नई दिल्ली।उतर प्रदेश के मुजफ्फरनगर में हुए दंगों के राज से पर्दा उठाने को लेकर बनाई गई दो घंटें 27 मिनट की डाक्यूमेंटरी को सेंट्रल बोर्ड ऑफ फिल्म सर्टिफिकेशन की ओर से सर्टिफिकेट न देने और उस पर फिल्म सर्टिफिकेशन अपीलीय ट्रिब्यूनल की मोहर के खिलाफ डाक्रूूमेंटरी मीरा चौधरी ने अदालत का दरवाजा खटखटा दिया है। डाक्यूमेंटरी में दो भाजपा नेताओं के नामों का जिक्र है।इसलिए इसे सीबीएफसी ने एक पार्टी खासकर भाजपा के खिलाफ बताया है।मीरा चक्रवर्ती की ओर से प्रशांत भूषण ने दिल्ली हाईकोर्ट में याचिका दायर की है।यहां जाने पूरा मामला और पढ़े पूरी याचिका
SYNOPSIS & LIST OF DATES
That the present writ petition is being filed against the order dated 19th August, 2014 passed by the Film Certification Appellate Tribunal, Delhi, (hereinafter ‘FCAT’), wherein the FCAT has refused to interfere into the order dated 30.06.2014, passed by the Central Board of Film Certification (CBFC), refusing to grant certification to the film ‘En Dino Muzaffarnagar’, the FCAT while upholding the order of the CBFC observed that ‘6. We have seen the documentary and we see no reason to interfere with the order of the CBFC which is well reasoned and the documentary definitely is in breach of Guidelines 2 (xii) and (xiii) of the Guidelines of the Certification of Film’. The FCAT further observed that the film has the potential of creating communal disharmony and is highly and openly critical to one political party (BJP) and its top leadership by name and tends to give an impression of the said party’s involvement in communal disturbances.
Brief Introduction of the Petitioner:
That the Petitioner, along with her late husband Shri Shubhradeep Chakravorty has directed the documentary ‘En Dino Muzaffarnagar’. En Dino Muzaffarnagar is a story of grief, hate and fear that shows how local power politics turns the pages of the history to rewrite it. It’s a tale of how the loss of the grief stricken farmers can’t be justified with few vested interests playing the power games. Film shows that during the riots good sense prevailed too. There are positive stories in the film where Hindu-Muslim harmony and brotherhood is at best. It is thought provoking to see what they did during the riots to save human lives and what their outlook towards the whole situation is. Shri Shubhradeep Chakravorty was a noted documentary film maker, who worked relentlessly to unearth the truth behind every incident that shook the nation, especially relating to terror and riots by political parties to gain political mileage. His noted documentaries are as follows:
(i). Godhra Tak: the Terror Trail. It is an investigative documentation of the barbaric incident of 27 Feb 2002, in which coach S-6 of Sabarmati Express was burnt down at Godhra railway station in Gujarat, India.
(ii). ‘Encountered on Saffron Agenda’, a film based on investigative documentation of encounters of Sameer Khan Pathan (22 October, 2002), Sadik Jamal (13 January, 2003), Ishrat Jahan – Javed Seikh (16 June, 2004) and Shorabuddin Seikh (26 November, 2005), all happened in Gujarat.
(iii). ‘Out of Court Settlement’ is based on the tales of killings, beating up and intimidation of several defence lawyers across the country, who used to appear in terror related cases.
(iv). ‘After the Storm’, made in 2012, is based on story of seven former terror accused’s, who were acquitted by court of law. The film highlights the practical reality, wherein young youths, merely because of belonging to a religious group are targeted as perpetrators of crime.
Objectives of the Film ‘En Dino Muzaffarnagar’
The main objective of the film is to make people aware of politics behind the riots and to create right perception, to create dialogue and debate on the issues to be highlighted in the documentary among journalists, activists and political classes. It will help in bringing peace and harmony between Hindu and Muslim community, because the film will clear the doubts and suspicions in the minds of both the communities regarding the real reasons behind the riots. The documentary will also be helping the enquiry commissions appointed after the riot to form a viewpoint. With every screening there will be a panel discussion on the issue. The panel will consist of eminent social activists. The views given by them will be highlighted through channels of mass communication. A demand will arise out of documentary for curbing all anti-constitutional communal activities, identification of miscreants recruited by the Sangh for spreading hatred.
Freedom of Speech & Expression and Films vis-à-vis Reasonable Restrictions under Article 19 (2) of the Constitution of India
Indeed, freedom of speech and expression has now been accepted as a natural right which a human being acquires on birth. It is, therefore, regarded as a basis human right. The words ‘freedom of speech and expression’ appearing in Article 19 (1) (a) of the Constitution of India has been construed by the Supreme Court to include freedom to circulate one’s view by words of mouth or in writing or through audio-visual instrumentalities. Thus, every citizen of this country has right to air his/ her views through the printing and/ or electronic media subject to permissible restriction imposed under Article 19 (2) of the Constitution.
That the Hon’ble Supreme Court in catena of cases has dealt with the issue concerning censorship of films, documentary as well as featured, and has interpreted the provisions of the Cinematography Act, 1952, the Guidelines framed under section 5 B of the Act, in light of Article 19 (1) (a) and article 19 (2) of the Constitution of India.
The CBFC or the FCAT fails to provide a cogent reasoning for refusal to grant certification of the film. In fact, the order shows a complete non-application of mind and appears to have been made at the instance, or to appease larger political parties, who in turn want to avert the danger of unearthing the reality of riots and its political linkages.
1952 Cinematography Act came into existence, with effect from 21.03.1952.
1983 Under section 5 B of the Cinematography Act, 1952 the central government framed Guidelines for certification of films for public exhibition came into existence.
2014 Documentary film ‘En Dino Muzaffarnagar’ was made over a period of about 8-9 months, post Muzaffarnagar riots, it is about the politics of riots and its socio political outfall. The film investigates the situation before, during and after the riots in great details to portray, how Muzaffarnagar faced riots last year, how the politics of hate is being engineered by the politicians for their own benefit and how the divide created by the riots has set the tone of the elections at that time.
20.06.2014 Application for certification of the film” En Dino Muzaffarnagar” was made to Central Board of Film Certification, Regional Office Kolkata.
30.06.2014 The examining committee of CBFC examined the film and recommend for Refusal of Certificate, on account of infringement of paras 2 (xii) & (xiii) of Guidelines for certification of films for public exhibition.
30.07.2014 Appeal under the provisions of Section ‘5C’ of the Cinematograph Act, 1952, was filed with FCAT against the order passed by CBFC, dated 30-06-2014.
19.08.2014 FCAT has refused to interfere into the order dated 30.06.2014, passed by the Central Board of Film Certification (CBFC), refusing to grant certification to the film ‘En Dino Muzaffarnagar’, the FCAT while upholding the order of the CBFC observed that ‘6. We have seen the documentary and we see no reason to interfere with the order of the CBFC which is well reasoned and the documentary definitely is in breach of Guidelines 2 (xii) and (xiii) of the Guidelines of the Certification of Film’. The FCAT further observed that the film has the potential of creating communal disharmony and is highly and openly critical to one political party (BJP) and its top leadership by name and tends to give an impression of the said party’s involvement in communal disturbances.
IN THE HIGH COURT OF DELHI AT NEW DELHI
(EXTRAORDINARY WRIT JURISDICTION)
WRIT PETITION (Civil) NO. _______ OF 2014
IN THE MATTER OF:
MEERA CHAUDHARY ……PETITIONER
VERSUS
CENTRAL BOARD OF FILM
CERTIFICATION & ANR. ……RESPONDENTS
Writ Petition under Article 226/227 of the Constitution of India for quashing and setting aside the order of the Film Certification Appellate Tribunal, New Delhi, dated 19th August-2014.
MEMO OF PARTIES
MEERA CHAUDHARY
W/O: SHUBHRADEEP CHAKRAVORTY
R/O: 674, KAMAL VIHAR APARTMENTS,
PLOT-5, SECTOR-7, DWARKA,
NEW DELHI-110075 ……PETITIONER
Versus
- CENTRAL BOARD OF FILM CERTIFICATION
THROUGH ITS CHAIRPERSON
REGIONAL OFFICE, 8, ESPLANADE EAST
KOLKATA- 700069
- FILM CERTIFICATION APPELLATE TRIBUNAL
THROUGH ITS SECRETARY
MINISTRY OF INFORMATION & BROADCASTING
ROOM NO. 116, ‘A’ WING,
SHASTRI BHAVAN
NEW DELHI- 110001 ……RESPONDENTS
PRASHANT BHUSHAN
COUNSEL FOR PETITIONERS
301, NEW LAWYERS’ CHAMBER
SUPRME COURT OF INDIA
NEW DELHI
DATE: 15.10.2014
NEW DELHI
IN THE HIGH COURT OF DELHI AT NEW DELHI
(EXTRAORDINARY WRIT JURISDICTION)
WRIT PETITION (Civil) NO. _______ OF 2014
IN THE MATTER OF:
MEERA CHAUDHARY ……PETITIONER
VERSUS
CENTRAL BOARD OF FILM
CERTIFICATION & ANR. ……RESPONDENTS
Writ Petition under Article 226/227 of the Constitution of India for quashing and setting aside the order of the Film Certification Appellate Tribunal, New Delhi, dated 19th August-2014.
To,
THE HON’BLE CHIEF JUSTICE AND HER
COMPANION JUDGES OF THE HON’BLE
HIGH COURT OF DELHI AT NEW DELHI
PETITION ON BEHALF OF THE PETITIONER ABOVE NAMED:
MOST RESPECTFULLY SHOWETH:
- 1. That the present writ petition is being filed against the order dated 19th August, 2014 passed by the Film Certification Appellate Tribunal, Delhi, (hereinafter ‘FCAT’), wherein the FCAT has refused to interfere into the order dated 30.06.2014, passed by the Central Board of Film Certification (CBFC), refusing to grant certification to the film ‘En Dino Muzaffarnagar’, the FCAT while upholding the order of the CBFC observed that ‘6. We have seen the documentary and we see no reason to interfere with the order of the CBFC which is well reasoned and the documentary definitely is in breach of Guidelines 2 (xii) and (xiii) of the Guidelines of the Certification of Film’. The FCAT further observed that the film has the potential of creating communal disharmony and is highly and openly critical to one political party (BJP) and its top leadership by name and tends to give an impression of the said party’s involvement in communal disturbances. A copy of the order passed by Hon’ble FCAT, dated 19.07.2014 is annexed herewith as Annexure P-1.
Brief Introduction of the Petitioner:
- 2. The Petitioner, along with her late husband Shri Shubhradeep Chakravorty has directed the film ‘En Dino Muzaffarnagar’, It’s a 2hr 27 minutes feature length film and was made in the period of 8-9 months after the riots in UP. En Dino Muzaffarnagar is a story of grief, hate and fear that shows how local power politics turns the pages of the history to rewrite it. It’s a tale of how the loss of the grief stricken farmers can’t be justified with few vested interests playing the power games. Film shows that during the riots good sense prevailed too. There are positive stories in the film where Hindu-Muslim harmony and brotherhood is at best. It is thought provoking to see what they did during the riots to save human lives and what their outlook towards the whole situation is.
- a. The first independent documentary film made by late Shri Shubhradeep Chakravorty was Godhra Tak: the Terror Trail. It is an investigative documentation of the barbaric incident of 27 Feb 2002, in which coach S-6 of Sabarmati Express was burnt down at Godhra railway station in Gujarat, India. Fifty nine passengers including several Karsevaks died in that fire. The film tries to find out what actually happened at Godhra railway station on that fateful day and how far the allegation of a conspiracy is true. This incident was used to start anti-Muslim riots in Gujarat in 2002.
- b. In 2008, late Shri Shubhradeep Chakravorty finished his second documentary film ‘Encountered on Saffron Agenda’, a film based on investigative documentation of encounters of Sameer Khan Pathan (22 October, 2002), Sadik Jamal (13 January, 2003), Ishrat Jahan – Javed Seikh (16 June, 2004) and Shorabuddin Seikh (26 November, 2005), all happened in Gujarat. It is alleged that the persons killed in so called encounter were on a mission to kill the then Chief Minister of Gujrat, Shri Narendra Modi. Film meticulously tries to find out the truth behind Police stories and politics of encounters in Gujarat.
- c. In 2012, late Shri Shubhradeep Chakravorty came out with third documentary film ‘Out of Court Settlement’. It is based on the tales of killings, beating up and intimidation of several defence lawyers across the country who used to appear in terror related cases. This aforementioned documentary tries to put forth the imminent danger that lawyers face, while dealing which terror cases. Murder of lawyers like, Shahid Azmi and Naushad Kashmji fortifies the message conveyed by the aforementioned documentary.
- d. The forth one is ‘After the Storm’, made in 2012, is based on story of seven former terror accused’s, who were acquitted by court of law. The film highlights the practical reality, wherein young youths, merely because of belonging to a religious group are targeted as perpetrators of crime. This film actually built the ground for debate and dialogue on the concerned issue. This film actually provided a much needed storm to the issue of protection of Muslim youth.
- e. The latest documentary was ‘En dino muzaffarnagar’, co-directed with the Petitioner, Meera Chaudhary in 2014. It’s a 2hr 27 mins feature length film and was made in the period of 8-9 months after the riots in UP.
- 3. Facts of the Case:
3.1 That the instant Writ Petition related to the remorseful incident that shook the nation, on account of the potential harm caused to masses on religious lines, the involvement of larger political parties to gain political momentum by airing riots and consequently, to win over the last parliamentary Election, 2014, on religious lines, can never be scored out.
3.2 That the fact of the present writ petition pertains to a documentary film titled ‘En Dino Muzaffarnagar’, a 2hrs 27mins long documentary, which investigates politics of riots and its socio–political outfall. It is a story of grief, hate and fear that shows how local power politics turns the pages of the history to rewrite it. It’s a tale of how the loss of the grief stricken farmers can’t be justified with few vested interests playing the power games. Film shows that during the riots good sense prevailed too. There are positive stories in the film where Hindu-Muslim harmony and brotherhood is at its best. It is thought provoking and heart-warming to see what they did during the riots to save human lives and what their outlook towards the whole situation is.
3.3 The film takes into consideration the situation before, during and after the riots in great details to portray, how Muzaffarnagar faced riots, how the politics of hate is being engineered by the politicians for their own benefit and how the divide created by the riots set the tone of the elections at the relevant time.
3.4 That the story unfolds with the graphic depiction of events starting with the introduction of the culture of agrarian society of Western Uttar Pradesh. The film presents Ragini, folk songs which are thoughtful observations of agrarian society of the region. It engages audience in a dialogue of how hate crimes take shape. The film portrays a series of incidents that took place in Muzaffarnagar and led to differences among the communities and riots in the aftermath. Stories of one ‘panchayat’ after another ‘panchayat’ and provocative speeches delivered in them can be heard in camps. The behavior of Jaats on their way to such ‘panchayats’ and back could be another story to be heard.
3.5 For the first time this documentary unravels the so called ‘Love-Jehad’ angle used as a tool in inciting hate crimes among communities. . A minor incident of eve-teasing sparked the riot and everybody including the bureaucracy, security agencies, the police administration, political parties and its leadership, state and the central governments were caught unaware. Actually the preparation for a large-scale violent eruption was ongoing for quite some time. In UP, which is considered as the most important state for parliamentary elections, as it contributes 80 seats out of the total.
3.6 On 16th of May 2014, results of Indian parliamentary elections were declared. Rightwing Bharatiya Janata Party (BJP) and its allies swept the polls. BJP won 73 seats out of 80 seats in Uttar Pradesh including Muzaffarnagar and Kairana (Shamli) seats. Narendra Modi became 15th Prime Minister of India with one out of four BJP Members of Parliament coming from Uttar Pradesh. Divide created by the Muzaffarnagar riots paid off.
3.7 A strong documentary will also serve following purpose:
a) To make people aware of politics behind the riots and to create right perception.
b) To create dialogue and debate on the issues to be highlighted in the documentary among journalists, activists and political classes.
c) It will help in bringing peace and harmony between Hindu and Muslim community, because the film will clear the doubts and suspicions in the minds of both the communities regarding the real reasons behind the riots.
d) The documentary will also be helping the enquiry commissions appointed after the riot to form a viewpoint.
e) With every screening there will be a panel discussion on the issue. The panel will consist of eminent social activists. The views given by them will be highlighted through channels of mass communication.
f) A demand will arise out of documentary for curbing all anti-constitutional communal activities, identification of miscreants recruited by the Sangh for spreading hatred.
3.8 Message that goes out of the film:
a) The direct message that goes out of the film is that the communities are not against each other, but the hatred is incited between them through political design to get political mileage.
b) Riots don’t do well to anyone, except politicians and businessman. Because of the riots both Muslim and Jat community is suffering at extremes. There used to be a symbiotic relationship between the both which has virtually come to an end after the riot.
c) It’s easy to create riots and create communal divide, but it’s hard to fill the gaps and to make people unite.
d) During riots good sense prevailed too. Saviors from both the community are shown in the film and their story teaches lessons of Humanity and peace.
A copy of the original CD, containing the documentary film ‘En Dino Muzaffarnagar’ (2 hr. 27 minutes) is annexed as Annexure P-2.
- 4. That the Petitioner’s husband, Shri Shubhradeep Chakravorty, who was the co-director of the film, he had made an application under section 4 of the Cinematography Act, 1952 for public exhibition of the film ‘En Dino Muzaffarnagar’. The CBFC vide a communication dated 30.06.2014 informed the Petitioner that the Examining Committee has examined the film on 30.06.2014 and recommended for refusal of certificate, observing that ‘Certificate of public exhibition cannot be granted due to infringement of paras 2 (xii) & 2 (xiii) of guidelines for certification of films for public exhibition’. A copy of the communication dated 30.06.2014 by the Regional Officer; CBFC to the Petitioner is annexed as Annexure P-3.
- 5. That the Petitioner preferred an Appeal against the order of CBFC, dated 30.06.2014, under section 5 C of the Act, before the Film Certificate Appellate Tribunal (FCAT), impugning the order passed by CBFC, dated 30.06.2014. The FCAT refused to interfere in the order of the CBFC, dated30.06.2014 observing that ‘6. We have seen the documentary and we see no reason to interfere with the order of the CBFC which is well reasoned and the documentary definitely is in breach of Guidelines 2 (xii) and (xiii) of the Guidelines of the Certification of Film’. The FCAT further observed that the film has the potential of creating communal disharmony and is highly and openly critical to one political party (BJP) and its top leadership by name and tends to give an impression of the said party’s involvement in communal disturbances.
Freedom of Speech & Expression [(Article 19 1 (a)] and Films vis-à-vis Reasonable Restrictions [Article 19 (2)]:
- 6. That the constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what view shall be voiced largely into the hands of each of us, in the hope that the use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests (Justice Harlan in Cohen v. Calofornia, 1971, 403 U.S. 15).
- 7. John Stuart Mill, a great thinker of 19th century, in his famous treatise ‘Utilitarianism, Liberty and Representative Government’ neatly explained the importance of free speech and expression in the following words:
“But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wring they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error”.
- 8. Indeed, freedom of speech and expression has now been accepted as a natural right which a human being acquires on birth. It is, therefore, regarded as a basis human right. The words ‘freedom of speech and expression’ appearing in Article 19 (1) (a) of the Constitution of India has been construed by the Supreme Court to include freedom to circulate one’s view by words of mouth or in writing or through audio-visual instrumentalities. Thus, every citizen of this country has right to air his/ her views through the printing and/ or electronic media subject to permissible restriction imposed under Article 19 (2) of the Constitution.
- 9. In the instant case of the Petitioner, the Respondents have unfairly and arbitrarily rejected the Petitioner’s film and deprived the Petitioner of her right guaranteed under Article 19 (1) (a) of the Constitution of India. The CBFC or the FCAT fails to provide a cogent reasoning for refusal to grant certification of the film. In fact, the order shows a complete non-application of mind and appears to have been made at the instance, or to appease larger political parties, who in turn want to avert the danger of unearthing the reality of riots and its political linkages.
- 10. That the Cinematograph Act lays down that a film shall not be certified if any part of it is against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or involves defamation or contempt of court or is likely to incite commission of any offence. Under section 5B (2) the Central Government has issued the following guidelines.
“A film is judged in its entirety from the point of view of its overall impact and is examined in the light of the period depicted in the film and the contemporary standards of the country and the people to whom the film relates, provided that the film does not deprave the morality of the audience. Guidelines are applied to the titles of the films also.
1. Objectives of Film Certification
i) The medium of film remains responsible and sensitive to the values and standards of society;
ii) Artistic expression and creative freedom are not unduly curbed;
iii) Certification is responsible to social changes;
iv) The medium of film provides clean and healthy entertainment; and
v) As far as possible, the film is of aesthetic value and cinematically of a good standard.
2. In pursuance of the above objectives, the CBFC shall ensure that, inter alia:
xii) Visuals or words contemptuous of racial, religious or other groups are not presented.
xiii) Visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitude are not presented. A copy of the Principles for Guidance in Certifying Films issued under section 5B (2) of the Cinematography Act, 1952 is annexed as Annexure P-4.
Principles Governing Censorship:
- 11. That the Hon’ble Supreme Court in catena of cases has dealt with the issue concerning censorship of films, documentary as well as featured, and has interpreted the provisions of the Cinematography Act, 1952, the Guidelines framed under section 5 B of the Act, in light of Article 19 (1) (a) and article 19 (2) of the Constitution of India. In K A Abbas v. Union of India (AIR 1971 SC 481), the film in question was ‘A Tale of Four Cities’, the supreme court while interpreting the provisions of Constitution and the Cinematography Act, observed that “The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and forever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line are to be drawn where the average man moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman’s legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth”.
- 12. That in the case of Ramesh Chhotalal Dalai v. Union of India (AIR 1988 SC 775), challenge was made to the telecast of a film ‘Tamas’ which depicted the violence, killing and looting that took place during the partition of the country. The Supreme Court observed “Is some scenes of violence, some nuances of expression or events in the film can stir up certain feelings in the spectator, an equally deep, strong, lasting and beneficial impression can be conveyed by scenes revealing the machinations of selfish interests, scenes showing comradeship, help and kindness which transcends the barriers in religion”. It was held that ‘viewed in its entirety’, the film was capable of creating a lasting impression of this message of peace and coexistence and that people are not likely to be obsessed, overwhelmed or carried away by the scenes of violence or fanaticism shown in the film.
- 13. That the Hon’ble Supreme Court in S Rangarajan v. P Jagjivan Ram (1989 2 SCC 574), further elaborated the concept of Article 19 (1) (a) of the Constitution of India by observing as follows; “Freedom of expression which is a legitimate and constitutionally protected cannot be held to ransom, by an intolerant group of people. The fundamental freedom under Article 19(1) (a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and of convenience or expediency. 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.”
- 14. That as and when the state and its instrumentalities have tried to jeopardize the natural right guaranteed to citizens under Article 19 (1) (a) of the Constitution of India, the Hon’ble Supreme Court has come to the rescue to interpret restrictions strictly and narrowly. In Life Insurance Corporation of India v. Manubhai D Shah (1992 3 SCC 637), the Supreme Court underscored that the restrictions under Article 19 (2) on freedom under Article 19 (1) (a) of the Constitution has to be interpreted strictly and narrowly. It was held “But since permissible restrictions, albeit reasonable, are all the same restrictions on the exercise of the fundamental right under Article 19(1)(a), such restrictions are bound to be viewed as anathema, in that, they are in the nature of curbs or limitations on the exercise of right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities that seek to impose them. The burden would therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable are permissible in law.”
- 15. That it is necessary in the context of the instant case to recall the observations made by the Hon’ble Supreme Court in Bobby Art International v. Ompal Singh (1996 4 SCC 1), that “A film that illustrates the consequences of a social evil necessarily must show that social evil. The guidelines must be interpreted in that light. No film that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil”. Therefore, it is clear that the Apex Court has always placed a broad interpretation on the value and content of Article 19 (1) (a), making it subject only to the restrictions permissible under Article 19 (2) of the Constitution of India.
- 16. That in the case of Director General, Directorate General of Doordarshan v. Anand Patwardhan (AIR 2006 SC 3346), the Supreme Court affirmed the decision of the Hon’ble Bombay High Court and observed that the film no doubt dealt with the communal violence, but the attempt of the film maker was to portray the miseries of the innocent victims of communal riots. The Apex Court observed that “The message of the filmmaker cannot be gathered by viewing only certain portions of the film in isolation but one has to view it as a whole. There are scenes of violence, social injustices but the film by no stretch of imagination can be said to subscribe to the same. They are meant to convey that such social evils are evil. There cannot be any apprehension that it is likely to affect public order or it is likely to incite commission of an offence.”
- 17. That the Guideline 2 (xii) requires the CBFC to ensure that the film does not present ‘visuals or words contemptuous of racial, religious or other groups are not presented’ and Guidelines 2 (xiii) requires it to ensure that ‘visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitude are not presented’. The burden of showing that the film contains words contemptuous of racial, religious and other groups, and/ or, communal, obscurantist, anti-scientific and anti-national activities is upon the state. Neither the CBFC, nor the FCAT have failed to show why the documentary film ‘En Dino Muzaffarnagar’ violated Guidelines 2 (xii) & 2 (xiii) of the Guidelines for Film Certification. The order passed by the CBFC, as well as the FCAT show complete non-application of mind and arbitrary exercised of power to restrict Petitioner rights guaranteed under Article 19 (1) (a) of the Constitution of India.
- 18. That a feature film ‘Chand Bhuj Gaya’ which depicted the travails of the life of a young couple- a hindu boy and a muslim girl, whose friendship and lives are torn as under in riot in the State of Gujrat formed the subject matter of F A Picture International v. CBFC (AIR 2005 Bom. 145), the CBFC refused to certify the film and the order of CBFC was confirmed by the FCAT. The reasoning advanced by the CBFC and FCAT was that the film depicted gruesome communal violence, which would foment communal disharmony. The CBFC further held that ‘Gujrat violence is a live issue and a scar on national sensitivity. Exhibition of the film will certainly aggravate the situation’. The Bombay High Court reversed the decision of the CBFC and FCAT observing that “Dissent is the quintessence of democracy. Hence, those who express views which are critical of prevailing social reality have a valued position in the constitutional order. History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon”.
- 19. That in the case of Ramesh Pimple v. CBFC (2004 5 Bom. 214), the CBFC and FCAT had refused to grant certification for exhibition of the film ‘Aakrosh’ that focused on the communal riots which took place in Gujrat in 2002. The FCAT held that ‘one side version of particular community and if it shown to masses, not only a selective crowd but anyone and everyone, is bound to provoke communal feeling and desire to revenge’. Setting aside the order of the CBFC and FCAT, the Division Bench of the Bombay High Court observed that “But we are unable to share the views of the tribunal that the riots are now history, and therefore, be forgotten by public to avaoid repetition of such cruel acts. It is when the hour of conflict is over it may be necessary to understand and analyse the reasons for strife. We should not forget that the present state of things is the consequence of past and it is natural to enquire as to the sources of the good we enjoy or for the evils we suffer”.
- 20. That the CBFC as well as the FCAT failed to consider the idea portrayed by the Petitioner and by erroneous interpretation of Guidelines have banned certification of the film. While justifying the order of the CBFC, the FCAT to give the reasons for rejection from certification, it only takes into account the one part of the movie which boldly deals with the ground realities during riots in Muzaffarnagar, the movie has named few leader of some major political paties, only for informing the masses and making them aware of the riot-based politics, for polarizing votes of a particular community. In fact, some of the leaders of Bharatiya Janta Party have been charge sheeted for their role in riots.
- 21. That the instant documentary, if viewed as a whole, is not targeted to a particular political party as observed by the FCAT, rather the objective of the documentary is to make masses aware of the root cause of the gruesome riots that took place. Political parties, larger and smaller, have acted actively to spread the riot and passively to stop it from being fatal, just in order to gain political mileage. As a matter of fact, the film shows what the reality is and the theme of the film is merely educative, informative and is intended for participative democracy, where everyone should come forward to discuss political issue, to understand implications of every act, before action.
- 22. Under the circumstances aforementioned, the Petitioner is constrained to approach this Hon’ble Court amongst the following grounds:
GROUNDS
- I. Because the Hon’ble Tribunal failed not to appreciate that the documentary is merely informative and is aimed to educate the masses and to make people aware of riot-based politics, particularly during elections, that is aimed to polarize voters in favour of one party, the movie nowhere incites or communalize the feelings of the viewers. It does not fall under the restriction as entailed under guidelines 2 (xii) & (xiii) of the Guidelines for Certification of films. In S Rangarajan v. P Jagjivan Ram (1989 2 SCC 574), the Hon’ble Supreme Court elaborated the concept of Article 19 (1) (a) of the Constitution of India by observing as follows; “Freedom of expression which is a legitimate and constitutionally protected cannot be held to ransom, by an intolerant group of people. The fundamental freedom under Article 19(1) (a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and of convenience or expediency. 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.”
- II. Because the Hon’ble Tribunal failed not to appreciate that the order of CBFC was passed with extraneous considerations, non- application of mind and at the instance of larger political party, that is, BJP. The Tribunal’s observation that the film has the potential of creating communal disharmony and is highly and openly critical to one political party (BJP) and its top leadership by name and tends to give an impression of the said party’s involvement in communal disturbances, is sufficient indication of the prejudices with which the Tribunal took the decision not to interfere in the order of the CBFC. The Hon’ble Supreme Court in Bobby Art International v. Ompal Singh (1996 4 SCC 1), has held that “A film that illustrates the consequences of a social evil necessarily must show that social evil. The guidelines must be interpreted in that light. No film that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil”.
- III. Because the Respondents have unfairly and arbitrarily rejected the Petitioner’s film and deprived the Petitioner of her right guaranteed under Article 19 (1) (a) of the Constitution of India. The Hon’ble Supreme Court in catena of cases has held that the issue concerning censorship of films, documentary as well as featured, and has interpreted the provisions of the Cinematography Act, 1952, the Guidelines framed under section 5 B of the Act, in light of Article 19 (1) (a) and article 19 (2) of the Constitution of India.
- IV. Because Guideline 2 (xii) requires the CBFC to ensure that the film does not present ‘visuals or words contemptuous of racial, religious or other groups are not presented’ and Guidelines 2 (xiii) requires it to ensure that ‘visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitude are not presented’. The burden of showing that the film contains words contemptuous of racial, religious and other groups, and/ or, communal, obscurantist, anti-scientific and anti-national activities is upon the state. Neither the CBFC, nor the FCAT have failed to show why the documentary film ‘En Dino Muzaffarnagar’ violated Guidelines 2 (xii) & 2 (xiii) of the Guidelines for Film Certification.
- 23. That the Petitioner has not filed any petition before this Hon’ble Court, or any other Court for the reliefs claimed in the instant writ petition.
PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to –
a) Quash the impugned order of Hon’ble Film Certification Appellate Tribunal and the order of Central Board of Film Certification of dated 19.07.2014 and 30-06-2014 respectively.
b) Direct certificate of unrestricted viewing without any excisions from CBFC. And/or,
c) Grant any other relief or reliefs as may be deemed fit and proper under the circumstances of the case.
Through:
(PRASHANT BHUSHAN)
Advocate for the Petitioner
301, New Lawyers Chamber
Supreme Court of India
(3)
