Victory for Kashmir documentary

PRASHANT REDDY THIKKAVARAPU| IN Law and Policy | 08 June 2015

Pankaj Butalia wins the right to screen the Textures of Loss without the Censor Board’s cuts.

Of the various forms of media which run into trouble with censorship, either through formal or informal power centres, documentary films and biographies, which lie at the intersection of serious journalism and entertainment, suffer the most.

As quasi-journalist ventures, both biographies and documentary films are expected to report the truth and adhere to the highest values of journalism but at the same time they can expect only a fraction of the profits earned by mainstream entertainment.

In the case of Indian documentary film makers, they have to deal with the added problem of a whimsical Central Board of Film Certification (CBFC), better known as the Censor Board. Pankaj Butalia’s latest victory before the Delhi High Court against four specific cuts ordered by the Censor Board is especially interesting because it demonstrates just how arbitrary the Censor Board can be in its functioning.

The Delhi High Court’s judgment can be read here and for a backgrounder on the case do read Saurav Datta’s excellent piece on the Hoot over here. Butalia’s own piece on the Wire can be read here.

The Censor Board’s diktat

Butalia’s documentary, which is called the Textures of Loss, covers the travails of the ordinary Kashmiri affected by long term violence. The hour long documentary took eight years to finish. When submitted to the Censor Board for certification, for the purpose of public viewing, the Board ordered the insertion of a disclaimer and four cuts in an order dated 30.12.2013.

These cuts pertained to four specific sentences: (i) A nine second clip containing a statement “Jihad is all right….. ….For them jihad is all right”; (ii) An eight second clip with the phrase “disproportionate violence” in the textual graphics/plate; (iii) A ten second clip stating “He had small……they can tell”; (iv) “I beg Allah…..all their families”.

The Appeal

On appeal the Film Certification Appellate Tribunal (FCAT), overruled the Board on the first and third cuts but upheld the second and fourth cuts along with the insertion of the disclaimer.

The tribunal justified the ‘cut’ regarding “disproportionate violence” on the grounds that it “does not do justice to the role of the security forces who faced a storm of stone throwing” and also because it “could have a demoralizing effect on the security forces/ police who were actually victims of stone throwing incidents.”

Similarly, the last cut was justified by FCAT on the grounds that “This sentence speaks against India as a nation and uses expression such as India be damned” and because it “also borders on an anti-national statement…”.

The writ before the Delhi High Court

Butalia then moved the Delhi High Court against the order of FCAT; he also challenged the constitutionality of the film certification rules. The appeal was heard by Justice Rajiv Shakdher, who is the same judge who quashed the government’s travel ban against Greenpeace activist Priya Pillai.

Justice Shakdher overruled the FCAT on the remaining two cuts and also, interestingly the ‘disclaimer’. However, he declined to strike down the certification rules.

First cut – disproportionate violence

Regarding the first cut, Butalia argued that it was his opinion that the security forces in Kashmir responded to stone-pelting with disproportionate force. The context of the use of the words was as follows: “Thousands of stone pelting young men took to the streets in Srinagar and towns around. The para-military forces responded with disproportionate violence which resulted in the deaths of over a hundred young men. The most tragic deaths were those of two young boys Sameer and Wamik. Sameer was eight years old and Wamik was twelve…”.

Justice Shakdher agreed with the petitioner’s argument on his right to assert his viewpoint. The judge reasons that “Unanimity of thought and views is not the test to be employed by censuring authorities in such like situations. The best response that a contrarian can give, is, to either profess his own point of view by producing another film or by writing a book or a blog (as is in vogue these days), and if, this is too tedious or expensive to ignore completely the medium espousing such unacceptable views. The response cannot be to ban, mutilate or destroy the work of another, with whom, one stridently disagrees.”

Second cut – damning  India

The second cut ordered by the FCAT was this: “I beg Allah that this kind of an India be damned that the whole of this India be damned and of our Government here and all their families like they’ve ruined our whole family…”.Butalia points out that the statement was made by a Kashmiri father who had just lost his eight year old son to violence and that “that such minor assertions made by a grief stricken father, cannot effect the resolve and resilience of the country”.

Once again Justice Shakdher agrees with Butalia and observes that “the FCAT has completely misguided itself by not appreciating the context in which the statement has been made.” The judge also makes reference to the Supreme Court’s ruling which laid down the following standard while curbing free speech due to concerns of law and order: “The anticipated danger should not be remote, conjectural or far fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”.

The superfluous disclaimer

Apart from the cuts, the demand to insert the ‘disclaimer’ too was quashed by Justice Shakdher. The Board and FCAT had ordered Butalia to insert the following disclaimer at the beginning of the movie: “The views expressed by individuals in the documentary are solely their own views. Their views are not intended to hurt/defame any person, caste, community, religion, institution or organization”.

Terming the demand ‘superflous’ Justice Shakdher points out that the documentary was basically a first person account and was therefore obviously an expression of the views of individuals.

Regarding the second part of the disclaimer, the judge points out that “if accepted, would almost amount to acceptance of the fact that the portrayal of travails and tribulations of those who recount their sufferings are directed towards a particular, section of the society, caste, creed, religion, institution or organization”.

This, according to him, is “completely untenable” since the entire film is about how civilians are the collateral damage in the tussle for supremacy between the militants and the State.

The certification rules

While Butalia scored a clean victory when it came to cuts and the disclaimer, the Court was not as generous when it came to striking down the Board’s certification rules. It appears that his lawyers made a very weak challenge to the rules because Justice Shakdher notes “during the course of arguments while a general submission was made on behalf of the petitioner that the guidelines were beyond the provisions of Article 19(2) of the Constitution, no attempt was made to demonstrate as to how, any particular guideline, did not fulfil the mandate of Section 5B (1) or Article 19(2) of the Constitution.”

Referring to earlier Supreme Court cases interpreting the guidelines, Justice Shakdher disagreed with Butalia’s argument that the certification guidelines allow the Board to impose its own morality on moviemakers because it is required, under binding Supreme Court judgments, to assess each movie in the context in which it was made and respond to changing values and standards in society.

Most importantly, Justice Shakdher reminds the Censor Board that when “faced with the question as to whether any particular deletion ought to be made or not, the test it is bound to employ (which has evolved over a period of time by courts), is: does the deletion of the scene protect the least capable or the most sensitive or depraved amongst men, or if seen with equanimity, by an average man, does, it fit into the overall theme that the film seeks to portray. If the latter is true, the deletion is not mandated, whether it deals with the depiction of sex, use of swear words, violence etc.”

Will more moviemakers take  Board to Court?

The key takeaway from this judgment is that the Censor Board and FCAT aren’t even applying the standards laid down by the Supreme Court and different High Courts over the years – in fact, they are nowhere close to the standards prescribed by the judiciary.

This just goes to show that movie-makers aggrieved by the silliness of the Censor Board & FCAT should seriously consider moving the High Courts for relief because High Court judges appear to be more competent than FCAT at understanding free speech jurisprudence in this country.

A key problem in encouraging more moviemakers to knock on the doors of the High Courts is that the process can take time. In this case, Butalia was rather lucky to have his case disposed of within 17 months of the Censor Board’s order.

If other moviemakers are serious about pushing free speech boundaries with their art, they will have to take the judicial route and perhaps that is something that should be incorporated into the timeline while planning for the production of a new movie. As somebody once said, democracy doesn’t work on autopilot – if you want more freedom, you have to actively work for it.

The writer is a Delhi-based lawyer.

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