Centre Withdraws Order For Cuts In Udaipur Files Film After Delhi High Court Queries, Will Decide On Certification Afresh

After the Delhi High Court on Friday (August 1) questioned the Centre's power in exercise of which it ordered six cuts to the film 'Udaipur Files:Kanhaiya Lal Tailor Murder', it acceded to withdraw the cuts and undertook to decide on the film certification by Wednesday, i.e. August 06.

The film was set to hit the theaters on 11th June. In view of the row over its certification, the producers have now obtained the release date of August 08.

As such, a division bench comprising Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela directed the producer to appear before the govt on Monday at 2 PM and make their submissions.

"We further provide that no further notice be issued for parties to appear before revisional authority. We also direct that parties shall not seek adjournment on their appearance on Monday. After hearing parties, appropriate decision as per law shall be taken by revisional authority on the revision petitions by Wednesday," it ordered.

The Court was dealing with the pleas filed by Jamiat Ulema-i-Hind President Maulana Arshad Madani and Mohammed Javed (one of the accused in the Kanhaiya Lal murder case) objecting to the film's release.

In the previous hearing, the Court 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 while exercising revisional powers under Section 6 of the Cinematograph Act. For context the present Section 6 pertains to revisional powers of the Central Government.

Centre will be flooded with revision pleas, will crash

During the hearing, Additional Solicitor General Chetan Mehta submitted that If Section 6(2) is to be construed standalone in this manner, then the Central Government will become a repository which will receive 2 Lakh revision petitions, which might make it a third appellate authority.

"We cannot. Its the board which can do it. We will be flooded, we will crash," the ASG said.

The ASG further said that even in the centre's recommendatory order, it had not gone by Section 6(2).

"We have said in compliance of the judgment of High Court. Recommendations is just recommendations..." he added. 

Centre didn't give recommendations but directions

The court however remarked:

"These are not recommendations. These are directions. “Producers of the film are hereby ordered”. It is an order to the producer to take further action. This order is not to board. It is to producer. Whether this order leaves any discretion with the producer not to do anything?"

To this the ASG said that its order stated that 'this was the action should be taken'. The court queried if the Centre would continue to say that there is a discretion left with the CBFC.

As the ASG replied in the affirmative the court asked, "Are you sure?" to which the ASG again responded in the affirmative.

When the court asked about the petitioner's grievance, to this the ASG said:

"They have got the sky. They already had the land. What more do they want? They have got everything under the sun. First came 55 cuts, then 6 cuts".

Court remarked that it had not considering anything on merits as it was conscious once film is certified, it cant interfere with opinion of board.

Noting that the film has passed muster of very strict procedure, which comprised of experts, the court said, "The power to interfere in such matters is very limited. But once any issue relating to jurisdiction of any statutory authority comes to court, we are bound to decide that. We are solely on that at the moment...law, rule, statute, procedure are to be followed. They are not merely technical. There are safeguards provided against arbitrariness. We are not concerned with the film at all".

The ASG at this stage stated on instructions that the court may set aside the order and relegate the matter back to pass an order in accordance with the law.

Centre has complied with law and court order

At the outset ASG Chetan Sharma appearing for CBFC submitted that the Cinematograph Act has to be seen as a whole and construed harmoniously. 

Referring to Section 6(2) of the Act, he said that an exercise of power under this provision prefaces that it has to be a notification. 

ASG submitted, "We have not issued the notification. If it is not done, it is deemed in law that the revision petition is dismissed. So far as the cuts are concerned, this follows three things. It follows statutory regime in its entirety because Rule 25 sub rule 10 echoes Section 6(2)". 

He said, "Has centre violated the mandate of Shankarappa judgment? It has kept it self aware. It has not done anything on its own. The certificate is granted. It is not under challenge. Section 5B(2) there is power which is to be read in the interface of Sec 6(2)(a), which says if i have the power to appoint, i have the power to dismiss. If i have the power to award, i have the power to cancel". 

The ASG submitted, "What have I done? I have kept a distance. And because there was the court was pleased to ask parties to view the matter, it was previewed. Cuts were there. It is all beyond the statute...The revising committee, if they have applied their mind…" ASG submitted that the Centre had complied with the Act and order of Constitutional Court.

Rules don't give procedure on Centre's dealing with revision plea

The court at this stage orally said, "We have understood your submission. It is that Sec 5B (2) entrusts Central Government to do anything and Sec 6(2) decision has to be notified and if it is not notified, it will be deemed that their revision petition is dismissed...Section 6 is independent of Section 5B(2). Therefore the order of July 21 has to be considered within scope of power which could be exercised by the central govt under Section 6(2). It is a statutory power. Order passed of the central govt is not passed in executive powers. Here central government is acting as statutory authority. That statutory authority has to be exercised within contours of section 6(2), not beyond that. We appreciate your efforts, the committee members, you included secretary to see law and order, you also included one secretary of dept of foreign affairs, all this we appreciate. But question remains, what nature of order passed by Centre under revisional powers?"

The Court further orally said that the Centre had made certain directions over and above which was done by film certification board which was not permissible here. It said that the relevant rules do not prescribe any procedure on how revision petition has to be dealt with by the central government. 

"Any reference to Rules to the manner in which revisional authority is to be exercised by central government is highly misplaced," the court said. 

At this stage Justice Gedela pointed to Rule 25(1) of Cinematograph Rules and orally said that it refers to application upon representation made under Section 4(2).

"It appears that it is relatable to the board only. Please come to section 8 also–Power to make Rules. What are the various components on which central government can make rules. There is nothing to do with section 6. What you have done is, you have not taken a decision you have given an advisory. That is appreciated," the judge said. 

The Chief Justice remarked that the court appreciates Centre granting a hearing to all the parties however the question remained whether the Centre exercised authority within Section 6(2) or not. 

ASG however said that it was not the centre's argument that the Rules or Section 5B (2) of the Act supplant or usurp section 6(2).

"I am not putting my case in the statutory jacket of the Rules. I am attempting to urge is that sec 6B(1) which is in the negative, which says 'you cannot give certification', it inheres certification also. Legally it inheres," he added. 

The court however remarked that the heading of Section 6 was not deleted adding that the heading of the section plays a role in the interpretation of a provision. 

"It gives nature of the powers made available by a particular section. Revisional powers of central government, this heading still continues," the court remarked. 

Centre has only recommended, not done more than that

ASG however said that revisional powers of centre are not deluded but are rather kept intact after deletion of Sec 6(1).

"It is a wide power. Illustrations are given in law but they don't override the quintessence of a statute. The officer tells me we have not done more than recommend. Today there is no notification," the ASG said. 

The court however said that the only authority available with Centre can, after consideration, say that a particular film is "unfit to be certified". ASG however said that the Centre's consideration is backed by some fairness on its part.

Where do you get power to recommend cuts?

The court at this stage remarked:

"To say that 'we recommended cuts', from where do you derive this power? In that case you defeated their right to revision. Where is the adjudication on their prayer of revision? It is not a representation. It is a revision under section 6 and thus, you are not exercising general powers". 

The court said that it shall pass a detailed order interpreting how the powers are to be exercised and listed the matter for hearing at 2:30pm today. 

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.