Censorship in many ways is the ultimate culmination of paternalism. Dictation of what ideas a person may or may not imbibe by another person or entity strikes at the very root of one’s right to self-determination. And the funny thing is that it is mostly done for the ‘benefit’ of the person on whom the decision is imposed.
The Indian State loves to be paternalistic. It will govern every aspect of your life if given the chance. It will decide what you eat, what you drink, who you have sex with, and even how you should fly a kite. Increasingly it has also stepped into the business of dictating what ideas you may be exposed to. Whether it be movies, TV shows or the news media, the State will make sure that the infantile masses are kept safe from the evil that is independent thought.
The censorship of the kind mentioned above is generally on the basis of morality and obscenity. Sometimes the reason can be that of public order. However there is another reason for which an idea can be stopped from being disseminated. This reason saw its day in the sun when a gifted director by the name of Anurag Kashyap sought to recreate the events which took place around the 1993 Mumbai bomb blasts.
Black Friday: The Shocking Truth Behind The '93 Bombay Blasts
The movie was called Black Friday and was based on S Hussain Zaidi’s book Black Friday: The True Story of the Bombay Bomb Blasts. It had Kay Kay Menon playing the role of DCP Rakesh Maria in an acting masterclass for the ages. The casting director took full advantage of the fact that none of the cast had to be conventionally good-looking and stuffed the movie full of talent, as actors like Pavan Malhotra, Aditya Srivastava, Gajraj Rao and Nawazuddin Siddiqui played important roles.
Black Friday was set to be released in January 2005. At that time, the trial court hearing the bomb blast case had examined the evidence and heard the arguments. Its judgment was awaited. Also, after an application made by Mushtaq Moosa Tarani, one of the prime accused in the case along with 31 other undertrial prisoners, the phrase ‘true story’ had been removed from the promos.
However — as detailed by Anuj Bhuwania in his working paper “Black Friday: Mediation and the Impossibility of Justice” — just a day before the release, Tarani filed a case in the Bombay High Court to stop the release until the trial court delivered its verdict. His argument was that since the movie predominantly shows the case of the prosecution, it will interfere with his right to a fair trial. He also felt that he would be defamed by the movie in addition to it amounting to contempt of court.
Bombay High Court’s judgment
The high court agreed with Tarani as it held that the movie would have ‘a prejudicial effect on fair administration of justice’. It stopped the release, screening and exhibition of the movie until the trial court judgment was delivered. The filmmakers went to the Supreme Court which kept the matter pending. This meant that the high court’s order of stopping the release held sway and the movie’s release was delayed till after the trial court’s judgment was pronounced. The movie was finally released on 9 February 2007, more than two years after its scheduled release date.
The Supreme Court’s actions (or lack thereof) are an early example of an approach it would go on to follow in the Aadhaar case wherein it simply refuses to hear certain matters. Gautam Bhatia has written about this doctrine of “judicial evasion” with great élan here and here.
Coming back to the Black Friday case though, the high court delivered its ruling based mainly on two arguments, those of Tarani’s right to a fair trial and that of his right against being defamed. They are two different rights and therefore should be treated as such. A reading of the judgment however, reveals that the high court ends up merging them while making its final decision.
Court cases are usually about a clash of rights between the parties. In this case, the primary clash was between Tarani’s right to a fair trial and the filmmakers’ right to freedom of speech and expression. The filmmakers’ right is pretty well established and it was up to the court to determine whether Tarani’s right was being infringed. It determined that this was indeed the case as it said:
“Therefore, petitioner apprehends that people at large would definitely form an opinion about his guilt. The verdict having yet to be pronounced by the Designated Court, permission to exhibit the film at this stage would definitely affect the course of justice. It is irrelevant and immaterial whether the Judge is actually prejudiced or influenced by the film.”
Was the right to fair trial actually affected?
It is here that the court fails to give cogent reasoning for its conclusion that the movie would affect the right to fair trial of the accused. The movie will undoubtedly influence the viewers and indeed that is the purpose of cinema. Many viewers would have made assumptions about the accused in the case after watching the movie. But none of that will have an effect on the trial for the simple reason that this was not a jury trial.
In other legal systems where jury trials are allowed, the jury members are instructed not to read newspapers and or see other media reports on the trial. In India, that is not the case because there is no jury. Interestingly, contrary to popular belief, the Nanavati case was not single-handedly responsible for killing off the jury system in India. But it did show us how juries could be affected by news reports.
In the present Indian legal system, a judge decides the outcome of a case. These judges are well-versed in law and have a “judicially trained” mind. As such it has to be presumed that the judges will not be influenced by media reports on the trial.
Let’s take the case of the specific trial court judge in the bomb blast case. He would have heard the case from the side of both the prosecution and defence. He would have had the opportunity to question the lawyers and the witnesses. He would have examined all the evidence present in the case. He would have heard the testimony of the police officers investigating the case. Is it then the understanding of the high court that the judge would be swayed by watching a movie which by its own admission represents the case of the prosecution? Such an understanding seems far-fetched to say the least.
If the court did however feel that movie could influence the judge then the logical thing would have been to ban him from watching the movie.
As far as the defamation argument is concerned, the court should have waited till after the movie was released to act on it. The Supreme Court as recently as January 2017 has accepted that there are no prior restraints on the media. The high court then laid down bad precedent as it allowed a petitioner to object to a movie which hadn’t been released yet. Is it then open to citizens to object to a movie after they see its trailer and decide that it defames them? Will the courts entertain every such case and watch a special screening of the movie as the high court did in this case?
Contempt of court
The court also felt that this was a case of contempt of court. This was based on the fact that the book — on which the movie was based — had acknowledged the assistance and support of the trial court judge during the research stage. Notably, the filmmakers, while admitting that the movie is based on the book, do not show the judge or the court at all in the movie. It would thus be assumed that the contempt, if any, would have been committed by the book’s author. However, the high court chalks up the contempt to the movie and this forms part of its reason to delay the release.
The operative paragraph of the judgment holds as follows:
“We, therefore, hold that the Petitioner has made out a case for the injunction that he has sought on the ground that the release of the film would constitute contempt of court and his defamation.”
In any case, the contempt argument does not hold much water in light of the fact that the court only deferred the release till the trial court judgment was delivered. If there was contempt, then the movie should have been banned indefinitely. Further the court should also have considered action against the judge who supported the book as that was seen as a problem. There is no evidence of that being done and the judge went on to pronounce judgment on the case.
Free speech and precedents
The Black Friday case is an important case on free speech as it didn't censor the film in the sense of cutting out scenes but instead stopped the release in order to ensure the right to fair trial of the accused. It laid down precedent on the media’s freedom when a trial is in progress.
The ruling was also a judgment about postponement orders at a time when the concept did not exist. In the 2012 Sahara case, the Supreme Court laid down the constitutional principle of postponement of the media’s publication of court proceedings. The court did not specifically mention the Black Friday case but the general principle it laid down is quite similar as it puts the right to fair trial above the freedom of speech and expression.
There is also a need to separate defamation from the right to free trial. A suit for defamation must come only after something has been published. Otherwise the judiciary stands on a slippery slope and could eventually end up banning all coverage of judicial matters as it can be argued that they all ‘influence’ the readers in one way or another.
Finally, in today’s age of instant gratification, delaying the release of a publication or a movie can have a great impact on how it performs with the reader/viewers. News in particular is extremely topical. In such a scenario, the courts have to tread very carefully while passing such orders. While the right to fair trial is an extremely important one, the judiciary needs to have faith in its judges that they will not be influenced by media reports (or movies) on the cases they are hearing.
In short, the paternalism needs to stop. For both the masses and the judges.
Published Date: Jul 02, 2017 10:11 AM | Updated Date: Jul 02, 2017 10:11 AM