'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 releaseDuring 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 lawGuruswamy 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 ...

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

Nupur Thapliyal

Tags