Authors: Srividya K Kaimal and Nidhi Bhuwania
Speech is a God’s gift to mankind and the basic element for the subsistence of human race. Speech is a form of expression by virtue of which the bare requirement of communication is fulfilled and it is therefore, a basic human right. Every person must have a right to express his thoughts, feelings, opinions, ideas, etc in any form without interference and to seek, receive or impart information through any medium of communication.
In modern time it is widely accepted that the right to free speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance and especially without fear of punishment plays significant role in the development of a state.
The source of such right can be traced back to the Indian Constitution, 1950 which mandates such right as ‘fundamental’ in its existence. Meaning thereby, Article 19(1)(a), under Part 3 of the Indian Constitution inscribes such right as a Fundamental Right which forms the basic structure of the Constitution. It thus, includes the expression of one’s idea through any communicable medium or visual representation such as gestures, signs, symbols and the like. Meaning thereby, that though it does not explicitly specify that Freedom of Speech includes Freedom of Press but it is implicit in Article 19(1) (a) of The Constitution of India.
This right as provided under Article 19(1)(a) also connotes publication and thus, freedom of press is also included in this category. This freedom of press imbibes within its ambit not only publication of newspapers or news channels but also includes films which is a medium of spreading awareness, dissemination of information and knowledge about the prevailing scenarios and circumstances in such a way that public can closely relate to it. Any medium of speech which reaches out to the masses shall be included in the ambit of the Article.
As it is rightly stated by Mr. William Blackstone in his commentary that every free man has undoubted right to lay what sentiment he pleases before the public; to forbid this; is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity, which was quoted by M Patanjali Sastri in Brij Bhushan And Another Vs. State of Delhi ((1950 AIR 129)).
As it is rightly known that ‘no right is absolute’. This concept comes from the basic notion that ‘every right has a corresponding duty’. A person having a freedom to express his thoughts in whatever practicable way has a corresponding duty not to hurt other feelings by his words, gestures, sign, symbol or the like.
Thus, our Constitution while guaranteeing Freedom of Speech and Expression had put Reasonable Restriction to this Fundamental Right under Article 19(2) which states that ‘nothing in Article 19(1)(a) shall effect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence.’
The norm behind imposing such restrictions is the fact that the fundamental right of a person as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people ((CPM vs. Bharat Kumar, 1998 SC 184 [3J])).
However, the Test of Reasonableness is based on the nature of the rights alleged to have been infringed, the underlying purpose of restriction imposed, the extent and urgency of the evil sought to be remedied (( M Patanjali Sastri ,CJI in St of Madras v. V G Row, 1952 AIR 196))
In Papanasam Labour Union vs. Madura Coats Ltd ((1995 AIR 2200)), Justice G N Ray laid down the following principles and guidelines which should be kept in mind for considering the constitutionality of a statutory provision on ground of unreasonable restrictions:
(a) The restriction sought to be imposed on the Fundamental Rights guaranteed by Article 19 must not be arbitrary or of an excessive nature so as to go beyond the requirement of felt need of the society and object sought to be achieved. (Chintaman Rao, 1951);
(b) There must be a direct and proximate nexus on a reasonable connection between the restriction imposed and the object sought to be achieved (Pathumma, 1978);
(c) No abstract or fixed principle can be laid down which may have universal application in all cases. Such consideration on the question of quality of reasonableness, therefore, is expected to vary from case to case (Pathumma, 1978);
(d) In interpreting constitutional provisions, Court should be alive to the felt need of the society and complex issues facing the people which the Legislature intends to solve through effective Legislation and the Judicial Approach must be dynamic, pragmatic and elastic (Pathumma, 1978);
(e) It is imperative that for consideration of reasonableness of restriction imposed by a Statute, the Court should examine whether the social control as envisaged in Article 19 id being effectuated by the restriction imposed on Fundamental Rights (Pathumma, 1978);
(f) Although Article 19 guarantees all the seven freedoms to the citizens, such guarantee does not confer any absolute or unconditional right but is subject to reasonable restriction which the legislature may impose in public interest. It is therefore necessary to examine whether such restriction is meant to protect social welfare satisfying the need of prevailing social values (Pathumma, 1978);
(g) The reasonableness has got to be tested both from the procedural and substantive aspects. It should not be bound by processual perniciousness or jurisprudence of remedies;
(h) Restriction imposed on the fundamental rights guaranteed under Article 19 must not be arbitrary, unbridled, uncanalised and excessive and also not unreasonably discriminatory. A restriction to be reasonable must also be consistent with article 14;
(I) In judging the reasonableness of the restriction imposed by Article 19(6), the Court has to bear in mind the Directive Principles of State Policy; and
(j) Ordinarily, any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be reasonable restriction in the public interest.
The aforesaid mentioned are the guidelines which must be considered by the State while restricting one’s right to speech and expression by imposing certain ‘reasonable restriction’ on it.
Though Article 19(2) was added to the Constitution for the purpose of maintaining an ordered society, it has been used over years by many as a weapon to restrict such freedom of people according to their whims and fancies. This reasonable restriction is now turning into an unreasonable one for people to express their though either by words or through media including films.
A motion picture commonly known as ‘films’ is simply a series of still pictures shown quickly so they simulate motion. But a film can be much more than that. It can tell a story, inform people of news, or educate them or bring awareness as to what is happening in the society. Thus, freedom of expression without unnecessary curtailment in such aspect is a vital parameter for the development of a society.
As rightly said by Hidayatullah, CJ in K A Abbas vs. UOI and Anr. ((1971 AIR 481))that ‘The task of the censor is extremely delicate. The standards that we set out for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and forever from human thought and must give scope to talent to put them before society. The requirement of art and literature include within themselves a comprehensive way of social life and not only in its ideal form and then the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the deprived begins to see in these thing more than what an average person would, in much the same way as it is wrongly said, a Frenchman see’s a women’s legs in everything it cannot be helped.’
The test of average moral man stated by Vivian Bose, J. in Bhagwati Charan Shukla 1947 ‘is strong- minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.’
In Dr AR Lakshmanan, J in S Rangarajan (( 2 SCC 574)), the Madras High Court revoked the ‘U’ certificate issued to a film on the ground that the exhibition of the film was likely to cause public disorder and violence. On appeal by the producer of the film and Union of India, the Supreme Court reversed. The Court not only reiterated the importance of speech and expression and the role of films as a legitimate media for its exercise, but also held that if exhibition of the film cannot be validly restricted under Article 19(2) it “cannot be suppressed on account of threat of demonstration and processions or threat of violence”. It further observed that “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 obligatory duty to prevent it and protect the freedom of expression.”
While other clauses of Article 19 grant the right to do something, clause (a) grants the ‘freedom of right’ to do something. It leads to the creation of new ideas and knowledge, finding of truth, building tolerance and receptivity and is essential for self rule.
Thus, to see that peace is maintained in the society and every person is given an opportunity to express his views before the public, the Constitution has enacted the Cinematograph Act, 1952 and the Cinematograph (Certification) Rules, 1983, bringing the censorship of films under the Parliamentary domain according to Entry 60 of Union List of Schedule VII of The Constitution of India.
With the enactment of Cinematography Act, 1952 along with Article 19(2) of the Constitution, the Censor Board has played a great role to see that sentiments of no citizen would be hurt by public exhibition of a movie.
But there are many instances where certain group of the society tries to curtain the rights of the artists for their narrow minded thinking. This has been seen in many recent incidents, for instance in Rang De Basanti, where it ran into controversy because the story featured corrupt politicians and the repeated crash of fighter planes. The film was only cleared after a positive nod from the Defence Minister Pranab Mukherjee and the three chiefs of the Defence forces after viewing the film on the invitation from the Board.
Similarly, in Water, a 2005 movie by Deepa Mehta which is set of 1938 and examines the plight of impoverished widows at a temple in Varanasi. India ran into controversy with the Hindu fundamentalists. Mehta originally intended to direct Water in February, 2000 but before filming had begun, some 2,000 protesters destroyed the main film set and even gave death threats to Mehta. Eventually the film was shot secretly with a different cast in Sri Lanka, under the title River Moon in 2003. In spite of wide international recognition, the film is yet to be released in India. The Censor Board finally cleared the movie to be released in India in November 2006.
The list of the films are not exhaustive but only a tip of the iceberg of what goes on day in and day out has been mentioned. There are numerous such instances where films got into trouble while dealing with matters of serious nature. However, the phenomenon is not all together new. Past films have also been targets of community and government ire. Many years back, two films Aandhi and Kissa Kursi Kaa were perceived to be about the then-Prime Minister Indira Gandhi. Kissa Kursi Kaa turned out to be the most controversial film ever made in the history of Indian cinema. The film was accused of scathing criticism of the functioning of the Central Government under Mrs. Gandhi. The film’s negative was burnt and the film had to be re-shot.
In yet another film of Rakesh Sharma which drew similar controversy is Aftershocks: The Rough Guide to Democracy (2002). Set in Gujarat’s post-earthquake situation of 2001, it engages itself with the debate of Environment vs Development and examines the fate of marginal citizens in a welfare state. It shows how the government controlled mining company sees the quake as God sent opportunity to acquire two quake-affected lignite rich villages. This was also rejected by the government-run Mumbai International film festival in 2002.
Even though Vivian Bose, J. had once stated that ‘open criticism of government policies and operations is not a ground of restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to the democracy as to the person himself.’ This shows that even the judicial decision is not given heed to when certain group’s sentiments are hurt. Even when the facts depiction is merely a truth.
The latest controversy on the Freedom of Speech and Expression in India is on the newly released film ‘Vishwaroopam’. The State of Tamil Nadu banned the screening of the film for two weeks which is directed and starred by Actor, Kamal Hasan. The thriller, which was produced in Tamil, Telegu and Hindi versions was banned in the State after 20 Muslim groups objected its content by believing that some scenes in the film portrayed the community in a bad light. Though the Single Judge of Madras High Court ordered the State to lift the ban but the Court’s orders were over-turned by the Government’s appeal to the Divisional Bench. The ban was imposed on the strong apprehension of riots and public disorder in the State which might have taken place after the release of the film as the Muslim Organisation found certain scenes in the film to be derogatory and against their common interest. Kamal Hasan had filed a petition in the Madras High Court to lift the ban imposed by the State.
Though the Muslim Organisations at first refused to amicably settle the matter by ways of discussion with the Representatives of the film, the meeting had finally been arranged at the behest of Chief Minister, J Jayalalitha, which finally led to the end of the row after Kamal Hasan agreed for seven sound cuts in his film.
These examples give a dynamic proof of the arbitrary nature of the authorities, various groups or political parties and their die-hard efforts to curb the freedom of speech and expression through films which fell out of their taste. The filmmakers, to exercise one of the most coveted right, have to depend either upon the whims and fancies of those elements or to fight legal battles; still there are many films which never saw the light of the day.
Considering ourselves to be living in the 21st century modern world we are still surrounded by our narrow-mindedness, thus, still living in a small world. It’s a myth that the public has got to taste the freedom in its true sense. The bitter truth lies in the fact that the freedom is molded according to the wishes of the society.
As rightly observed by Ronald Dwarkin in his Anti-Utilitarian Theory, where he talks about two types of preferences:
1) Internal Preference – What one wants to do in his life according to his moral consciousness?
2) External preference –What a group of people want others to do in their life because of their moral preference.
If an artistic expression in the form of film seems to affect the feeling of others it should be stopped from being brought to cinema hall. This shows that moral conviction of others is taken into consideration while protecting one’s freedom, thereby proving that one’s own personal conviction is absolutely irrelevant. Thus, giving more significance to External Preference. This shows that a person’s right is not taken seriously. If the State is not protecting an artist’s interest in expressing himself just because a certain group of society thinks that he should not do such act, then this confirms that the state is not taking his rights seriously.
Dwarkin also mentions the concept of ‘Equal Treatment’, which according to him includes both the expression: ‘Equal treatment’ And ‘Treatment as equals’.
Thus, if an artist is stopped from expressing his feeling in the form of films, simply because a certain group of society’s feeling are considered superior to the feelings of the artist, then this shows that State considers him(the artist) as ‘less intelligent’ than the rest. This shows that the State is not treating him as ‘equal’ by not taking his rights seriously.
Thus, in a country like India which is socialist, secular and democratic, everyone has a right to express their feelings. This right has been also protected by the Constitution of India. But, certain restrictions have been imposed on this Fundamental Right so as to create a balance in the society. But, in availing this right the Court should not only look at the interest of the society at large but also take into consideration the intention of the creator of such thought or expression. If such thought or expression helps in understanding the truth or the current scenario it should not be restricted merely because it is not liked by a certain section of public or public unrest is apprehended.
As rightly quoted by Dr AR Lakshmanan, J in S Rangarajan ((ibid))that While other clauses of Article 19 grant the right to do something, clause (a) grants the ‘freedom of right’ to do something. It leads to the creation of new ideas and knowledge, finding of truth, building tolerance and receptivity and is essential for self rule.