Film-maker challenges film certification rules

Saurav Datta | The Hoot | 2 February 2015

Documentary film-maker Pankaj Butalia’s The Textures of Loss provokes an SC judge to comment on balanced portrayal. Is there no place for ‘cinema verite’ in documentaries, asks SAURAV DATTA.


In their line of work, it is de rigeur for documentary film-makers to be accused of creating “propaganda”, “agitprop”, or indulging in “negative portrayal”. These accusations are hurled most often by the censoring authorities, or by disgruntled elements determined to block the screening. But the Supreme Court’s charge of bias and contention that a documentary must narrate the story of ‘both sides’ must be examined more closely.

Documentary film-maker Pankaj Butalia’s The Textures of Loss, that tells, through a series of interviews, the plight of suffering Kashmiris during the two decades of violence and conflict seemed to have incurred Justice Vikramjit Sen’s ire.  Hearing a petition filed by Butalia, the judge commented in open court that “it has become fashionable and a question of human rights to talk about one side of a story. Rights are always conferred on two parties and not only on one of them… this is what is happening with activists.” Going further, he rebuked Butalia for not striking a balance by depicting the “alternate view”, that is, the Indian government and Army’s side of the story. According to him, such a lapse on the documentary-maker’s part meant that what was depicted was only his opinion, and not that of the people of Kashmir.

Of course, one might contend that the judge’s comments do not hold any substantive value, because it wasn’t a part of the court’s judgement, and would not even count as obiter (the views expressed by a judge in a court’s decision, which are not strictly related to the facts of the case which was being adjudicated). Curiously, Justice Sen made these comments while recusing himself from the case (the judge reportedly studied in the same college as Butalia and was junior to him).

Butalia’s film was refused a clearance certificate from both the Central Board of Film Certification (CBFC) and the Film Certification Appellate Tribunal (FCAT). He approached the Supreme Court with an application limited to withdrawing the petition before the court and seeking permission to move the Delhi High Court. According to Butalia, the substantive merits of the documentary were not the issue, so the  judges had no occasion or reason to watch the documentary. Justice Sen’s comments were, therefore, outside the scope of the case before him.

On 21 January, Butalia’s case [Pankaj Butalia v CBFC & Ors., WP (Civil) No. 675 of 2015 ] came up for admission before the Delhi High Court’s Justice Rajiv Sakhder. The petition challenged the constitutional validity of the 1983 Rules and, in the course of the hearing, the CBFC’s counsel stated that they were ready to “discuss and settle” (whatever that means!) two contentious scenes, which the FCAT recommended be deleted. However, the CBFC counsel felt that doing away with the rules would lead to ‘chaos’. The court has issued notice on both issues — deletion of scenes as well as the rules.

The next hearing of the case is February 23 but Justice Sen’s comments do beg the question: even if not recorded in the Order, will these not have the potential to prejudice the mind of any judge or bench which goes into the merits of the case at any subsequent point of time? And what of the issue it raises — of objectivity/subjectivity of films or opinions that take a stand?

Objectivity, fairness and accuracy

When the court demands a demonstrable standard of “balance” or neutrality to fulfil some arbitrary concept of “objectivity”, it is essentially insisting upon the documentary maker’s quiescence to the official narrative. ‘The Textures of Loss’ is a series of interviews where Butalia only recorded the statements and opinions of people.

Acclaimed documentary film-maker and tenacious veteran of a number of battles with the censors, Anand Patwardhan, is clear that Justice Sen’s views betray cinematic ignorance about the nature of documentary filmmaking. It is not incumbent on a documentary film-maker to present views that coincide or even resonate with those of any “particular” audience. For a court to ask for only “balanced” or even “palatable” views is profoundly undemocratic, he feels.

Rakesh Sharma, whose documentary Final Solution got a certificate after a long wrangling with the CBFC, is assertive about his prerogative to situate his gaze and vantage point as he deems fit, even if it is on a singular perspective. “Insisting on a multi-sided view of the ‘story’ is a dangerous path to tread in a time when free speech is being readily curbed by emboldened goons, their political masters and various sarkari agencies. Can (the) judiciary arbitrate on the need for or the lack of multiple vantage points, gazes and perspectives? Should it?” he asks.

Interestingly, the court’s view is quite contrary to the stand of the Supreme Court which held, back in 1989, that cherry-picking scenes from a film or documentary is illegal; one must consider the context and the film in its entirety. In 2006, it reiterated this while overruling the excisions imposed by the CBFC on Patwardhan’s documentary Father, Son and Holy War.

Muting human suffering

What were the scenes in Butalia’s documentary that earned the censors’ disapproval and the court’s censure? An inquiry into this reveals both the substantive and procedural fault lines in India’s censorship programme. It is usually the CBFC which hogs the limelight and so gets most of the flak (and deservedly so) but the FCAT, a little known body which remains in the shadows but holds considerable clout and its decisions, if challenged, would fail the test of constitutionality.

The FCAT’s website makes it impossible for the public to know about its composition. The tribunal, a statutory body under the Cinematograph Act, functions under the Information and Broadcasting Ministry.  Its Chairperson, Lalit Bhasin is also the president of the Society of Indian Law Firms and, on his appointment in 2011, he had sworn to uphold and safeguard freedom of expression and promote the arts.

Butalia says that he had to wait for more than six months before the FCAT heard his appeal against the CBFC’s decision. Film-makers are made to pay the hall-rent for the screenings, though rules under the Cinematograph Act only prescribe the fees for the certificate. (Butalia was asked to pay Rs. 12,000 — the cost of renting a hall for the screening. He refused but was forced to pay Rs. 2,000. On the appointed day, the FCAT had clubbed the screening of The Textures of Loss with that of Kaum de Heere, a documentary on Indira Gandhi’s assassins, which still remains denied a certificate from the censors).

The CBFC had objected to four scenes, and the FCAT watched only those, spending one-and-a-half minutes on each. So much for deciding on the context of scenes when the law is clear that no scene should be viewed or judged in isolation. The CBFC’s own guidelines mandate that a film be seen and considered in its entirety, and in 2006,  the Supreme Court took the same view while overruling the excisions imposed by the CBFC on Patwardhan’s documentary Father, Son and Holy War).

One was the opening scene, in which Butalia says that in 2010, the armed forces used “disproportionate force” in quelling a “stone-throwing intifada” by agitated Kashmiris, most of them youth and teenagers. The latter pelted stones to vent their anger and frustration; the soldiers replied with a volley of bullets, felling 102 lives. Bhasin wanted “disproportionate” to be beeped out, because otherwise it would “demoralise the Army,” rendering them incapable of properly fighting the militants.

The second scene was an interview with a man whose eight-year-old child, desperate to get some pears for himself, unknowingly walked into a curfew, and was killed by soldiers who mistook him for a suicide bomber. His father, who brought back his only son’s corpse, with its head crushed and jaw shattered by rifle butts and jackboots, is seen wailing, and uttering a curse in Kashmiri. It translates into “This kind of India should be damned!” This, Bhasin contended, would incite hatred and unpatriotic feelings towards India and the government, and hence cannot be allowed to be seen by the public.

Every appellate body, whether it tasked with deciding upon films, or income tax, always has more than one member, to hedge against arbitrariness. The FCAT is also supposed to decide by a quorum, but no one knows how many members it comprises of, and who all were a part of the quorum which decided upon a particular film or documentary. In Butalia’s case, it was Bhasin and another person, whose name and antecedents he was unaware of. Moreover, even before the screening started, he was made to give a written undertaking that he would not raise any objection on the grounds of the absence of a quorum.

On his part, Butalia asserted that both the demands for excision were illegal since they did not fall under any clause in the Cinematograph Act or the Cinematograph (Certification) Rules, 1983 as well as unconstitutional, since they fell outside the grounds laid down in Article 19(2).

But the FCAT remained unmoved and refused a clearance certificate. This has prompted Butalia to challenge, besides the FCAT’s refusal, the very constitutionality of the 1983 Rules, since according to him they give untrammelled power to the censors, something which the constitution does not permit. And, this arbitrariness is only exacerbated by the way the FCAT functions — with zero accountability of procedure.

The case is a fitting test of the functioning of the censor board and the FCAT, at a time when it is already under a cloud with the resignation of Leela Samson as Chairperson, and the appointment of a new board headed by commercial feature film-maker Pahlaj Nihalani, perceived to be close to the ruling BJP. Whether it also sets down new rules for the very form of documentary film-making, remains to be seen.

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