Monday, February 04, 2013

The ‘Viswaroopam’ Affair

Guest Post by Suchindran B.N., who is an Advocate practicing in the Madras High Court.

The true test of liberty is the right to test it, the right to question it, the right to speak to my neighbors, to grab them by the shoulders and look into their eyes and ask, “Are we free?” I have thought that if we are free, the answer cannot hurt us. And if we are not free, must we not hear the answer?

The manner in which the freedom of speech and expression has been effectively suppressed by a seemingly malicious government; and the disturbing refusal of the Madras High Court to thwart their attempts are, unfortunately, the reality of the moment. The film ‘Viswaroopam’, irrespective of its cinematic merits, is the exercise of one of the most valuable fundamental rights of a citizen. And it will be my attempt to highlight that, for all effective purposes, Mr. Kamal Hassan’s rights as producer and director of the film has been infringed - whatever be the final outcome of the writ petition in the Madras High Court and the Supreme Court. It is, however, still hoped that the Supreme Court may remedy this, as, when and if the matter is taken up there.

The sequence of events is this: The film ‘Viswaroopam’ is slated for release on Friday, the 25th of January, 2013. Some concerns had been raised by some ‘muslim’ groups that the film may hurt their religious sentiments. A special screening of the film was arranged for them by the director and producer on the 21st of January. After the screening, the 6 persons who viewed the film said they will get back to the directors about any objections, if they had any. The film was cleared by the Censor Board on the 22nd of January 2013. On their subsequent representation and certain intelligence reports, the executive magistrates across Tamil Nadu issue orders under Section 144 of the Criminal Procedure Code to theatre owners preventing the screening of the film on the 25th of January 2013. The producer rushed to Court on the next morning to move a lunch motion challenging the order and the matter was posted at 1.15 pm.

The hearing on the 24th of January went on for quite a while and much was made of the fact that the Judge missed his lunch and sat in Court to hear the matter and couldn’t attend function in the districts. When the matter was taken up in the afternoon, the Court was informed that in all 31 districts in Tamil Nadu, the executive magistrates were constrained to pass orders preventing the screening of the film under Section 144. Before the petitioner counsel could open his arguments, there were interruptions by counsel purportedly representing DTH operators, various minority groups, a ticket purchaser, and one advocate representing ‘the fans of Ulayanagan Kamal Hassan’. The Advocate General of Tamil Nadu told the Court that ‘bloodshed’ would be the result if the film was released. He later withdrew this remark on the urging of the judge. The court was informed by petitioner counsel that the law was settled on this point and that once the Censor Board has granted a certificate, it is not open to the State Government to ban the film. However, the Court refused the injunction on the grounds that the government had certain complaints and intelligence reports that were shown to the judge but not to the petitioners.

A special viewing of the film on 26th January 2013 was ordered and the matter was posted to the 28th of January 2013. On that day, Counsel for the petitioner asked for permission to move a lunch motion to challenge the various individual orders passed under Section 144 of the Criminal Procedure Code. The judge asked them to bring the matter up on the next day i.e. 29.1.2013 while making remarks in court that the petitioner should explore the amicable settlement of the issue. The matter was heard at length, including the interveners who were made parties on application. The order was finally passed after 10 PM effectively staying the orders passed under Section 144 and allowing release of the film.

The Advocate General and his deputy rushed to the residence of the Chief Justice and got his permission to move the appeal the next morning before the first bench. The appeal was listed and brought up at 2.15 PM. The Advocate General made his submissions after which the Acting Chief Justice raised a query of why the petitioners had not challenged the orders of the 31 executive magistrates under Section 144(5). The bench then proceeded to set aside the interim order of the single judge allowing the appeal of the State and effectively allowing the ‘banning orders’ to continue.

On a point of order, it must be respectfully said that, when the matter first came up before the single judge of the Madras High Court, neither the fringe groups, the DTH operators, or the counsel purportedly representing a ticket purchaser or the fans of ‘Ulayanagan Kamal Hassan’ should have been given a hearing. This also gave an opportunity to the fringe groups to bring in various extraneous considerations to weigh upon the issue!

Further, the observations made by the judge in open court the 28th of January 2013, regarding exploration of an ‘amicable settlement’, and that the ‘unity of the nation’ was more important than the rights of individuals were not appropriate. Firstly, in a writ petition filed for enforcement of the fundamental rights, who should the petitioner explore options of amicable settlement with - The government or the ‘fringe’ groups? Secondly, were there any signs on the ground to show that the ‘unity of the nation’ was at any risk? Either ways such comments in the courtroom of a constitutional court only diminish the fundamental nature of the rights, as it indeed did on that day!

In light of the judgements of the Supreme Court in S. Rangarajan, Shankarappa, and Prakash Jha, and the decision of the Madras High Court in Sony Pictures, the following propositions emerge that, firstly, the right of censorship is not not given to State governments; and secondly, that the State government cannot plead an inability to maintain law and order as a reason to prevent screening of a film. Indeed, it has been held exactly to the contrary, that it is the duty of the State government to maintain law and order and ensure the safe screening of a film that has been cleared by the expert body i.e. CBFC. In Prakash Jha’s case, the U.P. government had sought to prohibit screening of the film ‘Aarakshan’ under the U.P. Cinemas (Regulation) Act, 1955, the Supreme Court had, after considering the previous precedent on the issue expressly held that they cannot prohibit the screening of the film in the manner as sought to be done adding that:
“Therefore, since the expert body has already found that the aforesaid film could be screened all over the country, we find the opinion of the High Level committee for deletion of some of the scenes/words from the film amounted to exercising power of pre- censorship, which power is not available either to any high-level expert committee of the State or to the State Government. It appears that the State Government through the High Level Committee sought to sit over and override the decision of the Board by proposing deletion of some portion of the film, which power is not vested at all with the State.”
The passage of Section 144 orders in all 31 districts was clearly an attempt to hoodwink the settled law by doing indirectly what the State government could not do directly.

Furthermore, the arrangement of screening of the film with representatives from all sides itself, in my opinion, was improper at the interlocutory stage. All the learned single judge was bound to decide on that day was whether the petitioners had proved a prima facie case, a balance of convenience in their favour, and the irreparable injury that would be caused to them if the injunction was not granted. These factors could not have depended on the merits or demerits contained in any of the visuals in the film. Especially, when the statutory body empowered to decide such issues has already seen and cleared the film. Indeed, it has been noted that the Section 5B of the Cinematograph Act, 1955 only reproduces the permissible restrictions on the freedom of speech as it existed prior to the first constitutional amendment. Once a statutory, and admittedly, an expert body, has gone into those very grounds can the State government take a contrary view? This is especially remarkable since the sanctioning of cinematographic films for exhibition comes under Entry 60 of the Union list.

The single judge made two strange observations in his first order. First, the judge held that whether the sentiments of the people are affected or not could only be decided only after viewing the film. Second, he took the view “the interest of the public at large that during republic day has to be viewed more than” any possible monetary loss to the petitioners.

These comments deserve an unequivocal rebuttal. Firstly, the High Court seems to have been conscious of the grave monetary loss that would be caused to the petitioners as can be evidenced from his direction to the first two respondents to ensure that no piracy should be allowed. Secondly, I do strongly suggest that the freedom to suspend Article 19(1)(a) on the anniversary of our republic is not given to the State government, and it does not behoove a constitutional court to accept such a reason and record it in its order. If the Court was concerned with upholding the fundamental rights of the petitioner, in my opinion the final interlocutory order passed on 29th of January, 2013 should have been passed on the 24th of January itself since there was no material change in either the arguments or circumstances of the case except that Republic Day celebrations had been concluded.

Moreover, it is also pertinent to note that, the same learned single judge, while heading a division bench, was called upon to adjudicate on a Public Interest Litigation filed by the International Sri Vaishnava Dharma Samrakshanaa Society objecting to the Censor’s Board’s clearance to Kamal Hasan’s earlier film ‘Dasavataram.’ In that case, the bench had dismissed the petition after citing the cases of the Supreme Court mentioned above.

All the cases cited above (except the judgement of the division bench of the Madras High Court) were painstakingly cited by the counsel for the petitioner at all 3 hearing i.e. before the single judge on 24th and 29th of January and before the first bench on 30th January and still both benches disregarded the submissions. (Nic Robinson has tried to highlight this in a recent article in his article “Top Heavy Justice” published in the Indian Express) The actions of the State Government flew directly in the face of the following observations of the Supreme Court:
“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 tantamount to negation of the rule of law and a surrender to black mail 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 prevent it and protect the freedom of expression.”
In the face of this pronouncement, the fact that the single judge proceeded to pass an order citing law and order problems is highly regretable.

The refusal of the High Court to uphold the freedom of speech and expression is going to have a ‘chilling’ effect on the fundamental freedoms. Other film-makers and artistes will think twice before freely exercising their freedom of speech and expression, especially considering the considerable planning and financial interests involved in such ventures nowadays. If the State Government had considerable evidence of a genuine and grave threat to ‘law and order’, and had disclosed this to the Court, then a possible solution would have been not to issue any stay orders but to ask the State to deposit at least the costs of making the film into Court with liberty for the successful party in the writ petition to withdraw the same!

This post has greatly benefited from discussions on the issue with Shivprasad Swaminathan (Assistant Professor, Jindal Global University) and Ananth Padmanabhan (Advocate, Madras High Court). The article has also benefited from suggestions for Arun K. Thiruvengadam (Assistant Professor, National University of Singapore)

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