Annulling the ‘heckler’s veto’ over films
The states are not only prevented from disabling free expression, but also have a positive role in enabling it
The upcoming film Padmaavat has found itself in the eye of a storm for some months now, having drawn bitter opposition from Rajput groups. Sets have been vandalized. Those involved with the movie have either been physically harmed, or received public threats. It has been the subject matter of litigation in various courts. It went through rigorous scrutiny at the hands of the Central Board of Film Certification (CBFC), which constituted an expert committee, and finally advised certain alterations, including a suggestion to change the name from Padmavati to Padmaavat, in order to emphasize that the film was inspired by the epic poem of the same name penned by Malik Muhammad Jayasi (and, consequently, distance itself from claims that it seeks to distort historical events about the life of Rani Padmavati). However, even after receiving a U/A certificate from the CBFC, the release has been marred by efforts by certain state governments to ban the exhibition of the movie.
Last Thursday, however, the Supreme Court stepped in to protect creative expression by passing an interim order lifting the ban in Gujarat and Rajasthan (where executive orders were in place) and restraining other states from imposing similar prohibitions.
The government orders banning the film had drawn on the identical, boilerplate provisions under state statutes which allow a state government to “suspend” the exhibition of a film if it is of the opinion “that any film which is being publicly exhibited is likely to cause breach of the peace” or a “breach of the public order”. Fortunately, the court had dealt with an almost identical case in 2011 (Prakash Jha Productions v. Union of India), when Uttar Pradesh had suspended the screening of the movie Aarakshan under a similar statutory framework. The Supreme Court, in that case, made two important observations while lifting the suspension, which apply with equal force to the Padmaavat case.
First, the court emphasized the fact that such orders of suspension could only be passed in respect of a film “being publicly exhibited”, and could not be used to stop a film that was yet to be exhibited. What the court essentially did was demonstrate that the state had acted beyond the confines of its own enacted laws, and this has now been applied to invalidate the ban on the unreleased Padmaavat as well.
The second, and perhaps most significant, portion of the Aarakshan judgement was its emphasis on the idea that states had a positive duty to maintain law and order. This idea has been a part of our legal culture since 1989 when the Supreme Court, while dealing with a case involving the Tamil film Ore Oru Gramathile, had posed a poignant question: “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 expression were to be curbed because persons or groups threatened violence, it would amount to “a surrender to blackmail and intimidation”. Our Supreme Court has, therefore, fleshed out freedom of speech, which is ordinarily a negative restraint on government muzzling, by imposing on individual states the positive “obligatory duty” to protect freedom of speech from rowdy mobs. This means that states are not only prevented from disabling free expression, but also have a positive role in enabling it. Obviously, this also means that states cannot allow for a “heckler’s veto” and point to the likelihood of mob violence to justify censorship. This was reiterated by the court on Tuesday, when Madhya Pradesh, Rajasthan and the Karni Sena sought modification of the order lifting the ban
In the Padmaavat case, the Supreme Court has, to its credit, extended this duty to “providing police protection to the persons who are involved in the film/in the exhibition of the film and the audience watching the film, whenever sought for or necessary”. This may prove to be crucial, since even the lawyers representing the production company and the director have reportedly been threatened.
The Supreme Court’s interim order in the Padmaavat case also hints at another interesting concept. The court stated: “Once the parliamentary legislation confers the responsibility and the power on a statutory board and the board grants certification, non-exhibition of the film by the states would be contrary to the statutory provisions and infringe the fundamental right of the petitioners.” This points to the idea that citizens can seek to protect fundamental rights by relying on the federal structure of our Union. Under our Constitution, Parliament’s power to legislate on “sanctioning of cinematograph films for exhibition” trumps the power of states to regulate individual “cinemas”. According to the court, Parliament has put a framework in place by enacting the Cinematograph Act, 1952 and creating the CBFC. Once a film receives a certificate under this regime from the CBFC that is explicitly “valid throughout India”, states cannot suddenly step in as superior censors, and second-guess the CBFC, a creature of Parliament. The design of our federal structure, therefore, ties down the states and limits their power to interfere with the screening of films, a structural feature that enhances the Constitution’s free speech protections.
While it remains to be seen whether states actually fulfil their duties to quell unruly mobs, it can definitely be said that the Supreme Court’s order is a much needed ray of sunshine at a time when dark clouds hang over our highest constitutional court.
Karan Lahiri is an advocate practising at the Supreme Court.
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