India’s state governments misuse the law to censor films

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Demonstrators burn an effigy depicting film director Sanjay Leela Bhansali during a protest, organized by members of Bharat Kshatriya Samaj, against the release of Bollywood movie "Padmavati" in Kolkata, India, November 22, 2017. Photo: Reuters Rupak De Chowdhuri    NO RESALES. NO ARCHIVES

Censorship of films by frenzied mobs and a recalcitrant government sparked off by the imminent release of two films – Sanal Kumar Sasidharan’s S. Durga and Sanjay Leela Bhansali’s Padmavati.

Despite the Kerala’s High Court ruling directing the central government to do so, it has refused to screen S. Durga at the ongoing International Film Festival of India, held in the coastal state of Goa every year. Padmavati‘s fate is in a more precarious position – a little-known outfit – Karni Sena – has threatened its lead actor Deepika Padukone with beheading and vandalized the sets after assaulting the director. As a result, the governments of five of India’s most populous states- Uttar Pradesh, Rajasthan, Punjab, Gujarat and Madhya Pradesh, all ruled by the Bharatiya Janta Party (BJP) barring Punjab – have said that they will not allow the film to be screened in their territories. All of them have stated on record that because the film is an affront to the pride and prestige of the powerful Rajput caste community, it could lead to a breakdown of law and order. “Law and order” is a state subject under Indian Constitution, and age-old caste sensibilities continue to dominate the political landscape.

However, the actions of the central and state governments are in defiance of a number of rulings of India’s Supreme Court, which has repeatedly held that a film can be censored only if its screenings pose a threat to “public order”. The apex court has also clarified that this “public order” is distinct from “law and order”.

The freedom of expression is a fundamental right in India, and can be curtailed only on one of the grounds of “reasonable restrictions” enumerated in Article 19(2) of the Constitution, in which “public order” features prominently. Years ago, in 1965, in the Ram Manohar Lohia case, a five-judge bench of the Supreme Court considered the scope and ambit of the term ‘public order”, and held that the community or the public at large have to be affected, and only then can it be said that a particular action jeopardizes public order – it “embraces more of the community than ‘law and order’”.

The Arun Ghosh case is one instance where the where the Supreme Court provided a detailed and succinct explanation of the term, along with numerous examples. The emphasis therein was again on a wide spectrum of society as a whole being affected, as opposed to a handful of individuals. It was held that “law and order” was narrower in scope than “public order”, and these two should not be used or interpreted interchangeably. The two terms are in contradistinction to each other and the difference between them is the question of degree and extent of the reach of the act on society. A particular action might breach the “law and order” situation, for instance, some disgruntled and agitated people going on a vandalizing spree. But would it necessarily affect society or a particular community as a whole? The answer is clearly in the negative according to the Supreme Court.

State’s Positive Duty

When there is public outrage against the exhibition of creative works, the Supreme Court has put the onus of protecting the freedom of expression squarely on the state and its law enforcement authorities.
A bench of three judges held in the S. Rangarajan case  in 1989 and a bench of two judges in the K.M. Shankarappa case  held that the state would be abdicating its duty if it surrenders to the blackmail of various protesting groups ; it is incumbent on the state to use its mechanism for protecting law and order by taking appropriate steps.

Documentary-maker Rakesh Sharma, whose 2003 film ‘Final Solution‘ on the Gujarat carnage was not allowed to be screened despite being cleared by India’s censor board, told Asia Times that he was “sharply opposed to various fringe groups wielding the censor’s truncheon and muzzling the freedom of expression”. The government and police should take the protestors into preventive custody and allow the films to be screened, he said.

Unfortunately, political expediency in a polarized landscape has ensured the state siding with fringe groups threatening violence openly, rather than Constitutional norms.

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