In January this year, Mushtaq Moosa Tarani and 36 other accused in the Bombay bombings case had moved court on the grounds that the film would create a bias against them at a time when the court verdict is awaited. Last week, the Bombay High Court imposed a stay on the film's release till the designated Terrorist and Disruptive Act (TADA) court in the blast case delivered its judgement. The producers now intend to move the Supreme Court against the decision.
Earlier in the hearing, Aspi Chenoy, the counsel for the producers, had submitted that banning the film would amount to curbing freedom of expression guaranteed by the Constitution. "Curbing of freedom of expression can be done only in the case of eminent and present danger. It can't be done on presumption of far-fetched arguments," Chenoy argued. The counsel of the accused, P.A. Sebastian, countered with excerpts from the film's script, which depicted the accused as "terrorists and agents of ISI".
Meanwhile, Delhi advocate Vrinda Grover is looking beyond just a battle between creative freedom and legal rights, at a larger "conflict between the right to business and right to life". "The TADA/POTA accused generally face the death penalty. Against this, someone's money-making opportunity is getting affected. However, the Indian constitution clearly gives primacy to right to life," she argues.
Still Kashyap has his supporters. Media commentator Sudheesh Pachauri thinks the decision was pre-emptive. "They should have allowed the film's release and brought it in for a public debate later," he says.
Kashyap himself contends that the film is based on Midday assistant editor S. Hussain Zaidi's book and shouldn't be stopped, since the book has been in circulation since Penguin published it in 2002.
"The film's data is in the public domain. What more harm can it do to the accused?" asks producer Arindam Mitra. "It's not conducting an investigation into an incident like Fahrenheit 9/11 or JFK. It's just reporting the incident," adds filmmaker Aditya Bhattacharya.
Grover argues the written word and the image are different: "Through TV, we are aware of the visual medium's ability to mobilise hate and prejudice. The impact of a book is not a patch on the influence of the visual."
But Shohini Ghosh, reader, Mass Communication Research Centre, Jamia Millia Islamia, finds it difficult to digest that celluloid is perceived as more threatening than books. "There's this psychological problem with cinema. We are creating this hierarchy of threats with cinema at the helm," she says. Also, all media has discussed the case.
And the case seems to question cinematic depiction of reality itself—how real can you get on screen? The accused feel that Kashyap's naming them could interfere with a fair trial. "How can a film using real identities be released when the verdict is still awaited?" asked lawyer Majeed Memon, representing the accused.
Aruna Vasudev, editor, Cinemaya, thinks the film is "wonderful" and "outstanding" but "it is taking names, is determined to state facts and that's taking a hell of a chance.It throws them open to libel," she says.
"If I were to change names, I would be falsifying things," counters Kashyap, like one obsessed with realism. "Contemporary political history gets difficult for people to chew on," he argues. No wonder our censors gave an 'A' certificate to a film like Shonali Bose's Amu, based on the 1984 Sikh riots. Reportedly, their logic was that the young need not be reminded of history dead and buried.
Kashyap supporters doubt the film could prejudice the judiciary. In fact, the producer's counsel Ashok Desai had said before the SC that he failed to understand how the movie would prejudice the case as no "professional judge" was "influenced" by what appeared in the media.
The only precedent in India to the Black Friday case was that of Zee TV's 2002 film on the December 13 Parliament attack. The channel recreated the incident, and when the lawyers of the accused asked for a stay on the telecast till the judgement was pronounced, the Supreme Court let Zee telecast it, observing that judges by their judicial training were not expected to be influenced by any film. In that case, the trial court held the accused guilty and pronounced a death sentence, though after a 2003 part acquittal by the high court the case has moved to the Supreme Court.
America saw a similar case during a multi-billion tobacco lawsuit, when attorneys for Brown and Williamson Tobacco Corp asked the judge to bar the jury from seeing The Insider, the film about B&W whistle-blower Jeffrey Wigand. They said that the film could prejudice the jury. Though the judge ordered the jurors not to watch the film, it was released countrywide for the general public.
In any case, Kashyap claims his film doesn't demonise the accused. He says it points fingers at no one; it traces the roots of terrorism back to our political system and its increasingly unholy alliance with religion. In this particular instance, the provocation for the killings, allegedly masterminded by Tiger Memon, is shown to be the Babri Masjid demolition. He says the film furthers Mahatma Gandhi's message: an eye for an eye will make the whole world blind.
Kashyap is clearly dejected. "Will cinema be only about entertainment and escapism?" he asks. It could be a long time before the film is released. The Bombay bomb blast case is one of India's longest-running trials. It began in June 1995 and concluded in July 2003, with over 600 witnesses questioned. The judgement was to have been pronounced in July 2004 but the judge has a difficult task ahead with 13,000 pages worth of evidence to sift through and a chargesheet that runs into over 10,000 pages. Till all that is done Anurag Kashyap will remain a filmmaker in search of a debut.