Slurs out, “Hamare Baraah” allowed release after Rs 5 lakh fine paid for objectionable trailer Controversial film reaches screens June 21 after courts suspend release; slur-free version emerges following fine
20, Jun 2024 | CJP Team
On June 19, the Bombay High Court paved way for the controversial film ‘Hamare Baarah’ to be released in theatre on June 21, albeit after ensuring that the film makers delete certain objectionable portions. The movie, which was earlier set to release on June 7, and then on later June 14, has been in the news over allegations of it portraying the Muslim community as violent, distorting the teachings of the Quran and showing visuals of violence against women. The slur-filled trailer had been widely shown without cuts, attracting the fine imposed of Rs 5 lakhs.
The aforementioned order was passed by the court in a writ petition that had been moved to the Bombay High Court by Azhar Basha Tamboli. The petitioner had argued that the film is in complete contravention of the provisions of the Cinematograph Act, 1952, and the rules and guidelines associated with it. The petitioner had further claimed that the film is wrongly certified and its release would violate Article 19(2) and Article 25 of the Constitution. Article 19(2) imposes reasonable restrictions on free speech. Based on these grounds, the petitioner had sought a ban on the film on the ground that it is stigmatising of Islam and Muslims. Additionally, the petitioner had also strongly argued that the film deliberately showcased distorted Quranic verses to propagate a mistaken narrative that not just blames Muslims for population growth but portrays Islam as propagating the same.
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While hearing the arguments on the merits of the case, the High Court bench observed on June 18 that the movie does not target the Muslim community but rather spreads the message that one should apply mind while following the interpretations of Quran. The report of LiveLaw stated that “The movie is in fact for the upliftment of women. The movie has a Maulana misinterpreting the Quran and in fact one Muslim man objects to the same in the scene. So, this shows that people should apply their mind and not blindly follow such Maulanas.“
However, while allowing for the release of the movie, the bench had also directed that the filmmakers will be required to pay a sum of ₹5 lakh to the charity of the petitioner’s choice, for releasing the trailer with uncertified scenes that were deemed problematic. The said direction was given by the Bench after observing that imposing a fine on the filmmakers would be appropriate.
From restricting the release to allowing it: how did the courts deal with this issue?
June 5: Bombay High Court restrains the release of the film (interim order)
On June 5, an order was passed by the Bombay High Court through which they restrained the release of film “Hamare Baarah” on any public platform until June 14, 2024. The said order was issued by a division bench of Justices NR Borkar and Kamal Khata (vacation bench) while dealing with a writ petition against the Central Board of Film Certification (CBFC) seeking to revoke the certification granted to the film. With this, the petitioner had urged for the film to be injunct from being released in public domain.
“The petition alleges that the film is in complete contravention of the provisions of the Cinematograph Act, 1952, and the rules and guidelines associated with it. The petition further claims that the film is wrongly certified and its release would violate Article 19(2) and Article 25 of the Constitution.” (Para 2)
The order also noted the submissions made by Advocate Mayur Khandeparkar for the petitioner, who had claimed that the film’s trailer portrays the lives of married Muslim women as having no independent rights as individuals in society. Additionally, the counsel for the argued that this portrayal is based on a misreading of “Aayat 223,” a verse in the Quran.
“He submits that despite the modifications directed to be carried out prior to the release of the film the trailer did not contain any disclaimer nor any reference to the certification granted by CBFC (Respondent No 8). He submits that the trailer contains various dialogues and visuals which are derogatory to the Islamic faith but also to married Muslim women in India.” (Para 3)
The order also provided that to support the arguments being made against the release, the counsel had shown the trailer to the bench and pointed to the dialogues which the petitioner had found to be derogatory to the Islamic faith and married Muslim women in India.
“He also draws our attention to section 5B of the Cinematograph Act and sections 153A, 292, 293 295A and 505 of the Indian Penal Code, 1860 and submitted that a public exhibition of the film would hurt the sentiments of the Muslims and may create hatred in the society as more particularly pleaded in the petition.” (Para 5)
On the other hand, Advocate Advait Sethna for CBFC submitted to the court that the certification for the said film was granted after following all necessary procedures. Sethna relied on certifications dated January 23, 2024, and April 3, 2024, along with the excisions and modifications made to the film. In furtherance to this Sethna asserted that the objectionable scenes and dialogues have been deleted, and therefore, the petitioner’s contention that they still exist is baseless since they have not seen the film. Regarding the trailers released on YouTube and BookMyShow Sethna stated that those are not certified trailers and that appropriate action will be taken to withdraw these trailers.
“He submits that his clients would adopt such measures as deemed necessary to withdraw these uncertified trailers after following due process in law. He submits that the Respondents would take appropriate action against the producers if necessary after the appropriate hearing and decision thereon with regard to the exhibition of uncertified trailers on YouTube.” (Para 6)
Based on the arguments raised by both the parties, the impugned trailer as well as the petition, the court opined that prima facie a case against the film has been made out by the petitioner. However, the bench pointed to the issue of locus of the petitioner and the need for further hearings and viewing of the film. The present vacation bench also noted that since it was available only for the day, the matter will be heard by another bench or the regular bench.
In view of the above-stated, the court then passed the order restraining the makers from exhibiting, circulating, or making the film “Hamare Baarah” available for viewership to the general public on any public forum/platform until June 14, 2024.
“Respondent Nos. 1 to 6 are restrained from in any manner exhibiting, circulating or making available for viewership to the general public the film in question, namely “Hamare Baarah” on any public forum/platform including the platforms of the Respondent Nos. 10 to 12 till 14th June 2024.” (Para 9)
With this, the court scheduled matter to be placed before the regular court on June 10, 2024 and granted liberty to producers and the petitioner to mention the matter if required during the vacation or before the regular court. It directed the respondents to file and serve their replies on or before June 10, 2024.
The copy of the order can be viewed here: (Bombay HC hamare baraah film- June 5 order)
June 6: Bombay High Court directs constitution of a three-member review committee (interim order)
Pursuant to restraining the release of the movie, the Bombay HC had directed constitution of a three-member committee comprising independent persons, including one from the Muslim community, to review the film. A bench different from the one the vacation bench that restrained the release, a different vacation bench started rehearing the matter. As stated by the bench of Justices Kamal Khata and Rajesh S Patil, the matter was being reheard as the continuous strain on the release of the movie would cause the producers severe financial loss.
Based on the above stated view, the bench directed for the form a panel of three individuals from the Central Board of Film Certification (CBFC), including at least one member from the Muslim community, to view the said film in the course of the day and submit its report to the court. The panel formed was given the task to give their comments on the theme of the movie and more particularly on the averments in the Petition only.
“In view of the paucity of time, the Respondents are permitted to give the said film for the viewing by the committee in the MP4 format.” (Para 14)
With this, the court recalled the injunction put on the release of the film until further orders of the Court. The Court allowed the petitioners to raise objection against the order of the Court by June 7 in the morning at 9 am, since the first show of the movie was scheduled for 10 am.
“In any event if the Court finds after hearing the parties that the further exhibition of the film is to be injuncted the same will be considered tomorrow, i.e. June 7, 2024. It is clarified that the release of the film is now allowed, and shall be subject to further orders of this Court.” (Para 11)
In regards to the link of the teaser and/or trailer displayed on platforms such as YouTube, Book My Show etc., the Court directed the same to be disabled and removed from circulation/exhibition on social media platforms by all the concerned parties until further orders of the Court.
However, the court had clarified that the rival contentions of both the parties are expressly kept open and the Court has not expressed any opinion on the merits of the case.
The copy of the order can be viewed here:
June 7: Bombay High Court allows the release of the film (interim order)
On the morning of June 7, after a review panel had been formulated by the Bombay High Court and the injunction put on its release was recalled, the bench of Justices Kamal Khata and Rajesh S Patil allowed for the release after the certain controversial dialogues were deleted. By the way of an interim order, a said vacation division bench cleared the path for the film’s released while dealing with a writ petition against the CBFC seeking to revoke the certification granted to the film and thereby injunct it from being released. However, the HC allowed the release after the makers agreed to delete certain dialogues that the petitioner had claimed are derogatory.
As provided in the order, the scenes deleted from the film included dialogues such as “going against the husband is KUFR & the punishment for Kufr is death” and “Muslim women should be like the knot of the Salwar, as long as they stay inside it will be better.”
During the said hearing, the court had to consider the comments of the aforementioned CPFC review panel as well as to pass such further orders as would be necessary. The panel was tasked with providing an unbiased opinion on the film as per the provisions of the Cinematography (Certification) Rules, 2024.
Advocate Advait Sethna for CBFC submitted the report of the committee. However, the court expressed disappointment with the committee’s report, stating that it did not fulfil the purpose for which it was formed. The court stated that it was “pained to observed” that the purpose and intent with which the committee was formed and called upon to give its comments was completely frustrated as the committee asked for extension of time, till June 12. This additional time was sought by the panel as it would then allow them to engage in detailed discussions, consult relevant experts, and consider all relevant factors.
“These comments were certainly not what we asked for. The order is amply clear.” (Para 6)
“Despite these instructions the committee has chosen to seek time. This is totally unacceptable. The committee had clearly failed to carry out the obligations that it voluntarily undertaken to do.” (Para 7)
Senior Advocate Rahul Narichania for the makers informed the court that the makers were willing to delete certain dialogues from the film to prevent any substantial loss due to a delay in the film’s release. These dialogues were deemed controversial by the petitioners. Narichania clarified that the deletions were being made without prejudice to the rights and contentions of the makers.
Based on the arguments raised, the issue of financial loss to the film makers, agreement to deletion of certain dialogues, the lack of comments in the report of the CBFC panel formulated and issue of locus standi of the petitioner, the Court passed the interim order allowing for the release of the movie. The court concluded that prohibiting the exhibition of the film, which had already been certified by the CBFC, would severely prejudice the makers. The court cited previous judgments and held that allowing an individual to stall the release of a certified film would encourage holding film producers to ransom.
“We are of the view that if an individual such as in this Petition is permitted to stall the release of movies which have been duly certified by the CBFC it would encourage holding film producers to ransom.” (Para 15)
In light of this, the court recorded that from June 8, 2024 onwards, all shows of the film would exhibit the new version with the deleted portions. The court clarified that the deletion of dialogues was being done voluntarily by the makers and was not under the court’s orders. It also stated that this order should not be considered as a precedent for any other matter. The court granted the makers time till the end of the day today to delete all the necessary portions.
Additionally, the court also directed the makers to make an application to the CBFC Delhi for reissuance of the certificate. The court instructed the CBFC to reissue the certificate.
“We have passed the aforesaid order in the peculiar facts and circumstances of the case and to balance all equities as far as possible.” (Para 17)
The copy of the order can be viewed here:
June 13: Supreme Court suspends the screening of the film till disposal of the case on merits in Bombay HC
Aggrieved with two orders of the Bomby High Court vacation bench, of June 6 and June 7, the petitioners had moved the Supreme Court. The petitioner had raised arguments against the correctness of these two orders whereby the interim order retraining the release of the film (June 5) was vacated as well as the constitution of the Committee to be constituted by the CBFC. Notably, the CBFC was one of the respondents in the case itself.
Based upon the arguments put forth before the Supreme Court vacation bench of Justices Vikram Nath and Sandeep Mehta, the court suspended the screening of the film “Hamare Baarah”, until disposal on merits of the case pending over its release before the Bombay High Court. The Court had clarified that they are not entering the issue of the merits of the case.
“Considering the facts and circumstances of the case and in particular the fact that the Writ Petition is still pending before the High Court and the above orders are interim in nature, we dispose of the present petitions with a request to the High Court to decide the pending petition at the earliest and till such time the said petition is disposed of, the screening of the movie in public domain shall remain suspended.”
Ultimately, the bench left it for the High Court to decide the case on merits and stayed the screening of the film till such time. In addition, the petitioner was given liberty to raise the objection regarding constitution of the committee by the CBFC before the High Court.
“Both the parties will extend full cooperation in the disposal of the main petition and would not seek any adjournment”, the Court made clear in its order.
It is also essential to highlight that during the hearing, the bench had stated that they watched the teaser of the movie today and found it to be offensive.
As per a report of LiveLaw, upon the submission of the counsel for the movie producer that the teaser of the movie has been removed from social media, Justice Mehta said “Today morning we have seen the teaser. It is as such with all those objectionable materials. The teaser is available on YouTube.”
Justice Nath also emphasised upon the June 5 order of the High Court and stated that “The teaser is so offensive that the High Court granted an interim order.”
In addition to this, the bench also slammed the CBFC regarding the clear failure of the statutory body to do its duties, by referring to the fact that the movie makers themselves agreed to remove certain objectionable parts from the movie after its certification.
As per LiveLaw, Justice Mehta said “There is a body which has been constituted which is required to do its work faithfully. We find that it has failed, on the face of the record, in view of the admission that they (film makers) have themselves removed a part of the movie.”
Upon the allegation of Advocate Fauzia Shakil (for petitioner) that the High Court erred in asking the CBFC to appoint a committee, as it was an interested party, the Supreme Court bench had agreeing with the counsel. Justice Mehta had noted that the petitioner had raised contentions against CBFC and it was clearly an interested party. Unfortunately, these comments of the Supreme Court bench did not make it to the order.
Although a request was made by Srivastava that the High Court be directed to decide and dispose of the case within 1 week, the top Court declined to say anything in that regard. “We can only request the High Court, we are not supervisory authority“, Justice Mehta commented.
The copy of the order can be viewed here:
June 19: Bombay High Court allows for the release of the film
Pursuant to the order of the Supreme Court, through which the release of the film “Hamare Baraah” was suspended and the case was sent to be heard on merits by the Bombay HC, a division bench of Justices BP Colabawalla and Firdosh Pooniwalla passed an order allowing the release of impugned film. The said order was passed after the makers agreed to make certain changes in the movie. As provided by the report of LiveLaw, the makers agreed to remove a dialogue and a Quranic verse, and put two disclaimers of 12 seconds each in the film.
Prior to the passing of the order, during the arguments on June 18, the Court had agreed that the trailer and posters were troublesome but after the inculcation of the suggested changes, the film will not lead to any incitement.
“We don’t think there is anything in the movie that would incite any violence. If we felt so we would be the first ones to object to it. Indian public is not so gullible or that silly,” the court said.
It is essential to note that Court said it would be imposing a cost on the makers of the movie for releasing the trailer of the film even before receiving certification from the censor board.
“Violation was their vis-a-vis the trailer. So, you will have to pay something towards charity of the petitioner’s choice. Cost will have to be paid. This litigation has got the film so much unpaid publicity.”
The court had also cautioned the makers of the film to also be careful and not include dialogues and scenes under the garb of creative freedom to hurt the sentiments of any religion.
“The makers should also be careful what they put out. They cannot hurt the sentiments of any religion. They (Muslim) are the second largest religion of this country,” the court said, as per the report of Indian Express.
In its order of June 19, the bench said that it has viewed the film with the consent of parties and has heard counsel for parties at considerable length. Based on the same, the court had suggested certain changes and recorded them in the order. These changes were:
- Disclaimer shown in the beginning to last 12 seconds
- The message reading “According to the sharia (law), Muslims are allowed to practice polygyny. According to the Quran, a man may have up to four legal wives only if there is a fear of being unjust to non-married orphan girls. even then, the husband is required to treat all wives equally if a man fears that he will not be able to meet these conditions then he is not allowed more than one wife” together with its Hindi translation will be displayed on screen for a duration of 12 seconds.
- Certain dialogues, as provided and agreed to by both parties, to be muted.
- The words “Allah Hu Akbar” appearing in the dialogue at 45 min 4sec of the Film shall be muted.
- The recitation of Ayat 223 which is recited in Arabic language at the inception of the film will be muted.
- Fresh certification to be granted by CBFC after changes
- Upon such certification being received from the CBFC, to be granted no later than 12 noon on 20 June, will the film be allowed to be released on all platforms
- CBFC certified trailer allowed to be used for advertisement and publicization
- Upon satisfaction of the aforesaid conditions, no party shall have objection to exhibition of the Film and its trailer on any platform or screen
- A sum of Rs. 5 Lakhs to be donated by filmmakers within eight weeks to “Ideal Relief Committee Trust” which will be used to provide reliefs to people in times of natural disasters.
It is essential to note that based on the order of the court and the changes directed, the petitioner agreed to not raise any objection to the release of film after the agreed-upon changes are made to the movie. The makers also agreed to pay costs of Rs. 5 lakhs to a charity of the petitioner’s choice.
The copy of the order can be viewed here:
What did the offensive trailer entail?
The trailer for “Hamare Baarah” sets off alarm bells from the very beginning with its blatantly misogynistic premise. It opens by depictions that reduce women to mere property to be controlled by men, and through this slurs Muslims, too. This is further amplified by a scene depicting a husband’s complete disregard for his wife’s well-being. Even when she complains of being unwell, the trailer condones the man’s entitled expectation of conjugal relations, stating that a wife’s primary function is to serve her husband’s desires, regardless of her own health or consent. The trailer then portrays a wife as existing solely to fulfil her husband’s wishes. Women are then compared to drawstrings of a pant, to explain why it’s better to keep them inside.
Directed by Kamal Chandra, “Hamare Baarah” is produced by Radhika G Film & Newtech Media Entertainment. Ravi S Gupta, Birender Bhagat, Sanjay Nagpal, and Sheo Balak Singh are credited as producers, with Triloki Prasad set as co-producer. It is essential to note that the film had earlier been titled as ‘Hum Do Humare Baraah’, and was retitled as Hamare Baarah” as per a directive by the CBFC.
On June 7, the Karnataka government had banned the release and broadcast of the Bollywood film “Hamare Baarah” for at least two weeks or until the regular order of the Bombay High Court, stating that if allowed to be released in the state, the film might trigger communal tensions.
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