Since the Ministry of Defense (MoD) directed the Ministry of Communication (MoC) to ban its screening a couple of weeks ago, Badhsala has become a hot topic of discussion and debate in Nepal. The MoD’s letter to the MoC tries to justify the ban citing Film Production, Broadcasting and Distribution Act and its Regulation. MoC, on the other hand, has argued that since filmmakers had not sought prior permission from the Nepal Army to use army uniform in the movie, the movie deserved a censor. Both of these institutions have tried to falsify the affair. The truth is that the filmmakers are under no legal compulsion to take such permissions. MoD seems to have decided to withhold screening because Badhsala depicts human rights violations committed by Nepal Army during the conflict-era.
In a democratic society, everyone has a fundamental right to enjoy freedom of expression. Article 12.3 (a) of Interim Constitution guarantees freedom of opinion and expression to every citizen. Freedom of expression can be exercised in different forms and through different means such as speech, opinions and reports in the newspapers and magazines, and visuals as in Badhsala. The movie presents real stories of the victims whose rights were violated by NA soldiers and officials.
The cases of rights abuses and NA’s involvement in them have been made public through various opinion pieces, study reports and analysis. But neither MoD nor NA had objected to such reports and opinions till date. Why are they so concerned about Badhsala then? Perhaps because they believe the message will be more effectively delivered through visual means. This also raises the suspicion that NA is bent on sweeping the cases of abuses committed in the past under the rug.
Our office bearers in law enforcement agencies with their Panchayat mindset hold a very narrow understanding of freedom of expression. As in the Panchayat era, to say anything against government institutions, through whatever means, lands you in trouble. Badhsala is just a case in point. Security officials in Nepal often arrest political activists and cadres for protesting with a ‘black flag’ against the government, which is only an act of dissent. Perhaps the authorities in Nepal would do well to learn how freedom of expression is respected elsewhere.
The US Supreme Court in its legendary 1989 verdict Texas v Johnson declared that burning a national flag to express dissent against the government is a right of American citizen protected by the US constitution. A controversy similar to Badhsala was raised in the US by the movie Zero Dark Thirty which portrayed acts of torture committed by the US authorities on their detainees for obtaining information on Osama Bin Laden. But the movie was not banned. Rather it was nominated among the best motion pictures for the Oscars. Does this mean that freedom of expression is less valued in Nepal than in the US? This should be a cause for concern.
It is important to understand that banning a movie is an attempt to curtail freedom of expression.
Movie ban is not a new phenomenon in Nepal. CPN-Maoist restricted screening of Hindi movies a few months ago. The recent ban on Badhsala, thus, could be taken as a continuation of the past trend. It is important to understand that banning a movie is an attempt to curtail the freedom of expression of filmmakers. The civil society and rights activists need to bring the issue into greater debate so that a similar mistake is not made in the future.
Freedom of expression is lifeblood of democracy. It has remained a key issue in all the political movements in the country. Protecting freedom of expression is all the more important during transitional politics, one of whose imperatives is discovering the truth behind rights violation allegations from the conflict era. Badhsala could have been a start at unraveling the truth about the violent conflict. But by enforcing a ban on it, government authorities have tried to deny the general public their right to truth. It has also raised a question mark on government’s commitment to democratic ideals.
Under these circumstances, the MoD needs to understand that if the issue is taken to the Supreme Court, the apex court is likely to annul MoD’s decision for it concerns filmmakers’ right to freedom of expression, which is constitutionally protected. The government authorities, MoD and MoC in particular, need to lift the ban on the work of art as soon as possible. People’s right to watch Badhsala needs to be safeguarded.
The author is pursuing an LLM at Boston College Law School, US