Delhi High Court Stays Release Of 'Udaipur Files' Movie, Asks Centre To Decide On Revision Against CBFC Certificate

The Delhi High Court today stayed the release of the controversial movie "Udaipur Files : Kanhaiya Lal Tailor Murder", allowing Islamic clerics body Jamiat Ulema-i-Hind and other petitioners to approach the Central Government in revision against the certification granted by the Central Board of Film Certification (CBFC) for the movie.

Till the Central Government took a decision on the interim relief on the petitioner's revision application, the High Court stayed the release of the film. The film, said to be based on the 2022 murder of Udaipur-based tailor Kanhaiya Lal, was due for release tomorrow. Jamiat Ulema-i-Hind, through its President Arshad Madani, approached the High Court against the film alleging that it was communally provocative and vilified the Muslim community at large.

The High Court however refused to exercise its writ jurisdiction, observing that the petitioners ought to first exhaust their statutory remedy for revision under Section 6 of the Cinematograph Act.

The Court has allowed the petitioners to exercise revisional powers under Section 6 of the Act by Monday. The Court held that a third-party can also invoke the reivisonal powers under Section 6.

A division bench comprising Chief Justice DK Upadhyaya and Justice Anish Dayal observed : 

"Since we are relegating petitioner to invoke revisional remedy, we provide that till the application for grant of interim relief is decided by the govt, if moved by petitioner, there shall be stay on release of the film."

The High Court ordered:

"Petitioner has not taken recourse to statutory remedy under Section 6 which vests Central govt with adequate powers to declare film to be uncertified or pass orders providing for interim measures like suspension of film from exhibition. It is not that it is impermissible for this court to exercise extraordinary jurisdiction even in a case where petitioner approaching court has not exhausted alternative remedy. But having regard to the facts of the case and taking into consideration the scheme of the Act, we are of the opinion that petitioner ought to have approached central govt under Section 6.

Accordingly, we permit the petitioner to approach the central govt by invoking sec 6 of the Act by Monday and in case petitioner approaches the govt, he may also make a prayer for grant of interim prayers. Once the petitioner approaches central govt by filing revision petition, same shall be considered and decided by govt within one week and of course after giving opportunity to the producer as contemplated under Sec 6(3) of the Act. We also direct that the prayer for interim relief if made shall also be considered and decided."

Petitioners' arguments 

To summarise, the petitioners argued that the film depicts the Muslim community in a negative light and shows a member of the minority community indulging in homosexuality with a minor. It was submitted that controversial statements made by Politician Nupur Sharma against Prophet Mohammed have been depicted in the movie, which further makes the movie more communally provocative.

"The movie starts with a scene where muslim men throws piece of meat in hindu place and another scene shows muslim students being arrested by police. How is it related to the movie? Or murder of that tailor? It is Delhi riots...Please see the film and decide for yourself...This is not right for the country...And this is certainly not art. This is cinematic vandalism," Senior Advocate Kapil Sibal, leading the petitioners, had told the Court during rebuttals.

The movie is an attempt to vilify the community is the petitioners' crux argument, and they pleaded with the Court to see the movie before arriving at any decision.

Whereas, the CBFC and the film producer justified the release of the movie stating that 55 cuts have been made in the movie as a testament to adjust the communal angle, if any. It was submitted that the movie is specific to the crime of Kanhaiya Lal murder and petitioners just want to attack the larger theme of the movie, which is subjective in nature and is protected by Article 19(1)(a).

It was also submitted by the CBFC that the hearing on this petition may be deferred in light of another similar petition before the Supreme Court seeking a stay on the film's release.

Confusion over SC refusing urgent mentioning but saying 'let the movie be released'

At the outset, when the hearing began in the morning before the high court, the bench inquired from  Sibal, for Jamiat, if the Supreme Court had passed any order when the matter was mentioned yesterday. 

The bench asked, "What is reported in newspaper today, that some matter filed by Supreme Court?"

The bench was referred to the LiveLaw report of yesterday, wherein, while refusing the urgent hearing of the petition before it, the Supreme Court said: "let it (film) be released".

Additional Solicitor General (ASG) Chetan Sharma, appearing for the Union and the CBFC, submitted that the Supreme Court had said, "let it (film) be released".

To this, Sibal clarified that the matter was only mentioned before the Supreme Court, but no orders were passed. 

"Court (SC) said orally, as per the newspaper, that let the screening go on?," the bench queried. Sibal submitted that there was no order to that effect, adding, "I'll ask the learned judge and come back to your lordships. What else can I do".

The bench then kept the matter to be heard at 2:30 pm to enable the counsel to seek clarity. Pursuant to this, Sibal mentioned the matter at 1 pm before a Supreme Court bench comprising Justice Sudhashu Dhulia and Justice Joymalya Bagchi. 

The bench then clarified that it did not pass any orders in respect of the film, and had only refused the urgent listing of the petition. Justice Dhulia said, "We said we are not giving urgent hearing,"

When the high court took up the matter post-lunch, it was informed that the confusion had been clarified, that the Supreme Court did not pass any order, which has also been carried out by LiveLaw.

However, the Court remarked that the confusion was not over the urgent listing of the dispute but over the fact that the Court had said that "let the movie be released", and now, it has been reported that the Court did not say so.

ASG responded that since the Supreme Court refused interim relief, the movie can be released as scheduled. 

However, the Court responded that this is ASG's interpretation, and if that was the case, the Supreme Court have explicitly stated that. "That is your interference. Otherwise, when mention was made in morning today, the court could have said this," remarked the bench.

On this issue, the Court settled the matter by ordering:

"A news published by news portal LiveLaw dated July 9 was relied upon by counsel for respondents and it was submitted that a mention of fixing an early date was made, which was refused by Supreme Court and while refusing, Supreme Court had also observed that let the film be released. It was prayed that proceedings of this petition be deferred. Counsel for petitioner submitted that it is only a mention to take up the matter was made before Supreme Court, which was refused. However, no such order permitting release of film was passed.

Shri Kapil Sibal informs the court that a mention was made by him before Supreme Court. It was informed that only observation made on mention was that urgent hearing was being denied. The said aspect of the matter has also been reported by @LiveLawIndia on July 10. The two news reports as published by LiveLaw are also taken on record. It does appears to us that so far as the writ before Supreme Court is concerned it is only that mention to list the matter was denied. However, no order appears to have been passed in writing to the effect that let the film be released. Accordingly, we are not convinced with prayer made by counsel for respondents to defer hearing of this petition."

Is there any statutory scheme which allows this Court to hear grievances of persons affected by film's certification, asks Delhi HC

While the issue over the mention continued, Sibal submitted that there are primarily two grounds to seek a ban on the movie: the trailer and the content. He stated that the film depicts the homosexuality of a member of a minority community with a child. 

"There is not one positive characteristic of the targeted minority community which is depicted, Sibal argued.

He added that the substance of the statements made by politician Nupur Sharma, which allegedly led to the communal violence, and whose name is changed to Nutan Sharma, is still there in the movie.

Earlier, in morning, Senior advocate Menaka Guruswamy, appearing for another petitioner, had also argued that the "film is simply hateful" and the cuts were made merely for satisfaction of CBFC and were not made in the trailer.

At this juncture, the Court asked if there is any redressal mechanism or appeal available to a person aggrieved by the certification of film granted by the CBFC. As per Section 5C, the remedy of appeal is available to a person applying for film certification if there is any grievance of Board's order in refusing certificate or directing certain modification in the film.

It also inquired if the petitioner can move the Central Government under Section 5E of the Cinematograph Act, 1952, for the suspension of the certification of the movie. However, Sibal responded that the movie is scheduled to be released tomorrow and there is no "question" of moving under this provision now.

"It is not the first time we have come under Article 226. Yes your lordships are hesitant because it is a matter of free speech, but there is a judgment of CJ Khanna now which lays down the law.," Sibal added.

On this, the Court referred to the amended Section 6 of the Act along with Rule 32 of Cinematograph Certification Rules, 2024 and held:

"We may note that section 6 before its substitution contained a phrase "of its own motion" which doesn't occur in substituted provision as it exists today. Accordingly we hold that a person not applicant before board if aggrieved by order of board certifying the film can approach government."

However, it noted that the petitioner failed to take recourse of Section 6, which provides statutory remedy.

Film targets minority community, the petitioner argues 

Sibal further stated initially, the petitioners weren't aware of the exact content of the film, as the apprehension was based on the trailer. However, after the film was shown to them yesterday in a private screening, they discovered that the movie targeted a specific community. 

Yesterday, the screening was arranged after CBFC submitted that the alleged offending portions had been cut. Earlier, in morning, Sibal submitted, "We have gone through the movie. And I am appalled".

This was after the Censor board had submitted that the alleged offending portions in the film had been removed, after which the high court directed the movie's producer to arrange a screening of the film so that counsel for the parties opposing its release could view the same. 

Further, Sibal pointed out that the content of the film violates Section 5B, as the trailer does not conform to the guidelines stipulated in the provision. He mentioned that the CBFC had issued a show cause notice to the film producer in this regard. 

It was also argued that the certification of the film not only violated Section 5B but also is against the 1991 notification of the Central Government.

"The content of the film is violative of Section 5(b). They have accepted that the trailer was shown even though it was not cleared. And it has been shown now on various platforms. They do it cleverly is they had named the film Gyanvapi files. Board says no. So in trailer they changed the name. But they kept the content which was prohibited. Their intent is quite clear because otherwise they wouldn't have changed the name. And they accept that fact," Sibal remarked.

To this, the Court asked ASG Sharma what steps were taken after the trailer showed some portions which were uncertified.

The Court asks: "You issued notice to them saying you uploaded some portion which were uncertified and you directed them to take down, they did it. The other consequence is any contravention entails penal consequences. What did you about that?"

ASG Sharma responded that the CBFC is not concerned in dealing with how social media responds to the trailers of a movie. "There is a Karnataka HC judgment, we are not concerned with the trailers. It is digital media," ASG tells high court.

The bench then questioned if the CBFC is not concerned with the trailers, then why they issued a notice against the trailer depicting uncertified parts. 

ASG Sharma responded that there is a judgment of the Bombay High Court which binds them to issue a show cause notice in such cases. He explained that on June 20, the CBFC certified the film and certain portions were excised, a part of which was shown in the teaser, and therefore, the showcase notice was issued on July 1, after which the trailer with cuts was released on July 2.

To this, when the Court asked why no action has been taken for the contravention of the provisions, ASG Sharma responded: "The law will take its course."

On this, the Court in its order noted that the trailer contained uncertified portions, which led the CBFC to issue show cause notice to the producer on July 1. In the said notice, it was stated that the excised portions of the film has been circulated on social media platforms and such dissemination violates the Cinematograph Act. 

The Court in its order stated:

"The notice further states that exhibition of such excised contents whether partially or full violates the spirit of Rule 27. Quoting two orders of Bombay High Court, the notice further states that such action on part of producer contravenes certification and accordingly, the producer was called upon to show cause as to why legal action be not initiated. The notice also in the interim directed producer to take down all excised contents on every platform. The notice also states that non compliance will attract further proceedings including initiation of penal action as per law...A perusal of reply of producer reveals that it has been admitted that brief teaser version of trailer was released without its certification. It is thus apparent that producer has admitted uploading teaser which contained even portions of film which were ordered to be taken down."

Controversial parts deleted, but petitioners want to challenge thematic contents: CBFC

Further, ASG Sharma submitted that the CBFC made 13 points after which 55 portions were deleted from the movie. Now, the petitioners want to challenge the thematic contents. It was argued that all objections were taken into consideration and no grievance as such exists today in the petitions.

He added that certain portions, like the use of the word 'Deoband' have been removed because as per the petitioner, it impacted the community. Then, the Nutan Sharma-Maulavi debate or Gyanvapi reference has been removed as well, which was referred to by Sibal as offensive.

To this, Sibal vehemently stated that this portion is still there, although modified, but not removed.

"The line has been removed. The board is conscious of the fact that you must not target generally or specifically any community, be it any community…." ASG submitted.

Film crime specific, not community specific: ASG

Nevertheless, ASG Sharma continued pleading that the movie is not community-specific but crime-specific. He argued that the petitioners' case is that of subjective perception, and although they are entitled to have that view, they should not do a disservice to Article 19.

He said: "Your lordships see the movie, it is not Community specific, it is crime specific. Whole theme is that these seeds of communal disharmony are engineered and propagated across the border by a concerted mechanism. This film also has taken statements from the community that we all should live together. Yesterday on the streets of Karachi… those very persons for which operation sindoor was conducted, they again got together….."

However, the High Court questioned the relevance of this statement. It asked: "What is [this] to do with the film?"

ASG Sharma, while referring to certain judgments, averred: "The film cautions people here. It is a crime film. And that we all should live together. That's the theme. If someone has problem with that, I have nothing to say."

He added that the CBFC comprises experts in the area of film making and although the decision of the Board is amenable to writ jurisdiction, it must be cautiously exercised.

You can't justify storyline based on materials collected during investigation: Delhi HC

As the counsel representing the film producer began his arguments and submitted that although the controversial scenes and statements, including that of "Nutan Sharma" have been removed, the reference was taken because these statements are there in the chargesheet of the NIA.

To this, the Court questioned how the chargesheet, which is the subject of the ongoing trial, can be referred to defend the storyline. "You can't justify a story of film on basis of some material collected during investigation," the Court remarked.

Countering Sibal's argument that the Muslim community has been depicted in a negative light, the producer submitted that the 55 cuts have been made in the film to remove objectionable portions.

He also mentioned that huge financial stakes were invoked as 1800 theatres have been booked for the release with the advance sale of over 1 lakh tickets. 

To this, the Court said: "If what they are saying is right, then it is more a reason to stay the screening. if the film is going to be released on this magnitude and has the potential of if what they are saying is right….Magnitude of release of film acts both ways."

Film not crime specific, bleeds violence: Sibal in rebuttal

On the rebuttal, Sibal referred to the judgment of the Supreme Court on Amish Devgan in which the Court made a distinction between hate speech and free speech and stated that Hate speech cannot conceivably contribute in any legitimate way to democracy and repudiates the right to equality.

Referring to the judgment, Sibal rested his case by saying: "The movie bleeds violence, hate speech and targets the community and the community is shown as if it represents ills of the society...This whole movie is visceral hate. Nothing short of that. It is not crime specific at all. The time, the place at which dialogues are.. just look at what they have said."

He also added that the Court needs to look at the background of the person who has produced this movie and at the things he has done in past.

About Madani Petition

The high court was hearing a batch of pleas moved by various parties, including a PIL by Jamiat Ulama-e-Hind President- Maulana Arshad Madani on the grounds of hate speech and communal harmony. The plea further challenges the certification granted by CBFC to the movie for public exhibition. Other petitions were moved by Prashant Tandon and Jawahar Yadav.

The plea challenged the certification granted by CBFC to the movie for public exhibition. It was submitted that the trailer of the movie is replete with dialogues and instances that had led to communal disharmony and therefore carries the potential to again “stoke the same communal sentiments.”

“The movie, purported to be the story of the murder of one Kanhaiya Lal in 2022, in fact unabashedly depicts court scenes, the statement made by a sitting Chief Minister supporting one party in the case and also explicitly mentions the controversial statement made by a politician - Nupur Sharma - which had resulted in communal violence and, in turn, the gruesome murder of Kanhaiya Lal,” the plea stated.

It added that the trailer seeks to portray an entire community in a prejudicial manner, violating the right to live with dignity for the members of the said community.

Furthermore, the plea said that the release of the has the potential to inflame communal tensions and disrupt public order, resulting in vilifying an entire religious community.

Apart from seeking ban on release of the film, the plea also sought a direction on the Union Ministry of Information and Broadcasting to take immediate measures for the removal of the trailer from all digital and social media platforms.

Title: MAULANA ARSHAD MADANI v. UNION OF INDIA & ORS and other connected matters