL, J.]
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·
DEUTERANOMALY is the most common type
of red-green color blindness.  It makes green
look more red. This type is mild and doesn’t
usually get in the way of normal activities.
·
PROTANOMALY makes red look more green
and less bright.  This type is mild and usually
doesn’t get in the way of normal activities.
·
PROTANOPIA and DEUTERANOPIA both
make you unable to tell the difference between
red and green at all.
(ii) Blue-yellow color blindness:
This less-common type of color blindness makes
it hard to tell the difference between blue and
green, and between yellow and red.  There are
2 types of blue-yellow color blindness:
·TRITANOMALY makes it hard to tell the
difference between blue and green, and between
yellow and red.
·TRITANOPIA makes you unable to tell the
difference between blue and green, purple and
red, and yellow and pink.  It also makes colors
look less bright.
(iii) Complete color blindness:
If you have complete color blindness,
you can’t see colors at all.  This is also
called monochromacy, and it’s quite
uncommon. Depending on the type, you
may also have trouble seeing clearly and
you may be more sensitive to light.
Different types of color blindness cause
problems seeing different colors.”
BAR TO FTII COURSES:
13. The Committee thereafter examined the bar to FTII courses
on account of colour blindness, keeping in mind the various modules of
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the curriculum which may be a hurdle for admitting colour blind
candidates, the significance and professional utility of such modules, colour
blindness and the occupational role of the professional etc. in order to
determine whether a colour blind candidate, who otherwise possessed
creative potential, ought to be refused admission to a particular TV/Film
making course.
14. As per the 2020 FTII prospectus, individuals with colour
blindness are ineligible to be admitted to the following course:
“(i) Cinematography, (ii) Electronic Cinematography,
(iii) Editing, (iv) Video Editing, (v) Art Direction and
Production Design.”
15. It is the view of the committee that individuals with colour
blindness should be permitted to enroll for all courses offered by the
FTII.  The reasoning which permeates this finding of the Committee is
as under:
(a) Film and television creations are collaborative art
forms.  Restricting entry of colour blind candidates
to film courses may sacrifice creative talent and
stultify the development of the art. Inclusivity enriches
this creative art form by introducing variety, any
limitation can be overcome by assistance in the
educational and professional life.
(b) It is not the role of FTII to decide for candidates
their future prospects as a film/television professional.
If learning limitation of the candidate can be overcome
by making reasonable accommodation or with the help
of an assistant, the candidate should be eligible for
admission to courses offered by FTII.
(C) Film editing is the art, technique and practice of
assembling shots into a coherent sequence and the
job of an Editor is not simply to mechanically put
piece of a film together, cut off film slates or edit
dialogue scenes.  The Film Editor must creatively
work with the layers of images, story, dialogue, music,
pacing as well as the actors performances to
effectively “reimagine” and even re-write the film to
craft a cohesive whole.
ASHUTOSH KUMAR v. THE FILM AND TELEVISION
INSTITUTE OF INDIA & ANR. [SANJAY KISHAN KAUL, J.]
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FILM EDITING CURRICULUM AND COLOR GRADING:
16. The Committee thereafter examined the film editing curriculum
and colour grading aspect which is a 20 minute module of colour grading
in the fifth semester.  It is opined that there is no relevance of the colour
grading to the role of a professional Film Editor.  A Colourist who is a
specialized professional makes up for the colour enhancement, corrections
etc.
17. The Committee has analyzed the historical perspective of the
role which is as late as the year 2000 in the pre-digital film era. Film
editing was carried out on black and white rushes and colour was added
to the rushes subsequently.  The Editor thus, had to only deal with the
black and white rushes and had no requirement for colour vision.  Thus
the presence of colour blindness in a person did not prevent him from
becoming an expert Film Editor.
18. Illustratively, Mr. Ravi K. Chandran, Cinematographer informed
that Sir Roger Deakins CBE, is one of the acclaimed international
Cinematographers and won an Oscar Award apart from being nominated
13 times for Oscar Awards for his Cinematographic works and has
difficulty in operating new age digital equipments, for which he relies
upon assistants. In fact Mr. Chandran opined that he himself relies on
the help of assistants and professionals while handling complex new age
digital equipments or to overcome any other limitation where he may
need help with.
19. A
significant aspect noticed was that the 2020 FTII prospectus
did not contain refer to any particular kind or extent of colour blindness
which may operate as a bar to admission but mentioned that candidates
suffering from colour blindness/colour vision deficiency are ineligible to
apply for specialization at serial Nos. 1,2,5, 6 and 7.
EXISTING COLOR EDITING CURRICULUM
20. The next aspect analyzed is the existing colour editing
curriculum. On analysis of the FTII film editing curriculum, it was found
that candidates with the following types of colour blindness i.e.
Achromatopsia, Tritanopia, Deuteranopia and Protanopia  may have
difficulties in successfully completing the  existing 20 minutes obstructive
colour element grading module in the Diploma in Film Editing curriculum
offered by the FTII, and individuals with other types of colour blindness
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will not have any problem in completing the existing curriculum.  What is
relevant to note is that the Committee has opined that “colour grading
module” 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 to
different premier international film Institutes to know their best practices.
On the basis of the responses, albeit limited, it was found that there was
no discrimination based on physical limitation etc. and if a fellow needed
accommodation  they would make a request to Students’ Affairs Office
with a doctor’s note and no medical examination was required.
22. In fact the response from CalArts further stated that “all
reasonable accommodation would be provided to  enable a colour
blind student to complete their course.” The Committee opined that
FTII, being an internationally acclaimed premier film Institute, should
set an example by making reasonable accommodation for colour blind
candidates.  The art of film making is a collaborative art form and any
limitations would be compensated by the team of professionals. Thus,
the all inclusive approach followed by premier foreign Institutes supports
a 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 white
films which are an integral genre of the film industry where the colour
blind individual will
have no impediment in creating a black and white
film.  That  itself has been opined as a good reason to not prevent colour
blind individuals to the film schools.  Illustrations have been given of
black and white films which have received critical acclaim including
Schindler’s List.
PHYSICAL/SENSORY LIMITATION & THE ARTS:
24. An interesting aspect of discussion is under the heading of
physical & sensory limitation in arts which sets forth individuals with
great eminence who have seen no bounds on account of colour blindness.
We would like to extract the same as under:
“o. PHYSICAL/SENSORY LIMITATIONS & THE
ARTS: There are myriad instances of film
professionals, artists, actors etc. who have excelled
ASHUTOSH KUMAR v. THE FILM AND TELEVISION
INSTITUTE OF INDIA & ANR. [SANJAY KISHAN KAUL, J.]
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at their job despite their personal limitations.  The
following instances amplify the argument:
i. Madhu Ambat, a top Indian Cinematographer (also
an FTII alumnus), has won the National Award for
Best Cinematography thrice.  He has shot over a 100
feature films in various languages.  He suffered a
paralytic attack at the age of 10, affecting his operating
arm, but he has overcome his limitations to succeed
in this physically demanding craft.
ii. Loren Long is a renowned illustrator who has
worked on countless children’s books, including
Barack Obama ‘Of Thee I Sing’, despite his
colorblindness. At art school, he learned color theory
and ways to work around his disability.  He says he
has a heightened sense of values or saturation that
helps him and works with the help of colleagues &
family.
iii. An amputee, Sudha Chandran become an
acclaimed Bharatnatyam dancer.  With a Jaipur foot,
Sudha went on to perform worldwide & has acted in
countless movies and television shows.
iv. Pranav Lal, a blind photographer, captures images
using sound.
v. Dame Evelyn Glennie a Grammy award winning,
Scottish percussionist began to lose her hearing at
the age of 8 and by age 12 was completely deaf.
Together with her band teacher, she developed ways
to feel the musical vibration through her hands, feet
and face.  She literally taught herself to truly ‘listen’
with the rest of her body.
vi. Helen Keller, an unforgettable lore.  She
graduated
summa cum laude from Radcliffe in Harvard &
published 12 books in a language she neither heard
nor read.  She was both deaf & blind.
vii. Rowan Atkinson with severe speech disabilities
became a great actor, immortalizing Mr. Bean for
generations to come.
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viii. Ian Treherne is profoundly deaf & 95 % blind
and a photographer.  He shot portraits of the Tokyo
2020 Para-Olympic athletes.  He also paints, makes
films and plays music.”
25. The two other aspects discussed including the use of prosthetic
glasses are also being reproduced hereunder:
“p. CODA:  The 94th Academy Awards (2022)/Oscar
Award, for Best Picture, Best Adapted Screenplay
and Best Supporting Actor has been conferred on
the film ‘CODA’ (Children of Deaf Adults). The film
casts several deaf actors including Marlee Matlin,
an Oscar and BAFTA (British Academy of Film and
Television Arts) awardee herself.
q. PROSTHETIC GLASSES: The use of prosthetic
color vision correction glasses such as those marketed
under the brand name EnChroma etc., which may
reduce the impact of color blindness, should be
encouraged and allowed to be used by colorblind
candidates applying to the FTII in order to limit the
impact of the condition.”
CONCLUSIONS/ RECOMMENDATIONS:
26. The conclusion and recommendations of the Committee under
para IV are as under:-
“IV. CONCLUSIONS/RECOMMENDATIONS
After examination of all relevant issues and
deliberations, the committee makes the following
conclusions/recommendations in response to the
references forwarded to it:
a. In re. Court’s reference# 1: “Whether the course
curriculum provided for diploma in Editing can be
successfully completed by the appellant who suffers
from color blindness?”
Committee’s recommendations: The
appellant Mr.
Ashutosh Kumar who has Red and Green color vision
deficiency and has color perception of CP4, as per
ASHUTOSH KUMAR v. THE FILM AND TELEVISION
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the AIIMS Medical Board report, will have difficulty
in completing the existing course curriculum of the
diploma in Film and Editing course offered by the
FTII.  This is more particularly due to a twenty-minute
‘color grading module’ which is part of the Film Editing
curriculum.  However, the color grading module has
no relevance to either the film editing course or to
the film editor’s professional role (Mr. K.
Rajasekaran, HoD Editing, FTII, does not agree that
the color grading module is irrelevant to the film
editing course).
b. In re. Court’s Reference#2: “To facilitate a more
comprehensive exercise, the role of the committee
would be to opine on the aspect of color blindness
qua all the courses for which it is perceived as a
disqualification.”
Committee’s recommendation: It is the opinion of the
committee that :
i. It is recommended that individuals with color
blindness should be permitted to enroll for ALL
courses offered by FTII.  There should be no
bar to admissions to the FTII for colorblind
individuals. Any limitation can be overcome by
an assistant in educational and professional
life.
ii. 
FTII 
should 
make 
reasonable
accommodation in their curriculum for
candidates with color blindness, in all courses
where there is a bar to the admission of
colorblind individuals.  For example, by
providing elective/optional modules in the
curriculum for those core credits which may
require intensive color
appreciation or in any
other way.
iii. The color grading module in the existing
Diploma in Film Editing Course curriculum,
should either be excluded or made elective,
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thereby lifting the bar of admissions for
individuals with color blindness.”
27. The aforesaid conclusions clearly show that all individuals
with colour blindness should be permitted to enroll for all courses offered
by FTII and any limitation can be overcome. The FTII should make
accommodation in their curriculum for candidates with colour blindness
and the 20 minutes obstructive element of colour grading module in the
existing Diploma in Film Editing course curriculum should be excluded
or made elective.
28. We must at the threshold appreciate the effort put in by the
Committee in looking to all aspects and opining collectively except with
one caveat. That caveat is from Mr. K. Rajasekaran, as noticed.  Let us
now turn to the caveat.
29. Mr. Rajasekaran somehow does not agree that the colour
grading module is irrelevant to the film editing course as the role of FTII
is to give all inclusive education. He has opined that the syllabus has
been designed by experts and was further approved by the academic
council and governing council and that opining in favour of the irrelevancy
of colour grading module would be “crossing the line and will also be
challenging the knowledge of experts who have very thoughtfully
designed this syllabus.” The syllabus was designed in 2015.  Seven
years have passed.  The hesitancy of Mr. Rajasekaran makes it appear
he would not like to ruffle feathers in the Institute.
30. He has sought to emphasis qua other courses also that
the
colour blind students of Cinematography, art production and design will
find it very difficult to carry out studies under these courses again based
on syllabus being “carefully and thoughtfully designed by experts.”
31. Interestingly his final view is “wherever possible, FTII has
already accommodated colour blinds in as many as 05 courses out of a
total 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 expert
panel set up by this Court and unanimous in its decision except one
dissent.
33. With due respect, we do not find this course acceptable.
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34. The theme which permeates the report of the Committee is
based 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 the
majority view of the Committee and thus, opine that the same is required
to be adopted by the FTII in its curriculum.  We do not believe that it
impinges on the freedom of the FTII, as sought to be canvassed by the
learned counsel for the respondent, but gives the FTII an even broader
canvass in its pioneering efforts in the field. As the great photographer
Ansel Adams once said, “You don’t make a photograph just with a
camera.  You bring to the act of photography all the pictures you
have seen, the books you have read, the music you have heard, the
people you have loved.”  We also opine that if there are other institutes
carrying on a similar educational curriculum, they would also be required
to adhere to the discussion on this subject as forms the conclusion of the
Committee.
36. We may only notice that possibly a mountain out of a molehill
is being made as the particular module is a 20 minute module in the
whole course curriculum and even the Committee has opined that it can
be made elective.
37. The passage of time and our earlier order unfortunately does
not permit us to grant relief to the appellant though he has been a flag
bearer to see that changes
take place for others as also for him for the
future.
38. It does appear to be a case of “no jam today” but then sometimes
there is a pioneering role played by individuals who may not immediately
get the direct benefit.
39. We can only hope that this report as adopted by us and the
judgment would go further in a broader conspectus of appreciation of
the art forms. We would do well to remember Aristotle, when he said
that “the aim of art is to represent not the outward appearance of
things, but their inward significance.” Although made in the context
of art and the freedom of expression, it would also be apposite to
reproduce observations made by one of us (Hon’ble Sanjay Kishan Kaul,
J.) in Maqbool Fida Hussain v. Rajkumar Pandey & Ors. (2008 SCC
OnLIne Del 562):
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“114. Human personality can bloom fully and
humanism can take deep roots and have its
efflorescence only in a climate where all display
an attitude of tolerance and a spirit of
moderation.”
40. We would have closed the proceedings with the aforesaid
order but learned counsel for the appellant makes a valiant endeavour to
persuade us to revisit our observations made in the order dated 30.11.2021
wherein we had opined that the appellant would have to go through the
process de novo.  The submission of the learned counsel is based on the
principle of “reasonable accommodation” as enunciated in Vikash
Kumar v. Union Public Service Commission & Ors.1  and Pranay
Kumar Poddar v. State of Tripura & Ors.2 and he contends that the
Court innovatively granted admission to the candidate exercising
jurisdiction under Article 142 of the Constitution of India.
41. He submits that the appellant had gone through the curriculum
for about six months and he was found medically fit till this impediment
came in his way.  What he suggests is that the candidate should be
accommodated in the next academic year by increasing the strength of
the 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 this
behalf and endeavour to find a solution. The response be filed within
two weeks as prayed for.
43. Rejoinder if any, be filed within a week thereafter on this
aspect.
List for further
proceedings on 10.05.2022.
1 (2021) 5 SCC 370
2 (2017) 13 SCC 351
Nidhi Jain and Amarendra Kumar
Directions issued.
(Assisted by : Ajay, LCRA)
ASHUTOSH KUMAR v. THE FILM AND TELEVISION
INSTITUTE OF INDIA & ANR. [SANJAY KISHAN KAUL, J.]