Thread by @barandbench

Delhi High Court is hearing the petition filed by accused Mohd Javed challenging the release of the movie Udaipur Files.

The matter is being heard by Chief Justice Devendra kumar Upadhyaya and Justice Tushar Rao Gedela

Senior Advocate Menaka Guruswamy for petitioner Javed- 160 witnesses remain to be examined. I am entitled to fair trial under Art 21. First proposition is my right to fair trial is jeopardised by the relase of this movie.

Guruswamy - The right to fair trial is an essential component of what it means to be an Indian in this country.

Guruswamy - There is a dialogue in the film that is lifted directly off the charge sheet.

Guruswamy - Central Govt has exercised in its revisional power that contravenes the statutory scheme prescribed under the Cinematograph Act.

Guruswamy - It is powers of revisional jurisdiction that is different from CBFC's power. This is my second proposition.

Guruswamy - Third proposition, they are guilty of contempt of court. What is at stake prejudice to the accused or prejudice against the accused, prejudice vis-a-vis the administration of justice.

Guruswamy - Administration of justice includes the accused right to fair trial, but it includes the right of witnesses and the court process not to be prejudiced in any fashion.

Court - We also have a right to see or not to see the movie, unless you persuade us otherwise.

Court - Right to fair trial is intrinsic it is not denied. You have to explain what the contempt of court means. You have borrowed from Art 19(2).

Senior Advocate Menaka Guruswamy is now taking the Court through Articles 19 on freedom of speech and expression and Art 21 (right to life and liberty) of the Constitution.

Guruswamy - Our free speech jurisprudence is specific to this country and is triggered when Art 19 is invoked.

Guruswamy -This movie is crime specific, referring to a Kerala HC judgment. The threshold for prejudice is always the prudent person or person with ordinary prudence.

Guruswamy - I am a young man living with my family out on bail. When you make a movie based exclusively on crime and chargesheet and dialogue is lifted from the chargesheet, is it expecting too much from all the actors?

Guruswamy - Are we expecting every citizen, every judge, every court master, every witness, to be unreasonably prudent? That is my question, and my submission is yes, we are expecting too much, and that is not what the law expects from any of us.

Guruswamy - Kerala High Court says it may be fiction, but even if fiction is based on a crime, then we must withhold. In this even the filmmakers are saying it is a true story.

Guruswamy - They are not speaking to fiction. They are saying to Your Lordships, to this country, to the 160 witnesses who remain to be examined, to the court staff, to lawyers, to my neighbours, that the portrayal of the accused that I have committed this crime and I am guilty of it.

Now she is citing a Bombay HC case on the release of the movie 'Black Friday'

Chief Justice - The matter had gone to the Supreme Court. It did not interfere, but has kept the points of law open.

Guruswamy told the Court that 6 witnesses in the case have been examined and 160 witnesses remain to be examined.

Guruswamy is now taking the Court through a Madras HC case where Court had watched the movie based on a pending criminal case.

The movie was based on Rajiv Gandhi's assassination.

After seeing the movie, there is a detailed discussion on the film and dialogues were considered by the Court. How can we say that filmmakers were telling the truth. Accused may have a different truth. The effect of the movie on an average viewer was considered by the Madras HC.

Senior Advocate Menaka Guruswamy is now referring to the case on hate speech, Amish Devgan.

The Court is considering the relevant provisions of the Cinematograph Act with respect to Guruswamy's second proposition on the revisional jurisdiction of the Central Government under Section 6.

Court - You cannot segregate subsection 2 from subsection 1. Read subsection 1 first.
Guruswamy - subsection 1 it has been repealed in 2023.

Guruswamy - The Central Govt cannot suggest cuts, modify dialogue, disclaimer, basically become film board like in this case.

Guruswamy - The central government does not have the statutory power to become a master director of this film by saying, remove certain dialog, remove certain disclaimers, use these words in the disclaimer., change the content of this, I'm going to make a few cuts and you release the film.

Guruswamy - Where is this power intended by the legislature?

Guruswamy - There are grave consequences to fair trial for the accused, for the administration of justice, for the court system. But most importantly, at the heart of it is not just the rights of an accused, a young man, at the heart of it is how we hold ourselves up as a constitutional democracy, as a court system.

The Chief Justice refers to a 2021 judgment delivered by Retd Justice DY Chandrachud.
Court - This judgment that once any film goes through the process of film certification, there is a legal presumption in fear of the film being fit for public exhibition. So the scope of interference is very limited. What are the tests available to us to interfere?

Guruswamy - This is a case in which the state banned a movie. It pertained very specifically to the rights of the filmmaker and there is no portrayal of an accused or a trial in this case at all. So when it comes to the principle of fair trial when there is an active criminal case underway, your Lordships have never not intervened in such a case.

Chief Justice to ASG Chetan Sharma - Basically your action is under challenge. The CBFC and the Govt.

ASG Chetan Sharma - CBFC suggested 55 cuts. Those cuts were on purported generic overtones. anything in realm of purported generic overtones has been excised. We are covered by Adarsh case. He states that the stellar case of Mohd Musa of Bom HC cited by petitioner can be differentiated.

ASG Sharma - In Mohd Musa, the movie was based on a book, there was support of the judge incharge of the case. He was awaiting judgment here accused is out. He was named and shown with the face. Here he has not been shown as Javed. He has little connectivity with the narrative.

ASG Sharma - Javed is not shown in this light. In case there is a slight deviation on facts, the principle of stare decisis is not to be attracted immediately. The principle of stare decisis binds when there is a complete all four corners of fact and law.

ASG Sharma - Subjective satisfactions of people don't guide courts. These are your subjective satisfactions, you may be pandering to something we can't say. The legal presumption exists once a certificate is granted by a state.

ASG Sharma - The three members from the advisory panel are not in any manner associated with the movie in the earlier round of certification, but are senior govt officials.

ASG Sharma - The Committee has suggested further 6 cuts and further asked for embellishment and fortification of the disclaimer.

ASG Sharma - The test laid down is man of common sense and of ordinary prudence. Now, ordinary prudence can't be transmuted in the negative. I am at a loss to understand what is unreasonably prudent. Counsel's entire argument is on this.

ASG Sharma - Once a quasi judicial body like the appellate tribunal consisting of a retired judge of the High Court or a person qualified to be a judge of the High Court and other experts in the field gives its decision, that decision would be final.

ASG Sharma - We do not see how any body, group, association or individual can create any kind of disturbance in the exhibition of the film.

ASG Sharma - Once the film is granted certificate by the competent statutory board, unless the certificate is nullified or modified by any superior authority, the producer or distributor of the film has every right to get it exhibited in a movie.

ASG Sharma - If such activities are encouraged, the same as the potentiality to bring in anarchy and cripple the right of freedom of speech and expression.

ASG Sharma - Constitution does not extend only to fictional depictions or artistic themes. Artists, filmmakers and playwrights are affirmatively entitled to allude to incidents which have taken place and to present a version of those incidents which, according to them represent a balanced portrayal of social reality.

ASG Sharma - Anyting picked out from a large movie . How does it transcend to the nation? it is a subjective view. You cannot implant that on Art 19. The fetter would not apply in a criminal case.

Court - You still have not replied that central government while exercising the revisional powers has acted as an appellate board.

Court - The Order passed, the manner in which this exercise has been conducted, the Central Government does not conform to subsection 6.

Court - You told 6 more cuts, etc. Is this authority available under subsection 2 of section 6? Earlier Court observed that Centre has revisional power suo moto, not now. It can now pass only 3 orders that are enumerated in subsection 2 of section 6.

Court - This is very important. The nature of order that can be passed by you has been enumerated. The order you have pased falls in which sub clause? This power of making changes as it deems fit is not there.

The Chief Justice reads out the subsection and asks ASG as to under which provision Centre passed the order. Now the powers are restricted.

ASG takes the Court through the petition. He says that the order was passed in compliance of the previous judgment of this Court.
There was no such order, Chief Justice said.

Court - It is a statutory remedy they were relegated, not their representation. You have to exercise the powers within the 4 corners of the law. You canot go beyond that. You are not exercising your general administrative powers.

The Court will continue hearing the arguments in this case on Friday.