While overruling the objections of the Central Government regarding exhibition of documentaries ‘March, March, March’ and ‘The Unbearable Lightness of Being’, the Kerala High Court observed that mere disturbance of law and order was not a ground to curtail freedom guaranteed to film maker under Article 19(1)(a) of the Constitution of India. ‘March, March, March’ dealt with student agitations in Jawaharlal Nehru University, and ‘The Unbearable Lightness of Being’ dealt with agitations in Hyderabad Central University (HCU) in the wake of the suicidal death of scholar Rohit Vemula.
The said documentaries, as well as another documentary ‘In The Shade Of Fallen Chinar’, were selected for exhibition in the International Documentary and Short Film Festival organised by the Kerala State Chalachitra Academy, an instrumentality of the Government of Kerala. Since the documentaries had not obtained certification under the Cinematograph Act, the Chalachitra Academy sought for exemption from the Central Government as per Section 9 of the Act. However, the exemption was denied by the Central Government. Regarding ‘In the Shade of Fallen Chinar’, the objection was that the film on Kashmir issues was likely to be exploited by anti-national elements for creating avoidable situations. As regards the remaining two films, the objection was that they related to agitations of students in the recent past which adversely affected the law and order in some parts of the country.
Challenging the refusal to grant exemption, the Kerala State Chalachitra Academy filed writ petition in the high court. The government relied on Office Memorandum dated 17.01.2006 which provided guidelines for granting exemption from certification under the Cinematograph Act for public exhibition of films. The guidelines clarified that the Ministry of Information and Broadcasting will have the power to reject, in exceptional cases, for reasons to be recorded in writing, the request for exemption of any film/films if, in its opinion, it would impinge on the security or integrity of the country or affect ‘law and order’ or affect relations with other countries.
The court held that “law and order” mentioned in the guidelines is not the same as “public order” referred in Article 19(2) of the Constitution of India. While there could be reasonable restrictions for maintaining public order, restrictions on artistic expression cannot be imposed on the ground that it could disrupt ‘law and order’. It was observed that a mere disturbance of law and order leading to disorder is not one which affects public order . It was further stated that though contravention of law would always affect public order, but before it can be said to affect public order, it must affect the community or the public at large. Relying on S Rangarajan vs P Jagjivan Ram and others [(1989)2 SCC 574], it was stated that it is the duty of the State to protect the fundamental right to freedom of speech and expression and the State cannot plead its inability to handle the hostile audience. Therefore, the court read down ‘law and order’ in the guidelines as ‘public order’.
Examining the merits of objection in the light of aforestated principles, the court accepted the objection with regard to the documentary “In the shade of fallen Chinar’. The court noted that the film contained unfiltered opinions of students in Kashmir valley, and hence observed that film handles sensitive issues and the stand taken by the Central Government that the screening of the film is likely to be exploited by anti-national elements for creating avoidable situations, cannot not be said to be unfounded.
Regarding the other two documentaries, the court held that the objection of the government that they could create law and order situation was not sustainable. It was observed that disturbance of law and order can never be a ground at all to curtail the freedom guaranteed to the film-makers under Article 19(1)(a) of the Constitution. The further objection of the Central Government regarding ‘March,March, March’ was that the film indulged in debate of the topic ‘national-antinational’. This objection was also found to be irrelevant and unsustainable. In this regard it was observed as follows: “It is necessary to mention in this context that our Constitution guarantees not only social and economic justice, but also political justice. The freedom of speech and expression guaranteed by the Constitution would therefore, include the right to express one's political views as well. Film is a legitimate and effective medium in which issues of general concern can be treated, subject of course to the reasonable restrictions on grounds set out under Article 19 (2) of the Constitution. The said right includes the right to criticize the policies of the Governments in power also.” It was emphasised that such expression of opinion cannot be suppressed on account of threat of demonstration or violence.
The Kerala High Court seems to be always in the forefront for granting protection to artists and film-makers, by giving liberal application to constitutional provisions. Last week, the Kerala High Court had directed the screening of film ‘S Durga’ in the International Film Festival of India, negating the objections of Central Government. Though the Union Ministry appealed against the decision, the division bench refused to stay the direction to screen the movie. On an earlier occasion, the court had also come to the rescue of film-maker Jayan Cherian observing that mere reference of homosexuality or nudity did not amount to obscenity, and had directed the CBFC to review his film ‘Ka Bodyscapes’. The refusal of the CBFC to follow the court’s directions resulted in contempt proceedings initiated against the board, in which the brazenness of the CBFC was subjected to harsh criticism by the court.