This was a film on the issue of the assassination of former Indian prime minister Rajiv Gandhi. It was also cleared by the censor board, but various political parties in Tamil Nadu, including the BJP, which ironically has been demanding tough action against Rajiv’s Tamil assassin, and members of which have been critical of the Congress for subordinating geopolitical interests viz-a-viz Sri Lanka to Tamil appeasement, protested against the film for showing Tamils in bad light, though that was not the case by any means. Mumbai BJP president Ashish Shelar wrongly said that "the film is an effort to glorify a particular political party and its leaders by demeaning [an]other set of people”[73] and that “this cannot be permitted", and threatened to stall the release of the film in Mumbai.[74]
The Madurai bench of Madras High Court dismissed a petition to ban the film,[75] although it accepted a similar petition to ban the film in Tamil Nadu—to cancel the clearance certificate by the Central Board of Film Certification (CBFC) and send notices to the director and producers of the film, Tamil Nadu Director General of Police, the chairman of the CBFC. The hearing was posted on August 21.[76] Upon hearing the arguments, the court refused to grant an interim injunction to prevent the release of the Hindi version, while noting the Tamil version should not be released without the CBFC's clearance, which was later obtained.[77]
G. Ocean of Tears
This is a documentary funded by the I&B Ministry, Govt. of India, on a gang-rape committed by Indian Army men in the village of Kunan Poshpora in Kashmir. Indeed, many such gross human rights violations have been carried out by Indian military and paramilitary personnel in the valley, as also in the north-east, and commercial Bollywood movies like Lamhaa (which has been mentioned earlier in this book) and Dil Se have dealt with the issue. The censor board cleared this government-funded documentary too.
However, the central government has prohibited the screening of this film, and is not even willing to follow the directions of the United Nations Human Rights Commission on the matter of lifting the prohibition! Two screenings, one in Kashmir University and another in Aligarh Muslim University (AMU), were cancelled owing to the prohibition by the government[78], though it must be mentioned that prior to that, the film has been screened in Kolkata, Mumbai, Nepal and the United States.
[However, we, the authors, would like to mention that while it is fine that AMU wished to screen this documentary, such humanitarian concern should not be driven only by a sense of religious fraternity (we are not saying that that was the case here necessarily, but passing a general comment) and no impartial observer can deny the pain experienced by the Kashmiri Hindus who had to leave their homeland, or the patent fact that the secessionist militants also committed gross human rights violations, even against the fellow Kashmiri Muslims they claimed to be fighting for, by way of forced marriages, killings for extortions etc. That said, the prohibition of the screening of the film cannot be justified by any means, for it only showcased the pain of the victims of human rights violations by military personnel but did not make the case for secession.]
While some may believe that the matter is inflammatory, the fact remains that Kashmiri Muslims are well aware of the incident as also other such incidents, and non-Kashmiri Indians too need to be sensitized about the same, which will only lead to a better and more sensitive understanding of the issue. Such stifling of free speech, then, only annoys Kashmiris and deepens their anti-India resentment. On the other hand, had the film been screened, Kashmiri Muslims would have appreciated that there are Indians sensitive to their plight, and that their pain is not going to be overlooked.
IV. THE MUDGAL COMMITTEE REPORT
In February 2013, the Ministry of Information and Broadcasting (I&B) constituted a panel under the chairmanship of retired judge Justice Mukul Mudgal, following the Vishwaroopam controversy to examine how this issue can be resolved. At least superficially speaking, this is a praiseworthy initiative by I&B Minister Manish Tiwari, for it amounts to taking a stand for the sake of freedom of speech and expression overriding vote-bank considerations. While the authors of this book differ with Manish Tiwari on many matters and find his defences of the seemingly indefensible as Congress spokesman absurd, and particularly believe that his baseless diatribe against social activist Anna Hazare (which he later retracted) was very distasteful, on this point, we must say that the initiative is indeed laudable.
Other
than Justice Mudgal, the panel consisted of the following-
i). Mr. Lalit Bhasin, Chairperson,
FCAT;
ii). Ms. Sharmila Tagore, former
Chairperson, CBFC;
iii). Mr. Javed Akhtar, renowned
music composer, writer & lyricist;
iv). Ms. Leela
Samson,Chairperson,CBFC;
v). Mr. L Suresh, Secretary, South
Indian Film Chamber of Commerce and former
President, Film Federation of India;
vi). Ms. Rameeza Hakim, Advocate, Supreme
Court of India;
vii). Mr. Raghvendra Singh, Joint
Secretary (Films), I&B-Member-Convenor.
While the panel delved into many matters like the composition of the censor board as well, on the issue the current book deals with, which going by the newspaper The Hindu seems to be the primary purpose for this panel to be constituted, the panel made some very pertinent observations and recommendations.
“17. lt has been noticed that after a film is produced, has received certification from the Board and is ready for exhibition in theatres, certain vested groups, fringe elements and at times simple publicity seekers create local disturbance on ground, file criminal proceedings and also approach respective High Courts in the country seeking suspension of exhibition of such film. In certain cases, the State Governments, have proceeded to suspend exhibition of such films suo motu or being influenced by such elements or on a perceived threat to law and order with /without invocation of powers under Section 144 of The Criminal Procedure code,l973 thereby prohibiting the assembly of four or more persons. Recent example of such films would be those of Sadda Haq based on the Khalistan movement in Punjab, Aarakshan which was based on the theme of reservation, Kamal Hasan's Vishwaroopam which ran into trouble in South India and closer to the time of this report, the movies Madras Cafe and Ram Leela.
18. The committee strongly empathizes with the plight and predicament of a film maker who has after investment of considerable time, money and creative energies, having gone through the rigors of a certification process is then confronted by such last minute travails. Very often it leads to a situation where a film maker is standing against a Government despite having altered to procedure established by law- We also note that the Government of India being conscious of this burning issue has duly framed as one of the terms of reference of this Committee the following issue:
‘Examine the role of Central Government regarding sanctioning of cinematograph 6lms for exhibition under Entry 60, List I of the Seventh Schedule to the Constitution of India vis-i-vis Enw 33, List II of the Seventh Schedule to the Constitution of India’
19. In order to address this issue, the Committee was first required to analysis the legislative power of the Central Government vis-i-vis that of the State Government on the issue of cinemas. The Lists contained in the 7'r' Schedule to the Constitution of India provide for the subjects upon which the Central Government and State Government may legislate respectively. List I which is the Union List deals with the legislative power of the Central Government and contains Entry 60 which reads as under :-
‘...60. Sanctioning of cinematograph films for exhibition’.
20. On the other hand, Entry 33 of List II which is the State list reads as under:-
‘...33. Theatres and dramatic performances, cinemas subject to the Provisions of entrv 60 of List I. sports, entertainments and amusements.
21. The Committee finds that not only does Entry 60 of List - I categorically provide that the legislation relating to sanctioning of film for exhibition is purely in the domain of the Central Government but this is further clarified by the specific language of Entry 33 of List - II which provides that Entry 33 in the State List is subject to the provisions of Entry 60 of List - I. The Committee therefore concludes that the constitutional and legislative framework as regards cinema is within the domain of Central Government and it ought to be the sole repository of legislative power and executive action as regards the exhibition of films in this country.
22. The Committee strongly recommends inclusion of a statutory provision in Cinematograph legislation to firstly provide that ordinarily the exhibition of a film which has been certified shall not be suspended. Assuming that there are certain circumstances which have arisen during the Page 9 of 17 public exhibition of such certified film leading to a breach of public order or likelihood of such breach, then the Central Government either sao motu or at the behest of the relevant State Government may proceed to pass an order of suspension of exhibition of such film. Such film of suspension ought not to be passed unless an opportunity has first be given to the producer / holder of the certificate, informing him of the grounds of the proposed suspension and to show cause or explain why the film ought not to be so suspended. Any order passed suspending the exhibition of a certified film must be appealable to the FCAT.
23. The provision of law which the Committee would recommend in this behalf is as under :-
‘Power of the Central Government to suspend the exhibition of films in certain cases-
(1) Where the Central Government suo moto or at the behest of a State Government ot the administration of a Union Territory, is of the opinion, that a film which is being publicly exhibited has caused or is likely to cause an imminent breach of public order, it may by order, suspend the further exhibition of such film in such State, Union Territory or part of India and during such suspension the film shall be deemed to be an uncertified film in that State, Union Territory or part as the case may be, and the provisions of section 31 relating to uncertified 6lh shall be applicable to such film.
Provided that no order under sub-Section (1) shall be passed by the Central Government unless the person in whose name the certificate has been issued has been given a Show cause Notice in writing setting out the grounds on which it is proposed to suspend the exhibition of the film and giving him a reasonable opportunity of making a representation in writing 'within such time as may be specified in the notice and if that Person so desires of being heard-
(2) Notwithstanding anything contained in sub Section (1) above, if the Central Government is of the opinion, based on material before it including material furnished by the State Government or the administration of the Union Territory, as the case may be, drat in the interest of public order, it is necessary so to do, it may for the reasons to be recorded in writing summarily suspend the exhibition of the film with a view to make a further inquiry as contemplated in sub Section (1).
(3) An order made under this section shall remain in force for a period of two months from the date thereof, but the Central Government may, if it is of the opinion that the order should continue in force, direct that the period of suspension shall be attended by such further period as it thinks Fit.
(4) Any person aggrieved by any order passed by the Central Government under this Section may prefer an appeal to the Appellate Tribunal under Section 31.
(5) No order of suspension of exhibition of any Film shall be passed by any State Government or the administration of a Union Territory save and except an order passed by the Central Government as provided for in this Section.’
24. The Committee is of the view that a provision of law cast on the basis of the above language would adequately take care of several constitutional as well as legal requirements as below:
24.1. The power and jurisdiction to pass such order would vest with the Central Government keeping in mind its legislative dominance granted by Entry 60 of List - I read with Entry 33 of List - lI of the 7'n Schedule to the Constitution. It would also lead to uniformity throughout the country on the issue of public exhibition;
24.2. The State Government / Local Administration, being the best source and judge of local public order situation would be the appropriate authority to furnish to the Central Government in a given case, inputs as regards breach of public order or likelihood of such breach of public order. The Committee may mention here that present legislation only requires "a breach of peace". This has been elevated to a requirement of "breach of public order" as it is only public order which is recognized as a reasonable restriction on freedom of speech and expression as contained in Article 19 of the Constitution and not a mere breach of peace or likelihood of such breach of peace. The State Government as the source of inputs on public order would further be in consonance with Entry I of List II which provides for public order as a state subject.
24.3. Given the outlay and investment of time, money and creative energy by the film maker it is imperative that the producer / the certificate holder be given a due opportunity of being heard before any reasoned order of suspension of exhibition is passed and a personal hearing if so requested for should be in consonance with the principles of natural justice. Such order would also be appealable before the FCAT.
24.4. The Committee strongly recommends that where required, such order or suspension of exhibition be passed not prior to the intended screening but after and during public exhibition. This will satisfy two important criteria. Firstly, as notice by the Hon'ble Supreme court in the case of Aarakshan i.e. Prakash Jha Productions & Anr. vs. union of India & Ors. now reported as (2011) 8 SCC 372, the very term ‘suspension of exhibition’ presupposes that public exhibition has already taken place, is on-going and the need has arisen to ,suspend' such exhibition. Secondly, passing such an order in a given case after and during such public exhibition will also enable the authorities to arrive at an actual and proper assessment of breach of public order or its likelihood, since the film is in public domain, being publicly exhibited and actual public reaction can be garnered and assessed. An opinion formed on such material is likely to be more objective, based on reality and actual facts rather than a perceived and/or distant likelihood of breach of public order.
25. The Committee also note that various State Governments have passed legislation dealing with regulation of cinemas. The proposed suggested draft bill attached in Appendix I will extend the operation of legislation to the entire country. Any such State legislation where inconsistent will have to be amended and brought in consonance with the draft bill provides for this in the following manner:
Repeal and Savings –
(1) The Cinematograph Act 1952 and is hereby repealed.
***
(4) Any law enacted by the State Government in exercise of its powers under Entry 33 of List II shall continue to be in force, in so far as the provisions of such law a(e not inconsistent with the provisions of this Act.
Power to make Rules –
(1) The Central Government may, by notification in the Official Gazette, make rules for the purposes of carrying out the*provisions of this Act
***
(4) The State Governments and the administration of the Union Territory shall have the power to make Rules for the matter specified in Chapter VII of this Act in so far as consistent with the provisions of this Act related to the States and the Union Territories respectively.
26. Jurisdiction of the Appellate Tribunal-
26.1. Under the present scheme of legislation only an applicant for certification may prefer an appeal to the Film Certification Appellate Tribunal [FCAT]. This leads to a flood of litigation in various High Courts leading to different points of view by different High Courts in the matter. It also provides a handle to unscrupulous elements who either for vested interest or petty reasons, rush to the nearest High Court to seek suspension/ a ban on a film. This in turn leads to a body of law which is disparate in nature and often reflective of the individual predilection of the State or the judge in question. The Committee is of the view that since there is already a specialized Tribunal under the Act, the best remedy would be to expand the jurisdiction of the FCAT to permit any person who is aggrieved by an order of the Board be permitted to file an appeal before the FCAT. This will lead to a beneficial situation where a specialized Tribunal will address issues relating cinema, having to appear before such Tribunal and not have the 'convenience' as it were of rushing to the nearest High Court, this will also filter out busybody and unscrupulous elements to file petitions and litigation with the intention of rabble rousing or publicity. Such expansion of jurisdiction would be in consonance with legislation in other fields of quasi-regulation /licensing such as Securities Appellate Tribunal for the capital markets, the TDSAT as regards telecom, the AERA Appellate Tribunal as regards aviation and so on and so forth. Furthermore a genuinely aggrieved person would not be required to adopt the expensive process of High Court litigation. This in our view would constitute sufficient forum of an alternate remedy which has generally though not always held to be a bar to direct exercise of the Writ Jurisdiction of the High Court.
26.2 In view of the above recommendation, the Committee is of the view that:
i. The jurisdiction of the FCAT be expanded to permit appeals by any person aggrieved by any order passed by the Board.
ii. FCAT to be given the power to grant interim orders in addition to the present
iii. The infrastructure of the FCAT be commensurately augmented in consultation with the Chairperson of the FCAT, including increasing the number of Members and or benches.
iv. A right of appeal to the Supreme Court be provided for from orders passed by the FCAT.”
A brief reference to the movie Ram Leela may be in order, since it has been mentioned in the excerpt of the report cited above. As for this movie, certain sections of Hindus feel that the title outrages religious sentiments owing to the promos being suggestive of the film having sex and vulgarity. While one may agree or disagree with their stand, these people have followed a legal course of action by approaching the judiciary in Delhi and Punjab under Section 295A of the Indian Penal Code (IPC), and they have only asked for a change of title, not a ban on the film.
While in the previous edition of this book, we had suggested that films can be banned in order to prevent law-and-order problems only if there is concrete evidence in the form of police reports, we believe that the stand taken by the Justice Mukul Mudgal Committee is even more radical, and given that they are luminaries in their respective fields and have spent months delving into this issue, we, in our humble capacities, welcome their stand.
V.