Can't Decide Whether A Film's Material Denigrates A Community Or Not Without A Challenge To Censor Certificate: Bombay High Court

"The rule of exhaustion of an efficacious alternative remedy applies also in a public interest litigation as it does in respect of a litigation initiated in private interest," a division bench of Chief Justice Dipankar Datta and Justice MS Karnik observed dismissing two PILs and disposing of a petition.

The PIL filed by MLA Amin Patel and a petition by a resident of Kamathipura said the movie casts a stigma on the entire area while also giving a bad name to the Gujarat based Kathiawadi community as a whole.

Despite the court's reservations about certain aspects of the Alia Bhatt starrer, the bench observed that it would be "impermissible" for it to interfere as the petitioners had failed to challenge the CBFC certificate given to the film in December 2021.

"Even though the Court may form a view one way or the other with regard to depiction of any particular area in a particular way, or if any material is present or shown in a film which seeks to denigrate a particular community, it would be impermissible for the Court to interfere in the absence of any challenge to the certification of the film for public exhibition granted by the Board.

The bench further stated that once the producers had complied with modifications or deletions directed by the board, "there cannot be any kind of obstruction for exhibition of a film which is certified, there can be no prohibition for the film to be exhibited unless, of course, the certificate issued by the Board is challenged and the Court stays its operation."

Maintainability

The bench relied on arguments put forth by the respondent regarding an alternative efficacious remedy before the censor board. Senior Advocate Ravi Kadam had argued that according to Rule 32 of the Cinematograph (Certification) Rules, 1983 framed by the Central Government even after a film has been certified for public exhibition, a complaint could be lodged with the Board and upon such a complaint being lodged, the Board is duty bound to forward such complaint to the Central Government.

"Any move of any body, group, association or individual to assume the position of the certificate granting authority has to be discouraged and nipped in the bud.. We, therefore, are of the clear opinion that the objections to the maintainability of the petitions are well founded," the bench held.

Advisable if the film title was sans Kathiawadi, Disclaimer Longer

According to the book 'Mafia Queens of Mumbai,' on which the film is based, Gangubai had discarded using the surname Kathiawadi and used Kathewali instead. The Chief observed that if it was so, it may have been advisable if the title of the film was sans Kathiawadi, however, such orders could not be passed in the absence of a challenge to the certificate granted by the Board.

The bench refused to direct producers to increase the length of the disclaimer in the film on the grounds that it was the domain of the censor board.

We took not less than 20 seconds to read the disclaimer in print. It would have been advisable for the Board to direct the disclaimer to be projected on screen for a longer duration but, once again, no direction in this behalf can be given by this Court.

The bench observed that according to the Supreme Court's decision in Adarsh Cooperative Housing Society Limited vs. Union of India & Ors, the Court should not add any disclaimer, since its addition is altogether within the domain of the authority.

Lastly, the court held that there was no "iota of material" that the Board granted the certificate on December 30, 2021 without adhering to the Rules/Guidelines. Neither did the petitioners plead that any provisions of the Act, the Rules and/or the Guidelines have been breached.

"The petitioners in PIL(L) No. 5227 of 2022 and WP (L) No. 5235 of 2022 have also not alleged any violation of their rights, either Fundamental, other Constitutional or statutory right. This being the position of the pleadings, grant of relief is a far cry."

Case Title: Hiten Dhirajlal Mehta vs Bhansali Productions

Citation: 2022 LiveLaw (Bom) 50