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Films and Free Speech

The law does not permit bans on films which hurt the feelings of worshippers of historical figures or political leaders. Unfortunately, the Supreme Court's rulings have been none too consistent.

CIVIL LIBERTIES

no one could complain. The state cannot

prevent open discussion and open expression however hateful to its policies.

Films and Free Speech

The Supreme Court’s rejection of the A G Noorani grounds on which the film was sought to

The law does not permit bans on films which hurt the feelings of worshippers of historical figures or political leaders. Unfortunately, the Supreme Court’s rulings have been none too consistent.

A G Noorani is a well-known lawyer, scholar and political commentator.

Economic & Political Weekly

EPW
may 3, 2008

O
n September 24, 1970, the Supreme Court ruled in the landmark case of Khwaja Ahmad Abbas vs Union of India (AIR 1971 SC 481; (1971) 2 SCJ 242) that censorship of films was necessary provided that it was subject to proper guidelines being instituted for the Board of Film Censors and there was, besides, an independent tribunal to decide disputes. It is doubtful if these two tests have been met at all. In S Rangarajan vs P Jagjivan Ram ((1989) 2SCC 574) the court emphasised, on March 30, 1989, the importance of freedom of speech, a fundamental right guaranteed by Article 19(1) of the Constitution with specific reference to films. It concerned the film Ore Oru Gramathile (In Just One Village).

Its theme was that reservation of seats on the basis of caste was unfair to brahmins. Economic backwardness, not caste, should be the criterion. The Madras High Court was of the view that public reaction to the film was bound to be adverse and the people of Tamil Nadu, who had suffered for centuries, would not allow themselves to be deprived of the benefits of reservation based on caste. The Supreme Court reversed this ruling. Its observations bear recalling in the increasingly intolerant clime of today:

Democracy is a government by the people via open discussion. The democratic form of government itself demands its citizen an active and intelligent participation in the affairs of the community. Public discussion with people’s participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government. Democracy can neither work nor prosper unless people go out to share their views. The truth is that public discussion on issues relating to administration has positive value…

Movie is the legitimate and most important medium in which issues of general concern can be treated. The producer may project his own message which the others may not approve of. But he has a right to ‘think out’ and put the counter-appeals to reason. It is a part of a democratic give-and-take to which

be banned are of abiding relevance and

deserve to be quoted in extenso. In the affidavit filed on behalf of the state government, it is alleged that some organisations like the Tamil Nadu Scheduled Castes/Scheduled Tribes People’s Protection Committee, Dr Ambedkar People’s Movement, the Republican Party of India have been agitating that the film should be banned as it hurt the sentiments of people belonging to scheduled castes/scheduled tribes. It is stated that general secretary of the Republican Party of India has warned that his party would not hesitate to damage the cinema theatres which screen the film. Some demonstration made by people in front of The Hindu office on March 16, 1988 and their arrest and release on bail are also referred to. It is further alleged that there were some group meetings by Republican Party members and Dr Ambedkar People’s Movement with their demand for banning the film. With these averments it was contended for the state that the exhibition of the film will create very serious law and order problem in the state.

We are amused yet troubled by the stand taken by the state government with regard to the film which has received the National Award. We want to put the anguished question: What good is the protection of freedom of expression if the state does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would be tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed against the state. The state cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to present it and protect the freedom of expression.

The state refuses to perform its duty,

however, it submits to mob opinion.

Political Censorship

The Mumbai unit of the Bahujan Samaj Party (BSP) has sent a note to the Indian Motion Picture Producers’ Association and the Indian Film Directors’ Association asking them to get in touch with the party before they make any film on either

CIVIL LIBERTIES

the BSP founder, Kanshi Ram or the UP chief minister, Mayawati.

Anybody who is producing/directing films/ biopic on either Behan Kumari Mayawati and Manyawar Kanshiramji, must get in touch with us immediately for they claim that they have taken permission from Behenji which is not to the knowledge of Behenji or BSP.

If such a claim is made and no permission in fact had been accorded, opposition would be justified. But the BSP’s leader in Mumbai went further and asserted that it “was incorrect to film the life of a person without his/her consent” (Indian Express, April 4, 2008). This assertion is unwarranted. Asaf Ali Zardari has also said that no film on Benazir Bhutto can be made without his consent.

A film producer is no more bound to secure permission or consent from the subject to his film than the writer of a biography is. In either case, a false claim of consent would invite legal action as, indeed, would anything defamatory of the person. For the rest, the fundamental right to freedom of speech applies as much to films as it does to books; as much to the electronic media as to the print media. There is a gross misconception that films stand on a lower footing. This is partly because they are subject to precensorship and partly because the climate of intolerance has become more pervasive and, sadly, the Supreme Court has not followed consistently the approach it did in Ore Oru Gramathile’s case in 1989.

Some moves by the government of India in 1994 revealed what was afoot; fortunately, they got nowhere. Usha Rai of Indian Express reported in July of that year that “the new guidelines (under discussion) for film producers seek not only to eliminate vulgarity and violence in films but the denigration of ministers, public officers and others holding public office as well”.

Hasan Suroon of The Hindu (July 21, 1994) also reported these plans:

Is correct political censorship of films

round the corner? This is the question

doing the rounds of film circles following

reports that among the proposals being

discussed by the Censor Board to tighten

censorship rules there is one that seeks to

ban unflattering references to politicians

and the police…If the proposal is finally accepted, films portraying politicians and senior police officers as anti-national or corrupt would have a difficult time getting the nod from the censors. And considering that corrupt politicians and police officers are as much a staple diet of both mainstream and parallel cinema as are sex and violence, film-making would either come to a halt or have to find a radically new expression, completely divorced from real life.

Around this time the censors began playing games with video-magazines; delaying certificates till the subject lost topicality and popular interest.

The stark truth is that in India “political cinema” is struggling for survival. The mainstream producers’ concern is to entertain and make money. It is a few dedicated ones like Anand Patwardhan who keep the flag flying.

Inconsistent Rulings

The state has adopted a new weapon. It either itself foments an agitation through the ruling party or exploits one to gain political mileage. The modus operandi of a ban is to file an FIR under Section 153-A of the Penal Code (promoting communal disharmony) and then forfeit the book under Section 95 of the CrPC. However, Section 96 enables “any person having any interest” in the book to apply to the high court to set aside the order. Any citizen can do so. The application must be heard by a bench of three judges. Alternatively, the citizen can move the Supreme Court for enforcement of his fundamental right to freedom of speech and expression.

Section 153-A is not invoked to suppress the Vishwa Hindu Parishad’s or the Shiv Sena’s hate campaigns, but to suppress scholarly books unacceptable to them. Its core is disharmony “between different groups…or communities” or commission of an act “prejudicial to the maintenance of harmony between” them and “which disturbs or is likely to disturb the public tranquility”. The essence is communal discord, group hatred. The second part applies if additionally it affects public peace too. An agitation whipped up on the ground that people were offended by comments on a historical figure does not attract Section 153-A.

The law is clear beyond all doubt. The law of defamation can be invoked only by the dead person’s “family or other near relatives” (Explanation 1 to Section 499 of the Penal Code). Section 295-A penalizes words, uttered or written, “with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India”.

The law does not permit bans on books or films which hurt the feelings of worshippers of historical figures (be it Shivaji or Aurangzeb) or political leaders. Unfortunately, the Supreme Court’s rulings have been none too consistent. In the case of the serial on Tipu Sultan’s life, it gratuitously ordered the insertion of a disclaimer that it depicted his life truly. The court had no right or power to do so. No writer of historical fiction need make such disclaimers. Neither the court nor politicians can prescribe “the correct version”. That is for the public to debate. Like literature, the movie serves the public interest if it fosters intelligent debate. That it can do only if it is “controversial”

Cowardly governments run by politicians with an eye to popular clamour, and timorous judges attuned to this clamour (as in Tipu Sultan’s and other cases) render the Supreme Court’s ruling in 1989 obsolete and irrelevant.

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may 3, 2008

EPW
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