Free speech verdicts good, logic bad

In their Udta Punjab and Perumal Murugan rulings, the courts missed an opportunity to lay down some fundamental principles
PRASHANT REDDY THIKKAVARAPU explains why they fell short

The last two months have seen two high profile judgments, one each from the Bombay High Court and Madras High Court, striking down heavy-handed censorship by the state and society. The first was the judgment setting aside the numerous cuts imposed by the Central Board of Film Certification (CBFC) as a pre-condition for the release of Bollywood movie Udta Punjab. The second was the judgment setting aside criminal complaints and the “settlement agreement” (midwifed by the government) which forced Perumal Murugan to apologise and withdraw his book for allegedly hurting the sentiments of different castes and social groups in Tamil Nadu, by making certain statements in his award winning novel Mathorubhagan.

Both judgments are undoubtedly good news for all those souls who have become weary of repeated attempts to censor the creative community in this country. In particular, both judgments need to be commended for not only the positive outcome but also the relative speed with which they were delivered, especially the Udta Punjab judgment.

Most movie makers can spend several months or years before getting the CBFC’s orders set aside. Similarly Murugan was lucky to have his case heard by a bench which was clearly progressive in their thoughts despite being faced with some rather risqué material.

Udta Punjab:  Is there a need to hold the Censor Board to higher standards?

Having praised both judgments for the final outcomes and the speed with which they were delivered, it is necessary to also point out the significant drawbacks contained in both of them, especially the unwillingness to hold the executive to higher standards in cases where restrictions are being imposed on free speech.

Let’s begin with the CBFC’s order seeking cuts to Udta Punjab. While some of the cuts sought the deletion of dialogue or visuals showing the movie to be set in Punjab, a majority of the cuts were aimed at bleeping out abusive language. Given that the CBFC, an agency of the executive, is curbing the producer’s fundamental right to free speech, one would expect that the CBFC would be under a duty to provide cogent reasons for its cuts. However, the CBFC actually doesn’t provide a reasoned order explaining the cuts sought by it.

On pages 9 and 10, of the judgment the High Court reproduces the CBFC’s order and amazingly, the CBFC simply mentions the serial number of its guidelines to justify its cuts.  These guidelines are the infamous “Guidelines for Certification of Films for Public Exhibition” issued by the Central Government dated 6th December, 1991 and although these guidelines lack the binding force of the law, they still guide the CBFC in its decision making process.

The guidelines are very general in nature and are also under challenge in a different case. For example, one of the guidelines states “human sensibilities are not offended by vulgarity, obscenity or depravity” while another states “such dual meaning words as obviously cater to baser instincts are not allowed”. To illustrate how the CBFC deploys the guidelines, let’s refer to the first cut where the CBFC states “Delete sign board of Punjab in the beginning” and where it merely states “Section 5(B), 2(xiv)”. The guideline no. 2(xiv) merely states that “the sovereignty and integrity of India is not called in question”. That’s fine but at no point of time does the CBFC explain how a mere Punjab signboard affects the sovereignty and integrity of India. Where are the reasons?

Ideally, when the CBFC is citing these guidelines to censor movies, it should be under an obligation to explain how a particular scene violates the guidelines and the Cinematograph Act. Merely citing the serial number of the guideline without actually explaining how such a guideline justifies a particular cut, doesn’t meet the usual standard of a “speaking order” that is demanded of executive agencies while they are exercising their powers to curb freedoms of citizens.

Yet nowhere in its judgment does the Bombay High Court actually question the lack of a reasoned order by the CBFC. Instead, the judgment focuses on defending the scenes sought to be cut by the CBFC by explaining their context or artistic merit. In my opinion, this is not the correct approach.

There are two levels of examination of a government order: the first is whether reasons have been provided and the second is whether the reasons can be substantiated in law. If the CBFC fails to meet even the first threshold, the order should be vacated right there because a citizen cannot be expected to defend himself from an order which is not providing any reasons – it’s logically an impossible task! The burden of proof should always be on the bureaucrat demanding the curbing of a fundamental right and not the other way around. Therefore High Courts should be demanding that the CBFC actually passes reasoned orders to justify its censorship.

Resurrecting the writer: Perumal Murugan

This case of Perumal Murugan captured national media attention when the author published an obituary for the writer in him after he was forced to apologise and sign a settlement deed agreeing to withdraw his book Mathorubhagan. The book, which was first published in Tamil, narrated the trials and tribulations of a childless couple in a particular district of Tamil Nadu.

The controversial plot of the story revolved around a supposedly local custom where sexual mores were relaxed during a particular festival to allow sexual relations between married women and younger unmarried men of particular castes for one night. In other words, a sexual orgy of sorts was permitted on this one night so that the women could conceive.  

This novel by Murugan was critically acclaimed for the sensitivity with which it dealt with the subject. However, his references to local castes and social groups caused an outrage when his book was translated into English, three years after the Tamil version was first published. The castes shown participating in these sexual orgies were outraged and protested against Murugan - protests which ultimately forced him to seek a transfer to Chennai.

In a tense situation, which involved a bandh and threats of bodily harm, a government bureaucrat in Tircuchengode arranged for a “peace meeting” at which  Murugan came under intense pressure from the mobs outside the bureaucrat’s office. He agreed to a settlement under which he apologised to the social groups offended and also “volunteered” to withdraw copies of the book and edit the parts which had offended them.

The “settlement deed” and subsequent police complaints demanding criminal action against Murugan were first challenged in PILs before the Madras High Court by citizens other than Murugan. He joined the challenge only at a later stage. In a 160 page judgment, the Madras High Court explains its reasons for setting aside the settlement and the police complaint. The problem, however, with the judgment, as even Gautam Bhatia points out in this op-ed, is that it is based on the argument that Murugan’s novel is backed by a long liberal Indian tradition where sex was openly discussed in erotic literature, along with the fact that the novel had a larger social purpose of sensitising people to the problems faced by childless couples.

But should authors be forced to justify their novels on the basis of a larger social purpose? What if the novel had promoted adultery and encouraged liberal sexual relations outside marriage? Would that have changed the outcome of the case because there is no historical literature supporting adultery or because adultery is criminalised in India?

The bigger question, however, is whether such a narration and discussion justifying Murugan’s book was even required. Under the law, only the government can ban books and any such attempts by social groups to ban the book are not recognised under the law. Thus it can be argued that the judgment didn’t even have to examine whether the settlement deed was valid. 

Ideally, the judges should have noted the duress under which the settlement deed was entered into, noted the fact that the ban was not supported by any law and declared the “voluntary withdrawal” of the book as being, in fact, an illegal ban. Why spend six months writing a judgment running into 160 pages? If the government had formally banned the book under the appropriate law, it would have been under pressure to provide cogent reasons and the court would have been better placed to examine the reasons for the ban.

The upside of the judgment, nonetheless, is that it makes it clear that the state has the duty to maintain law and order and the state cannot simply surrender by submitting to the demands of the person threatening law and order.

 

Prashant Reddy Thikkavarapu is a lawyer, currenttly based in Singapore.

 

 

 

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Wednesday, April 19, 2017