'Udaipur Files' Row: Delhi High Court Questions Centre's Power In Revisional Jurisdiction To Recommend Cuts In Film

The Delhi High Court on Wednesday (July 30) orally questioned the Centre whether it had the authority to pass the kind of order it did to direct effecting six cuts to the film 'Udaipur Files:Kanhaiya Lal Tailor Murder' while exercising revisional powers under Section 6 of the Cinematograph Act.

A division bench comprising Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela was hearing the plea filed by Mohammed Javed (one of the accused in the Kanhaiya Lal murder case) objecting to the film's release.

On Monday the high court was informed that six cuts have been made to the movie on Centre's recommendation, and the re-certification of the movie is still pending.

During the hearing today, the bench orally asked ASG Chetan Sharma,"The nature of order you passed, you said effect six cuts etc, whether this authority is available under the statute? In the earlier round, this Court has noticed the change of the provision Section 6, as it existed then and now".

For context the present Section 6 pertains to revisional powers of the Central Government.

The court further orally said,

"The order was to decide revision petition under Section 6. There was no order to producer or board (to make cuts). See the earlier order, the court notices the changes in law. Earlier and existing provisions and the changes were noticed. It was noticed clearly what kind of orders can be passed under Section 6...It was a statutory remedy to which the petitioners were relegated. You have to exercise the powers within the four corners of the statute. You can't go beyond that".

ASG pointed to Section 6(2) of the Act and submitted that the high court's July 10 order was appealed against in the Supreme Court.

The court however orally said that its July 10 order did not require the Centre to pass order on the representation, and the petitioners were relegated to avail remedy of Section 6.

"You have to exercise it (power) within contours of Section 6. Earlier there was a vast power with you (Centre), you could pass orders as you may deem fit. The provision was declared ultra vires (referring to Karnataka High Court and Supreme Court rulings which led to repeal). You were required to pass orders which are permissible by Section 6. Supreme Court order doesn't say anything," the court added.

Accused's right to fair trial jeopardized by movie's release

During the hearing today, senior Advocate Menaka Guruswamy appearing for the accused petitioner submitted that so far, 160 witnesses remain to be examined in the trial against him and his right to fair trial will be jeopardised by the release of the film.

"The promise of Article 21, right to fair trial is an essential component of what it means to be a citizen in this country. The film producer has expressly said that film is based on chargesheet. Dialogues lifted directly from chargesheet...When such a movie is released in 1,800 theaters, are we expecting every citizen, every judge, every court master, every witness to be unreasonably prudent?" 

She submitted that the threshold for prejudice in the context of speech is "always prudent person" and the test of prudent person spans the witness in a trial court, as well as court staff, judges and public, "because it is an open trial".

Guruswamy submitted that if the court sees the movie, it would find that there is an "enormous amount of hate speech" therein. She further stressed that unlike America or Canada, free speech in India is not unfettered. "Our free speech is fettered by Article 19(2). Thats why our jurisprudence is specific to this country and curtailed when Article 19(2) is triggered," she argued.

Centre's exercise of revisional power violated law

Guruswamy submitted that the Central Government had exercised its revisional powers in a manner which contravenes the statutory scheme of Cinematography Act.

Referring to the statutory scheme of the statute, she submitted that the law envisages three kinds of revisional powers that can be exercised by the Centre. "One power is in Section 2A. The government can say that the film cannot be broadcasted...Second is they (Centre) can change the certification. Third is they can suspend it. Why?...What it cannot do, is what it has done here. Which is suggest cuts, remove dialogues, add disclaimers, modify disclaimers like the sensor board, which it cannot do".

Concluding her submissions Guruswamy said that the truncated nature of Article 19 rights as it exists under Article 19(2) is so because there are "grave consequences" to "hate speech and fair trial of the accused, court system etc".

"At the heart of it is not just right of accused, there is also how we hold ourselves up as a constitutional democracy and court system whose constitution speaks to democracy.There are no fetters on Article 21, fair trial. There are enumerable textual fetters on Article 19(1)(a)," she said. 

Pointing to a 2021 judgment of the Supreme Court, the Chief Justice orally said, "Why we have drawn your attention to this judgment is because it says that once a film goes through the process of film certification by the experts, there is legal presumption in favour of the film being fit for publication. Therefore, powers of judicial review are very very limited. We want to know that what are the tests available to us to interfere in the matter of such nature?"

Two stage filter test

Meanwhile Additional Solicitor General Chetan Sharma appearing for the CBFC submitted, "there is a body of experts and so it happens in this case that it has undergone a two stage filter test. First by board which suggested 55 cuts. All those cuts were those which had purported generic overtones".

He submitted that subjective satisfaction of people does not guide courts.

"...When it comes to law, the legal presumption is that once certificate is granted by process enshrined by statute, and I may add that Karnataka judgment said (that) Centre should not intercede in such matters. Both sides were called upon the see the film. They view. Because the petition in other item, we said every anxiety or issues flagged is taken care of. Notwithstanding that the court said watch the film which was done. Then your lordships said 'you exercise your revisional powers'. A committee was constituted of five members. It has an additional secretary, a joint secretary home, a high official from MEA, additional secretary MEITY, joint secretary MHA and three members from advisory panel not associated with the movie in any manner in the earlier round of certification.

ASG Sharma submitted that the process was carried out by an order of the court and that the committee so constituted had suggested six further cuts and has asked for fortification of the disclaimer. 

If issue is controversial, Film will have to portray it

ASG submitted that films which deal with controversial issues "necessarily have to portray what is controversial".

"If it is controversial, it has to portray it. It is incumbent," he added.

At this stage the court said to the ASG, "You still haven't replied to the question that the central govt while exercising revisional powers and passing impugned order has acted as an appellate board. And the power is not approved of in the Karnataka High Court judgment". 

The matter is next listed on Friday. 

Background

On July 25 the Supreme Court had asked the parties objecting to the release of the movie to approach the Delhi High Court to challenge the Centre's revisional order which approved the movie's exhibition with 6 edits.

Kanhaiya Lal Teli, an Udaipur-based tailor, was brutally murdered in June 2022, allegedly by one Mohammad Riyaz and one Mohammad Ghous.

The perpetrators later released a video claiming the murder was in retaliation for Kanhaiya Lal allegedly sharing a social media post in support of Nupur Sharma, former BJP spokesperson, soon after she made controversial comments about the Prophet.

The case was investigated by the National Investigation Agency, and offences under the Unlawful Activities Prevention Act and the Indian Penal Code framed against the accused. While the trial is progressing before a Special NIA Court in Jaipur, the movie - based on the case - is sought to be released.

On July 10, the Delhi High Court stayed the release of the film, allowing the petitioners before it to approach the Central Government in revision against the certification granted by the Central Board of Film Certification.

The order was passed in a batch of pleas, including a plea filed by the Islamic cleric's body, Jamiat Ulema-i-Hind President Maulana Arshad Madani, which contended that it was communally divisive.