Documentary and Censorship Laws in India: Case Study of 'Had-Anhad' (Bounded-Boundless)

in Article
Published on: 20 July 2017

Rajat Kumar

Rajat Kumar is an advocate practising in Delhi.

Documentary films are often a subject of controversy in India. The grant of a certificate from the Censor Board is not a guarantee that the film can be exhibited without fear of violence or intimidation. The challenges faced by any filmmaker in terms of the arbitrary decisions of the censor authorities are not just about what the law does or does not allow but also have to do with their stories of personal struggle, which are more often than not influenced by extraneous factors such as time constraints and limited financial resources. This article is a case study of one such documentary which the censor board had refused to grant a certificate, mainly on the grounds that it promoted anti-communal feelings and an anti-national attitude.


Had Anhad (‘Bounded-Boundless’) is a documentary which captures the essence of these debates. Here, the director Shabnam Virmani explores Kabir’s poetry, focussing on his frequent invocation of the widely revered Hindu God, Ram. In its attempt to understand the Ram in Kabir’s poetry, the film journeys through his songs and poems into the politics of religion and seeks answers on both sides of the hostile border between India and Pakistan.


On November 5, 2009, the Central Board of Film Certification, Bangalore (CBFC), in response to the petitioner Shabnam Virmani’s application for a censor certificate for her documentary, wrote back with its decision stating that the certificate for unrestricted public exhibition would be granted subject to four excisions in the film. It is important to know not only the principles based on which these excisions were suggested by the CBFC, but also the context in which these ‘offending’ portions appear in the film.


 The documentary Had Anhad starts with an opening plate with the following text:[1]


For centuries, fundamentalist forces amongst Muslims and Hindus have stoked divisive religious politics between the two communities in the Indian subcontinent.

Ram is one of the most popular deities in Hindu religious traditions. He was the legendary king of Ayodhya in ancient India; hero of the epic Ramayana. In recent Indian politics, Ram has been invoked by certain groups to consolidate Hindu identity and votes in divisive opposition to Muslims living in India and the neighbouring Islamic state of Pakistan.

It is in this backdrop that this film unfolds, in search of the ‘Ram’ invoked in the poetry of Kabir, a popular mystic poet of 15th century north India. (italics added)


Followed by the opening plates, the filmmaker’s narration appears on screen as text:


In 2003, I set out in search of Kabir.

Why Kabir? What made me want to search for a 15th century mystic poet today?

Maybe turning to Kabir was a turning away from Ram…..that militant Ram used to stoke Hindu-Muslim hatred in India today.

But then, I found a Ram in Kabir too.

And their stories began to unfold through the fog of history and politics, intertwined.


The first two excisions which were suggested by the CBFC were the deletion from the title card of the words, ‘Muslims living in India…Islamic state of Pakistan’ and ‘militant Ram’. As per the CBFC, these were contemptuous of religious groups[2]; they promoted communal, obscurantist, anti-scientific and anti-national attitudes and furthermore that they would strain ‘friendly’ relations with foreign States, which in this case was, ironically enough, Pakistan.


Soon after the title cards, the first visual that appears on the screen is of Ayodhya, Uttar Pradesh. The documentary shows stalls selling audio CDs with songs proclaiming Ayodhya as the land of Ram’s birth and video CDs showing the Babri Masjid demolition. The filmmaker strikes up a conversation with one of the vendors and asks them if people buy these CDs, to which the vendor replies in the affirmative. When the filmmaker asks him why, the vendor says that the Muslim-Hindu dispute is a longstanding one and has existed since the reign of the Mughal emperor Babar (1526–30 CE).


He further says that people like to watch the CD as a celebration of the time when Hindus got together and razed the mosque. When the filmmaker asks if they watch it again and again, the CD vendor says, ‘Yes, if we free our ancestor’s birthplace … from occupation by others … won’t our children enjoy seeing it? How they laid siege to it, destroyed it, freed the land …’ Thereafter, there is a discussion between the CD vendors and the filmmaker on the issue of the Babri Masjid demolition. This sequence is obviously in today’s political context where the filmmaker explores a version of ‘Ram’ in the post–Babri Masjid demolition period.


The third excision suggested by the Censor Board was the deletion of the visuals of the Babri Masjid demolition as well as the entire conversation between the filmmaker and the vendors mentioned above. In addition to the reasoning that these audio-visuals promote communal or anti-national attitudes, CBFC added a new reason that the Babri Masjid sequence in the film could endanger public order and the security of the State. 


In the entire film there are several songs based on Kabir’s poetry performed by different artists. The fourth and final excision asked for in the movie was of a sequence following a scene filmed at the Wagah border, which appears after a song, whose English translation is reproduced here: 


Kabir seems to push me

to question the borders

of my identity –

where I draw the line,

where I build my walls.

I’m drawn then to

another kind of border,

another kind of line

that defines and separates.


In the film, there are visuals of several people present on both the sides of the India-Pakistan border at Wagah. At dawn, when the gates are being closed there is a huge uproar and loud sloganeering from both sides. The filmmaker strikes up a conversation with her co-passengers on the bus back from the Wagah border. All her co-passengers express their views on how loud the hooting and sloganeering was at the Pakistani side of the border and how angry they felt because of it. One of the co-passengers in the bus says, ‘Muslim log sub kuch ullta karte hain’ (‘Muslims do everything the opposite way’). The sequence ends with the filmmaker’s narration in the form of a text asking, ‘I wonder what Kabir would have said if he were riding this bus with us?’


The CBFC wanted deletion of the word ‘Muslim’ uttered by the commuter returning from the Wagah border in the van, when he is recorded saying ‘Muslim log sub kuch ullta karte hain’. As per the CBFC, the word ‘Muslim’ would be contemptuous of a religious group.


The order of the CBFC contained an anomaly. It had stated that the decision to make these excisions was taken after considering the submissions made by the applicant (in this case, the producers of the film, Srishti School of Art, Design and Technology, Bangalore) or their representatives during the ‘oral hearing’, for which opportunity was afforded to the applicant. This was factually incorrect and, in fact, no such opportunity was afforded to the applicant, as this order was the first communication to the applicant from the CBFC. The producers of the film wrote back to the CBFC and informed them about this anomaly and sought review of the order. The CBFC conceded that the statement was an inadvertent one. However, it suggested to the producers that in case they were aggrieved with the order, they could file an appeal before the Film Certificate Appellate Tribunal (FCAT), New Delhi, under section 5C of the Cinematograph Act, 1952.       



First Appeal


In March, 2010, an appeal was filed against the abovementioned CBFC order before the FCAT. A screening of the film was organised before the four-member panel of judges who were to hear the argument. Thereafter, on two separate occasions oral arguments were made. It was argued before the tribunal that any restriction imposed on speech and expression under Article 19(1) has to be restricted within the scope of Article 19(2) of the Constitution and nothing else. Article 19(2) states that the State can restrict exercise of right to speech and freedom of expression, if such restriction is reasonable and, (i) in the interest of the sovereignty and integrity of India, (ii) security of the State, (iii) friendly relations with foreign states, (iv) public order, (v) decency or (vi) morality, or (vii) in relation to contempt of court, (viii) defamation, or (ix) incitement to an offence.


Referring to certain Supreme Court judgments, the tribunal was reminded that while considering the validity of the excisions suggested by the CBFC, the tribunal should not be guided by the prospect of the impact of the film upon members of the public who were either prone to hypersensitivity or to being swept away by mob mentality, but to consider the reaction of the film upon a reasonable, strong-minded, firm and courageous person. Referring to the Supreme Court judgment in the Bandit Queen case[3] of 1996 and the Bombay High Court judgment on Anand Patwardhan’s film, In the Memories of Friends,[4] it was argued that the film has to be seen in its entirety and a film that illustrates the consequences of a social evil must also show that social evil.


With regard to the first two excisions, it was argued that the context in which they appear in the film could not be construed as promoting communal attitudes or being contemptuous of religious groups, since it is a critique only of the fundamentalists’ abuse of the figure of Lord Ram. The phrase ‘militant Ram’ appears in the film when the filmmaker questions herself as to why she is going out in search of Kabir, and states that she might have turned to Kabir in order to turn away from ‘that militant Ram used to stoke Hindu-Muslim hatred in India today.’ Here she is clearly expressing her dissatisfaction with the fact that the figure of Lord Ram has been invoked by certain groups only to their political advantage. It was further argued that no reasonable person watching the film could be in any doubt that the filmmaker is condemning such attempts to abuse and pervert the figure of Ram only to stoke Hindu-Muslim hatred and garner narrow political advantage. The phrase ‘militant Ram’ clearly shows that the film sets itself the task of demonstrating the fraud sought to be perpetuated by using the image of Lord Ram in a ‘militant manner’ to divide Hindus and Muslims and the film does so by teasing out the figure of Ram invoked in the poetry of Kabir.


The CBFC had also asked for deletion of the terms ‘Muslims living in India’ and ‘Islamic State of Pakistan’, on the grounds that it ‘may strain friendly relation with foreign states’. There was no explanation given by the CBFC on how the terms may strain these ‘friendly relations’. However, it was clear that the CBFC was concerned by the term ‘Islamic State of Pakistan’. It was clarified to the FCAT that in the Constitution of the Islamic Republic of Pakistan, which came into effect in 1973 and remains in force, Pakistan is referred to as ‘the Islamic Republic of Pakistan’. It was argued that no strain whatsoever would be caused in relations with Pakistan by the film’s use of the term ‘Islamic State of Pakistan’. 


As far as the third and fourth excisions are concerned, it was argued that the visuals of the Babri Masjid demolition are readily available on the Internet for download as well as for purchase in several shops. Neither the Government of India nor any other authority has chosen to prohibit the screening and sale of such visuals. Insofar as the last excision of the word ‘Muslim’ from ‘Muslim log sab kuch ulta karte hain’ was concerned, it was argued that by showing these visuals the filmmaker was showing the communal prejudice that lives amongst us. It is also clear from the message of the entire film that it does not subscribe to the opinions expressed by the commuter in the bus who uttered those lines.  


It was argued that it is crucial and important that all persons, especially artists and creative persons, find ways of engaging both the Hindu and Muslim communities in questioning their hardening positions vis-à-vis each other. As far as visuals of the shopkeepers and their justifications, or those of the said commuter are concerned, it was submitted that it was relevant to show how hardened the positions of ordinary people have become. The rest of the film is an attempt to show another path which can only lead in the direction of greater understanding between the two communities by suggesting that Hindu and Muslim traditions have co-existed in close proximity and many syncretic traditions have evolved out of the interaction of both traditions.


On February 28, 2010, the FCAT rejected the appeal and unanimously upheld three excisions out of the four suggested by the CBFC. Although the FCAT agreed with the reasoning of upholding the CBFC’s decision, there was a 3:1 split in the verdict so far as the final consequence of such excisions was concerned. The majority of the tribunal agreed that subject to three excisions the Board may grant ‘U/V’ (Unrestricted Viewing) certificate to the film. The dissenting one member opined that:


I respectfully dissent and grant ‘S’ [Restricted to Special Class of People (e.g., Doctors, Sociologists etc)] certificate subject to the cuts and modification indicated in the order. In the entire film there is communal discussion of a sensitive nature. The film is not a work of fiction and contains contemptuous words and promotes an anti-national attitude. The film would help persons in research, seminars, workshops, sociologists, historians and libraries. The film violates guidelines 2 (xii) and (xiii) under the Act.


The tribunal had set aside the requirement that the appellant delete the words, ‘Muslims living in India’ and ‘Islamic state of Pakistan’ but upheld all the other excisions decided by the CBFC. The reason why the tribunal had largely upheld the decision of the CBFC remained unclear. The tribunal stated that under Article 19(2) the scope of restriction is wide and is included in the Constitution to protect the people, community and children. The tribunal in support of its reasoning cited a Supreme Court judgment, Laxmi Kant Pandey vs Union of India, (1984) 2 SCC 244, a case where the issue was about restraining Indian-based private agencies from carrying out further activity of routing children for adoption abroad and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents. The portion of the judgment from which the tribunal quoted had nothing to do with Article 19(1) or (2). In fact, the cited portion referred to Article 15(3) which enables the state to make special provisions for children and Article 24 which provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. The reasons for this citation, till date, remain a mystery.


The second case which was cited by the tribunal in support of their decision was, Directorate of Film Television vs Gaurav Ashwin Jain (2007) 4 SCC 737. In this case some documentary filmmakers had challenged the eligibility requirement prescribed by the Directorate of Film Festival for entering in the non-feature award category in the 53rd National Film Awards. It was once again unclear why this case was relevant in the context of the excisions suggested by the CBFC. The tribunal stated that as per this judgment, the right of a filmmaker to make and exhibit his/her film, is a part of the fundamental right of freedom of speech and expression under Article 19(1)(a) and that film is a medium to communicate ideas, thoughts, messages, information, feelings and emotions. Further, that the legality of the policy, and not the wisdom or soundness of the policy, is the subject matter of judicial review.


It is unclear which legal policy was the subject matter of the appeal against the CBFC order for excisions in the film. The tribunal further stated that the CBFC might grant a certificate indicating that a film is suitable for public exhibition under the categories ‘unrestricted’ or ‘restricted to adults’ or ‘restricted to members of any profession or class of persons’. It was nobody’s case that the CBFC does not have power to grant such certificates. Once again it was unclear what the tribunal wanted to convey from the above citation. The case had no relevance, either in law or facts, in the context of the case of Had Anhad.


The third judgment cited by the tribunal in its decision, too, had no relevance to the case before the tribunal. The tribunal cited Baragur Ramachandrappa vs State of Karnataka, (2007) 5 SCC 11 (16), which was an appeal to the Supreme Court against the judgment of the Karnataka High Court dealing with the setting aside of the notification issued by the state government to forfeit all copies of the novel Dharmakaarana under Section 95 of the Code of the Criminal Procedure (CrPC). Section 95 empowers the state government to forfeit copies and issue a search warrant, when a newspaper or a book appears to contain material that is either seditious, obscene, promotes enmity between religious groups, or is prejudicial to communal harmony and national integration. The tribunal quoted the portion of the judgment stating that the State of India is a secular one and does not take sides with one religion or other in our pluralistic society and that good governance necessitates peace and security and whoever violates by bombs or books societal tranquillity will become the target of legal interdict by the State. The tribunal, thereafter, mentions Section 153-A and 153-B of the Indian Penal Code, which provides punishment with imprisonment and fine on any person who promotes through words or action communal disharmony or feeling of ill-will between different religions or castes or communities. The tribunal gives no reason as to how these provisions under criminal law are applicable in the case of the documentary censorship certificate, when the censorship domain is controlled by the Cinematograph Act, 1952.


Insofar as excisions are concerned, as mentioned earlier, the tribunal agreed that the official nomenclature of Pakistan is indeed, ‘Islamic Republic of Pakistan’, as per their Constitution. However, the tribunal did not accept the appellant’s arguments in connection with other excisions.


As for the ‘Babri Masjid’ sequence and removal of the words ‘Muslim log ...’, the tribunal without attributing any reason as to how these statements were violative of the guidelines, simply held that these portions promote communal and anti-national attitudes and are contemptuous of the Muslim community. However, the second excision did see some ‘interesting’ engagement from the tribunal.



The second excision: Removal of the phrase ‘militant Ram’


The appellants had argued that the words ‘militant Ram’ appear in a context and are in no way derogatory or suggesting that Ram was militant. The filmmaker had criticized the use of the name of Ram by fundamentalist forces in our society to stoke ill-will between the Hindu and Muslim communities. However, the tribunal had some other reasons to remove the words ‘militant Ram’ from the film. Para 17 of the decision of the FCAT stated:


It is common knowledge that the Christian, Islam and Hindu religions are very old. The question of a ‘militant Ram’ stoking ill-will between Hindus and Muslim does not arise. Therefore, wherever including in the title card there is reference to ‘militant Ram’ and such similar ideas/words, the words have to be deleted. It is also recommended by CBFC. Guideline 2 (xii) is not applicable because it is factually incorrect. During Shri Ram’s times there was no Islam and Shri Ram was a man of peace and was forced to battle with Ravana to save his wife. Lord Rama was not a man of war and returned to Ayodhya as soon as his wife was freed. Serial No. 2 stands decided. (Emphasis mine)


The tribunal came to the conclusion that the words, ‘militant Ram’ should be censored from the film because they were ‘factually incorrect’. As per the FCAT, Shri Ram could not have stoked ill-will between Hindus and Muslims because at the time of Shri Ram there was no Islam. Further, that he could not have stoked ill-will between religions because he was a man of peace and not war. He fought with Ravana only to get his wife back. Needless to say, there was no source attributed to the above statements and it is evident that there was a complete lack of engagement with the arguments advanced by the appellant and the issue at hand.



Writ Petition at the High Court of Delhi


Aggrieved by the order of the FCAT, the appellants filed a writ petition under Article 226 of the Constitution of India. Under the writ petition, the appellant sought to set aside the order of the CBFC and the FCAT. After a screening of the movie and lengthy arguments addressed by both the CBFC and the Appellant, the Hon’ble High Court of Delhi, on March 9, 2011, delivered its judgment by allowing the writ petition and setting aside the orders of the CBFC and the FCAT.


The High Court of Delhi granted U/V certificate to the film without any excision. The excisions suggested by the CBFC and the FCAT were rejected on the following grounds.


1.     Excision of words ‘militant Ram’: The court relied in the matter of Gopal Vinyak Godse vs Union of India AIR 1971 Bom 56, and held that the work has to been seen as a whole and the offending parts should be read in context and its impact should be judged from a reasonable man’s point of view. In this connection the Delhi High Court stated that once the FCAT came to the conclusion that Guideline 2 (xii) was not applicable in the excision then the CBFC’s decision could not have been sustained. Secondly, the FCAT had overlooked the tenability of the understanding of the filmmaker as regards to the projection by certain others of Ram to justify acts of violence. The main issue is whether the filmmaker can put forward her point of view or not, irrespective of its acceptability with the viewer, or the CBFC or the FCAT. Thirdly, the court pointed out that the excision as suggested by the CBFC and the FCAT makes little sense.


The Court stated that if from the sentence: ‘Maybe turning to Kabir was a turning away from Ram…that militant Ram used to stoke Hindu-Muslim hatred in India today’ the phrase ‘militant Ram’ is replaced by ‘Ram’, the sentence would read: ‘Maybe turning to Kabir was a turning away from Ram… that Ram used to stoke Hindu-Muslim hatred in India today’. The court observed that removal of the word ‘militant’ completely mutilates the meaning of the sentence and, perhaps, may sound more objectionable.


Lastly, the court observed that in the entire context of the film, it cannot be said that the filmmaker subscribed to the view that ‘Ram’ was militant. It was her comment on how Ram is used by certain others to stoke ill-will against two communities, which becomes clear from the fact that immediately after the phrase in question she says, ‘But then I found a Ram in Kabir too’.


2. Excision of ‘Babri Masjid sequence’: The court once again observed that in the said sequence, the conversation between the filmmaker and the CD vendors has to be looked at in the context of the entire film. The burden of proof to show that the exhibition of such films would be danger to the security of the state and public order would be on the state. The court observed that both in the CBFC order or the FCAT order, no reason is assigned as to how the film as a whole ‘jeopardizes’ the security of the state or ‘endangers’ public order. The court held that mere apprehension of danger would not be sufficient to restrict speech.


The court observed that the subject matter of the excision is in, ‘one sense a recalling of the memory of an historical event. The recall may be imperfect. It may contradict the collective memory of that historical event. It may revive tensions over the events being recalled. Yet, that by itself does not invite censorial intervention to obliterate the scenes of recall’.[5] The High court referred cases of films like Chand Bhujh Gaya[6], Aakrosh[7], Kutra Pathirikai[8] and Ore Oru Gramathile[9] and elucidated that ‘no democracy can countenance a lid of suppression on events in society.’[10] The High Court came to the conclusion that filmmakers and artists are entitled to mention any incidents which have taken place to present a version of those incidents which according to them present a balanced portrayal of social reality. Insofar as danger to public order is concerned, the High Court stated that no reasonable person watching Had Anhad would be provoked into harbouring communal or anti-national attitudes. The court also noted that, in fact, the documentary condemns such communalism and makes a strong statement against the futility of religious violence.


3. With regard to the last excision, i.e., the removal of the words ‘Muslim log sab ulta karte hain’, the court held that in being seen as contemptuous towards the Muslim community the sequence has been taken out of context. It was observed by the court that the film depicts the prejudiced bigoted views harboured by some against a religious community, but the film does not subscribe to those views. It provokes the viewer into thinking and reacting differently. The filmmaker wonders how Kabir would have reacted if he was riding in the same bus.


The High Court of Delhi reprimanded the CBFC and the FCAT for not taking into consideration any of the precedents set by the courts in India. It was stated:


Considering that there have been numerous instances in the past where similar excisions directed by the CBFC have been disapproved by the courts, it is surprising that the CBFC and the FCAT have persisted with the view that the above words spoken by one of the passengers in the bus returning from Wagah should be excised. One of the four Members of the FCAT went to the other extreme by giving a dissent note that the film should be granted an ‘S’ certificate subject to the excisions recommended in the order of the FCAT since, in his view, the film ‘contains contemptuous words and promotes anti-national attitude.’ This approach is unsupportable by the legal precedents which require recounting only for that purpose.


The High Court further referred to three different judgments pertaining to Anand Patwardhan’s documentaries, i.e., In Memory of Friends[11], Ram ke Naam[12], and War and Peace[13]. In all these cases the state had objections to the content of the films showing communal statements. The court reiterated that the film has to be seen in the entire context viewed from ‘the healthy and commonsense point of view, it is more likely that it will prevent incitement to such offences in future by extremists and fundamentalists.' The court emphasized the importance of the exchange of ideas in a free democratic society and said:


…by suppressing a certain viewpoint, it is not only the propagator of the viewpoint who suffers but it is the society at large and equally the people in authority who suffer. This is because they fail to receive the counterview and it may eventually lead to an immense damage to the society due to an erroneous decision at the hands of the persons in authority in the absence of the counterview. That apart, the freedom and expression is important not merely for the consequences that ensue in the absence thereof but since the very negation it runs as an anti-thesis to basic human values, instincts and creativity.


In view of the abovementioned reasoning the High Court of Delhi had set aside the orders of the CBFC and the FCAT subject to the cost of Rs. 10,000 to be paid by the Respondent, Union of India, to the Petitioner. However, soon thereafter the Union of India filed an intra-court appeal against the judgment but at the admission stage hearing, the standing counsel of the Government confined the prayer to the Rs. 10,000 cost. In order to avoid further delay, the filmmaker raised no objection if the cost imposed by the judge was waived. On May 9, 2011, the division bench of the High Court of Delhi disposed of the appeal and waived the cost imposed on the Government with the consent of the filmmaker.





Had Anhad, perhaps, was not a ‘difficult case’ in a sense that it did not require any challenge to the existing framework of freedom of speech and expression under the Constitution. What led to the litigation was the failure of the CBFC and subsequently the FCAT to apply principles which were already laid down in plethora of judgments of courts on the subject. Although the judgment went in the favour of the filmmaker, one cannot ignore the long-drawn legal battle which the filmmaker had to go through. There are several cases where a filmmaker has accepted arbitrary deletions suggested by the censor board because extraneous factors like time and financial constraints overweigh the uncertainty of the court litigation. It is at such times when freedom of expression is under direct attack that the process of accessing the remedy itself makes the relief meaningless.       



[1] These extracts are reproduced directly from the script of the documentary which was filed before the court.


[2] This is with reference to Guideline 2(xiii), ‘visual or words contemptuous of racial, religious or other groups are not presented’.


[3] Bobby Art International vs Om Pal Singh Hoon 1996 (4) SCC 1.


[4] Anand Patwardhan vs Union of India.


[5] Para 28 of the judgment.


[6] F.A. Picture International vs CBFC, AIR 2005, Bom 145.


[7] Ramesh Pimple vs CBFC 2004 (5), Bom CR 214.


[8] CBFC vs Yadavalaya Films 2007 (1) CTC 1.


[9] S. Rangarajan vs P. Jagjivan Ram 1989 SCR (2) 204: the Supreme Court had held that the freedom of expression can only be restricted on the grounds of public interest if the anticipated danger is imminent like the equivalent of a ‘spark in a powder keg’.


[10] Ibid. footnote 6.


[11] AIR 1997, Bom 25.


[12] 1997 (3), Bom CR 438.


[13] 2003 (5), Bom CR 58.