Should the Central Board of Film Certification be taking instructions from the Home Ministry?
On April 29, 2016, En Dino Muzaffarnagar, a 147-minute investigative documentary on the 2013 Muzaffarnagar riots that continued for three weeks and claimed 62 lives, was denied a censor certificate for the second time. The Central Board of Film Certification (CBFC) denied the censor certificate to the film, saying the documentary was “highly provocative” and had “great potential of creating communal disharmony.” These charges have not been slapped on En Dino Muzaffarnagar for the first time. The documentary has had a long, frustrating history with the CBFC — the censor board — that is nearly two years old and is symbolic of the manner in which films that the government finds inconvenient are liable to be treated.
The struggle for censor certificate
Exactly two years before that — on April 28, 2014, as a matter of fact — the filmmakers Shubhradeep Chakravorty and Meera Chaudhary screened En Dino Muzaffarnagar at Prithvi Theatre, in Mumbai. This was the first public screening of the movie. A Q&A session followed the screening, where the directors were told that they had made a film that needed to reach a wide audience, and they should apply for a censor certificate.
“We approached the censor board, Kolkata, over the next month, and they banned the film, saying,” Chaudhary pauses to consider her words, “I think they didn’t say anything. They just banned it. They basically said, ‘We can’t give it a certificate because it is communal and anti-national.’”
The censor board had refused to certify En Dinon Muzaffarnagar, stating the documentary had violated “paras 2 (xii) and 2 (xiii) of guidelines for certification of films for public exhibition.” The paras 2 (xii) and (xiii) of the CBFC guidelines state that, “the Board of Film Certification shall ensure that — (…) (xii) visuals or words contemptuous of racial, religious or other groups are not presented; (xiii) visuals or words which promote communal, obscurantism, anti-scientific and anti-national attitudes are not presented.”
Chakravorty and Chaudhary then appealed to the Film Certification Appellate Tribunal (FCAT), a statutory body — “under the Ministry of Information and Broadcasting, Government of India, headed by a retired high court judge and not more than four other members appointed by the central government” — that the filmmakers can approach if they don’t agree with the CBFC’s decision. On August 19, 2014, the FCAT upheld the censor board’s decision, adding, “The film has grave potential of creating communal disharmony. It is highly and openly critical of one political party (BJP), names its top leadership and tends to give an impression of the said party’s involvement in communal disturbances. This is a gross violation of the film certification guidelines.”
En Dino Muzaffarnagar was Chakravorty’s fifth film; however, he was applying for a censor certificate for the first time. His first four films, Godhra Tak, Encountered on Saffron Agenda?, After the Storm and Out of Court Settlement, just like En Dino Muzaffarnagar, were investigative political documentaries, which were screened for press, in universities, and film festivals around the world. On August 25, 2014, in the period when her documentary was struggling for legitimacy, Chaudhary suffered a bigger loss: her husband and her co-director, Chakravorty, died of brain haemorrhage. He was 42 years old.
The legal battle
On October 15, 2014, Chaudhary, through lawyer and activist Prashant Bhushan, filed a writ petition in the Delhi high court, challenging the censor board’s decision. On December 9, high court Justice Vibhu Bakhru ordered the censor board to form a new panel, review the documentary and, if required, pass a “speaking order”, clearly stating the reasons that made the documentary ineligible for a censor certificate. “The court said, ‘You can’t say the whole two-and-a-half-hour long film is communal,’” Chaudhary told The Wire. “You’ve to point out specific parts or themes in the film that are communal or anti-national.”
A new revising committee met in Mumbai in January and examined the film. Chaudhary was also called. After the panel members watched the film, they discussed their decision with Chaudhary. Six days later, she received an e-mail from Raju Vaidya, the Regional Director of CBFC, Mumbai, containing the panel’s decision in the form of a show cause notice, which read: “The Board has come to the conclusion that the film is not suitable for unrestricted public exhibition but may be suitable for public exhibition restricted to adults provided you carry out the excisions/modifications in the film listed in the Annexure.” In other words, the CBFC was ready to certify the film with an A (adult) certificate, with the required cuts. The Annexure read:
“Cut No. 1: Remove the word ‘Hindu’ from ‘Hindu right wing’.
“Cut No. 2: Delete the text ‘Divide created by Muzaffarnagar riots paid off’.
“Cut No. 3: Delete the Bite “Quran Sharif ko jalaya aur uspar pant utarke nanga naaach kiya [sic]”—burnt Quran Sharif and danced on it naked.
“Those three cuts were minor, related to voiceover in the movie,” says Chaudhary. “And it’s a two-and-a-half hour film; a 30-second or a 40-second cut is not going to change the spirit of the film.” Chaudhary was also asked to obtain a no objection certificate from the Animal Welfare Board of India, put an anti-smoking disclaimer and another mandatory disclaimer stating, “Views expressed by the filmmaker in the film do not mean to hurt the feelings and sentiments of any religion/caste and community and individual”. Chaudhary set about in implementing the cuts, disclaimers and obtaining the necessary permissions.
Meanwhile, a week later, the CBFC made news for a totally different reason. On January 16, 2015, Leela Samson, the CBFC’s chairman, resigned after the FCAT cleared Gurmeet Ram Rahim Singh’s film MSG — Messenger of God, citing “interference, corruption and coercion” by the central government. Nine other members of the CBFC resigned the next day. Three days later, on January 20, Pahlaj Nihalani, an erstwhile producer and director, who, right before the 2014 Indian general elections, had produced the six-minute campaign video ‘Har Har Modi, Ghar Ghar Modi’, was appointed the CBFC’s new chairman.
Cuts, no objection certificate and the never ending rounds of CBFC
By the first week of March, in 2015, Chaudhary had obtained the no objection certificate from the Animal Welfare Board of India. She had also implemented the cuts asked by the revising committee. Chaudhary, who was in Mumbai to get her documentary colour-corrected, called Vaidya after it was ready, saying she wanted to submit its DVD. She met Vaidya at his Mumbai office, on March 19, but he refused to receive the DVD. “No, this is not the process. We’ve to call somebody to review the cuts. And when I call that person, then you’ll have to be here, with your DVD,” Chaudhary remembers Vaidya telling her. “You don’t call me, I’ll give you a call.”
Chaudhary told Vaidya that since she lived in Delhi, she couldn’t come to Mumbai often. It’d be better, she said, if he could receive the DVD and give her a receipt. Vaidya said that he needed some time to organise the review screening, and only then he could accept the DVD. He said he’d get in touch with her by the end of the week. From 23 to 27 March, Chaudhary made several phone calls to Vaidya. He neither picked her calls nor answered her texts. On March 27, she went to meet Vaidya, but he wasn’t in office. She met his assistants who refused to accept the DVD on Vaidya’s behalf. They, however, did tell Chaudhary that she needed to insert a minute-long anti-smoking disclaimer, in the form of video, and separately mention the cuts made in the film before it began, for the ease of the viewer. Chaudhary was surprised. She was hearing these conditions for the first time, for they weren’t mentioned in the show cause notice. It said that the film should have an anti-smoking disclaimer, which Chaudhary had included, but it hadn’t specified that it should be in the form of video, not text. Hearing Chaudhary’s complaint, one of Vaidya’s assistants said, “It always happens with filmmakers who are applying for a censor certificate for the first time.”
“They [Vaidya’s assistants in the CBFC office] knew that this case is serious. They said, ‘Accha yeh wahi film hai, Muzaffarnagar pe? Is par toh hum kuch nahin bolenge (oh it’s that same Muzaffarnagar film? Then we can’t say anything on it),’” says Chaudhary, “you should follow what sir is saying.’”
That same evening, Chaudhary had a heated conversation with Vaidya over the phone, over his reluctance to organise the review screening. “Madam, try to understand, it’s a process,” he told her. “I can’t do anything.”
When Chaudhary came back to Delhi, she was diagnosed with “severe depression and low blood pressure,” she remembers. On August 6, Chaudhary wrote a long e-mail to Vaidya, citing their past conversations and reminding him that the CBFC was supposed to call her for a review. He didn’t reply. A few days later, she wrote another long e-mail to Vaidya. He didn’t reply again. She also called him several times. By then, he had stopped taking her calls. In October 2015, Chaudhary, through Bhushan, filed another writ petition in the high court against the CBFC’s delay.
Second writ petition against the delay
“No representative from the CBFC turned up for the first hearing,” she says. “In the second hearing, they asked for more time.” The third hearing had to be postponed, as it was a busy day in court, and their turn didn’t come. On January 18, 2016, in the fourth hearing, the CBFC cited its reasons for denying the censor certificate to En Dino Muzaffarnagar. The CBFC’s response, in parts, read the following:
“The petitioner has never submitted the correct DVD format for verification on the prescribed format and hence the action of the respondent” — the CBFC — “to refuse to grant the film certification is legal and the same warrants no response by this Honourable Court.”
“I was really surprised to know how they can say these things,” says Chaudhary. “Initially, I thought maybe that’s how these things happen, because [Vaidya’s] assistants had told me, ‘Madam, aise hi hota hai [this is how it is],’ that first time filmmakers have to run around a lot. But over the period of time, when he [Vaidya] stopped picking my calls, and when my journalist friend, who lives in Mumbai and went to Nihalani’s office, was told that he doesn’t want to talk about this issue, we realised that this is all done deliberately. I was really surprised to know how they can lie so much.”
Another part of the counter affidavit stated, “It is not denied that the petitioner” — Chaudhary — “approached the concerned section and Regional Officer also, where the procedures were duly explained to the petitioner in detail. The petitioner assured that suggestions recommended by the committee will be carried out and DVD duly carrying the cuts will be submitted for verification and further course of action, but thereafter the petition never turned up with the corrected DVD format for verification on the prescribed format and form. On the other hand, the petitioner has approached this Honourable Court in gross misuse of the process of law and courts.”
“This is just a lie. I’ve the copies of all the mails that I sent him [Vaidya],” says Chaudhary. “We’ve submitted them in the court.”
The counter affidavit’s final part repeated, “It is submitted that unless the petitioner submits the proper DVD after duly carrying out the cuts and suggestions in the prescribed format, along with the required documents in the show cause notice, the DVD cannot be verified by the members and the officer of the CBFC. Once the suggestions/modifications and required documents are found to be in order, only then can the certificate be issued.”
Now, the point of conflict had changed. It had changed from denying a censor certificate to a documentary on the grounds of it being “communal and anti-national” to denying a certificate to it because its “filmmaker hadn’t submitted the DVD in the required format”.
“Meera, do you’ve the DVD here?” Justice Manmohan, during the course of hearing, asked Chaudhary.
She didn’t have the DVD with her in the court, but she had one at her home. If the judge would allow, she could get the DVD right now. The judge agreed; she was given a few hours. “I ran. I have never driven my car so fast,” Chaudhary says, laughing. She gave one copy of the DVD to the judge, and the other copy, she was told, had to be couriered to Kamlakar Kumble, the CBFC’s Office Superintendent, in Mumbai. “So in the next two days,” she says, “I sent it.” Chaudhary waited for a reply. She didn’t get any.
On April 29 this year, two years after En Dino Muzaffarnagar’s first screening, the fifth hearing of the petition was called. During the course of hearing, the CBFC’s counsel produced an order passed by Nihalani, in a letter dated April 21, 2016, which said, “As directed by the Honourable High Court of Delhi,” the letter began, “the petitioner furnished the corrected DVD in the prescribed format for verification on 4.4.2016 of the film ‘En Dino Muzaffarnagar’. The cuts have been verified by the Member on 12.4.2016 and found in order.”
The letter then seamlessly went on to the part that was withheld from Chaudhary all this while, for more than a year. “However, an input was received from the Ministry of Home Affairs, Govt. of India vide letter No. 11034/3/2015-NI. dated 10th March 2015, forwarding the representations received from various persons/organizations regarding ban on the said film. The Home Ministry has opined that the film is highly provocative and instigates communal disharmony between two groups. The film presents wide spread violence and sharp communal division of the society and is full story of vengeance against a community and counter violence. The film has great potential of creating communal disharmony. It is found to be highly and openly critical of one group and certain individuals are condemned by name. The film tries to defame a group of body of individuals by taking names and presents an ex parte view of rights [sic].”
Nexus between CBFC and home ministry
Clearly, in March 2015, when Chaudhary had obtained the necessary certificates and permissions, acted on the CBFC’s suggestions, and prepared her film to be seen by the review panel, the home ministry had already sealed the fate of her documentary. It was highly likely that Nihalani, who has gone on record to say that he’s “proud to be a BJP man” and considers Narendra Modi a “guardian” and his “action hero”, would do precious little to deviate from the direction issued by the central government on a documentary that examines the role of its own party, BJP, in ghastly riots.
This case is still where it began. Even after nearly half a dozen hearings, the CBFC hasn’t been able to come up with reasons that make En Dino Muzaffarnagar, or a substantial part of it, “communal” or “anti-national”. Even the letter sent by the Ministry of Home Affairs is, at best, vague and repetitive. It says its views on the film are shaped by “representations received from various persons/organisations”, but it neither names the “persons” nor the “organisations”. It simply echoes what the CBFC and FCAT had said after viewing the film for the first time (which had made the high court, in the first place, ask the CBFC to give convincing reasons to deny it a censor certificate).
Nihalani’s ‘interest of the nation’
Moreover, Nihalani and the CBFC have continuously made news over the past many months, and nearly never for the right reasons. Nihalani has said, in a past interview, that he doesn’t mind being called “conservative” if it is in the “interest of the nation”; he’s reduced the duration of kisses in movies; he issued a list of 28 cuss words (13 in English, 15 in Hindi) to be banned from films (the list was later withdrawn); he’s denied censor certificate to Kamal Swaroop’s The Dance of Democracy — Battle for Banaras, a documentary based on the electoral tussle between Narendra Modi and Arvind Kejriwal for Varanasi’s Lok Sabha seat.
Nihalani also, for someone in a position of power, sounds strangely insecure. He once bullied a director, maker of a critically acclaimed movie, thus: “What do you new filmmakers think of yourselves? I’ll tell you how films are supposed to be made. Just wait and see what kind of films will be made in the next two years.” Nihalani’s history as a CBFC chairman and, indeed, as a “BJP man”, cannot be divorced from the treatment meted to En Dino Muzaffarnagar. In fact, not just filmmakers, but some CBFC members have also expressed concerns in the way Nihalani exercises his powers. In March 2015, a CBFC member said, “At times, Nihalani watches films even after the certification has already been done. He should come into the picture only in case of an emergency. He should have faith in us.” Which is exactly what happened to En Dino Muzaffarnagar, a film that was about to get an A certificate, until Nihalani, with a letter in tow from the Ministry of Home Affairs, intervened.
Chaudhary’s documentary has been denied a censor certificate, but more than the end result, she has a few questions about the process. A process whose mechanics she fails to understand. “My point is, if they got the letter in March 2015, and I approached them a few days later, in person, and wrote them e-mails, why did they not tell us that your film will not get a censor certificate?” she asks. “Why did they keep on delaying?”
There’s another question here that demands an answer: When one of the panels of the CBFC cleared the film for an A certificate, with three minor cuts, how did the film ultimately get denied a certificate? Chaudhary and advocate Govind Jee, assistant to Prashant Bhushan, who has attended the last few court hearings, believe that Nihalani is relying on Rule 32 of the Cinematograph Act, to deny the censor certificate to En Dino Muzaffarnagar.
(I tried getting in touch with Raju Vaidya through phone and e-mail but didn’t receive a reply. I also called Pahlaj Nihalani’s office multiple times, but I wasn’t able to talk to him.)
Nihalani, talking about his decision, told The Telegraph, a week-and-a-half ago, that he “only went by Rule 32 of the Cinematograph Act which says that if there is a complaint against a film, then the central government’s opinion should be sought”.
However, Rule 32’s application in this case doesn’t seem clear, for it concerns with “re-examination of certified films”, but En Dino Muzaffarnagar has not even been given a certificate. And should the chairman of the CBFC, which is under the aegis of the Ministry of Information and Broadcasting but should ideally function as an independent body, solely rely on the central government’s directives on a case this political and sensitive?
Rule 32 of the Cinematograph (Certification) Rules, 1983 “empowers the chairman [of the CBFC] to review the movie. The letter reasons that he’s received complaints from the ministry, from some persons and organisations, but, the fact is, you can’t review based on the inputs of the Ministry of Home Affairs and anonymous complaints,” says Jee. “In the fresh petition, which we’ll file either tomorrow or day after, we’ll tackle the issue of the 19 [1A] article”—of citizens’ right to freedom of speech and expression—“and the cases of [filmmakers] Anand Patwardhan, Ramesh Pimple, and the movie Tamas.”
Jee talks about Rule 32’s fifth provision, which says, “The Chairman shall forward his opinion together with the print of the film in relation to which a certificate was issued earlier to the Central Government who may after such enquiry as it deems fit, pass such orders thereon in exercise of the provisional powers under section 6.”
“Now, if the chairman receives some complaints from the ministry, he can only forward an opinion, he can’t pass an order,” says Jee. “So Nihalani is relying on Rule 32’s part two, and he’s passing an order under part five.”
Rule 32’s part two says that the “Central Government may, if it considers necessary to do so, direct the Chairman to re-examine any film (in respect of which a complaint has been received by it directly or through the Board) in such manner and with such assistance as may be specified in the direction.”
“But on technical grounds, the court asked us to challenge this order as well. We’ll file an amendment application challenging this order,” says Jee. “So we’ve decided to file a new petition, whose hearing is on May 30.”
The Meera Chaudhary versus the Central Board of Film Certification case has implications for the future of free speech in the country. It’s ironic that in a case, which exposes the sluggishness and obsequiousness of the CBFC, the most telling comment has come from people working in the CBFC itself, Vaidya’s assistants, who had told Chaudhary that “Madam, yahan toh aise hi hota hai (this is how it happens).”