Freedom of Speech Sacrosanct: Supreme Court Clears Kejriwal Documentary

New Delhi: A three-judge bench of the Supreme Court, headed by Chief Justice Dipak Misra, dismissed a plea on Friday, November 16,  seeking a stay on the release of a documentary on Delhi Chief minister Arvind Kejriwal: “An Insignificant Man”.

The petition was filed by Nachiketa Walhekar, former Bharatiya Janata Party (BJP) General Secretary from Tehsil Parner in Ahmadnagar district of Maharashtra, who was accused of throwing black ink at Kejriwal at an Aam Aadmi Party press conference in New Delhi on November 18, 2013.

Walhekar contended that a video clip of the incident has been used in the documentary, which depicts him as a convict and Kejriwal as a hero, stating that the trial in the matter was still pending.

Walhekar believes that his portrayal as being guilty of the offence causes damage to his reputation.

The counsel for the petitioner argued that the depiction of the petitioner in such light is a violation of his rights as guaranteed under Article 14 and 21 of the Constitution.

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In consideration of the pending trial, the petitioner sought direction from the apex Court to the Central Board of Film Certification (CBFC) to stay the release of the film until the removal of the said video clipping or insertion of a disclaimer stating that the incident of the offence by the petitioner is subjudice.

The bench dismissed the petition and refused to grant the relief prayed for by the petitioner mentioning that, “… freedom of speech and expression is sacrosanct and the said right should not be ordinarily interfered with.”

The bench also stated that, “… a film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind.”

“Courts should be extremely slow in passing restraint orders” as there cannot be curbs on the freedom of speech and expression, it added.

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In a poetic order uploaded to the SC website, the bench also stated, “Human history records that there are many authors who express their thoughts according to the choice of their words, phrases and expressions and also create characters who may look absolutely different than an ordinary man would conceive of.”

Amidst the agitations, protests and threats demanding ban on the release of Sanjay Leela Bhansali’s film Padmavati, the judgement came as a boost to the artist’s right to Freedom of Speech and Expression.

Coincidentally, the same SC bench admitted a fresh plea seeking ban on the release of the film Padmavati, but refused a request for urgent listing of the petition . The film, starring Deepika Padukone, Ranveer Singh and Shahid kapoor, has been embroiled in controversy.

Organisations representing the Rajput community have staged various protests against the release of Padmavati, citing hurting of religious sentiments via “character assassination of Rani Padmavati” and “distortion of historical facts.”

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Films have been banned in India since 1959, when Neel Akasher Neeche, a Bengali film by Mrinal Sen, was the first film to be banned by the Government.

Although Article 19 (1) (a) of the Constitution of India guarantees the fundamental right of freedom of speech and expression, Article 19 (2) does provide for conditions in which the State is permitted to impose reasonable restrictions.

The grounds listed for permitting such reasonable restrictions are – security of state, sovereignty and integrity of India, friendly relationship with foreign countries, public order, decency and morality, contempt of court and defamation.

Films like Deepa Mehta’s Water (2005) and BBC’s documentary India’s Daughter (2015) were banned for the reason that they depicted the country in a poor light.

India’s Daughter was banned as it recorded certain views of the rapists of the Delhi gang rape victim “Nirbhaya“, which bring forth certain issues in the Indian society that do not cater well to the image of the country. Water chronicles issues of ostracism and misogyny that are practical realities which need to be emphasised and highlighted.

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Certain more encouraging judgements have been passed by the apex Court encouraging the freedom of speech and expression in motion pictures, such as Ramesh v Union of India [(1988) 1 SCC 668].

This petition sought to ban the airing of the serial Tamas, where it was argued that its telecast would re-ignite painful memories of partition of the country and would lead to problems of public order.

The Supreme Court opined that, “The effect of exhibition of a film or of reading a book has to be judged from the standards of reasonable, strong-minded, firm and courageous men or as has been said in English Law ‘the man on the top of Clapham omnibus’, and not those of weak and vacillating mind, nor of those who scent danger in every hostile point of view.”

In the case of Directorate General of Doordarshan and Ors. v. Anand Patwardhan and Anr. [(2006) 8 SCC 433], allowing the petition against refusal by Doordarshan to telecast the documentary film Father, Son and Holy War,  the Supreme Court observed, “In our opinion, the respondent has a right to convey his perception on the oppression of women, flawed understanding of manhood and evils of communal violence through the documentary film produced by him… The film in its entirety has a serious message to convey and is relevant in the present context. Doordarshan being a State controlled agency funded by public funds could not have denied access to screen the respondent’s documentary except on specified valid grounds.”

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Although the judgements mentioned above and a few others in favour of film-makers and artists are a ray of hope, there are a plethora of cases where films were banned from screening either in specific states or the entire country.

These include Kissa Kursi Ka (1977), Aandhi (1975), Parzania (2005), Firaaq (2008), Final Solution (2004), Black Friday (2004), Amu (2005), The Da Vinci Code (2006), Sins (2005), Kama Sutra – A Tale of Love (1996), and Gandu (2010).

Many more have been subjected to heavy censorship and editing as a condition for their release.

The reasonable restrictions laid down in Article 19 (2) are essential to an extent, but the scenario of its application to restrict artistic freedom and integrity can clearly be seen as colourable use of power.

Prime examples of such overreach are the banning of Kissa Kursi Ka, a spoof film on former Prime Minister Indira Gandhi and her son Sanjay Gandhi, and the film Aandhi, which allegedly depicted the life of Indira Gandhi.

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Applying Friday’s SC judgement in the petition to ban Padmavati, it is likely that the Court may be of the view that these are demands of unreasonable restrictions at the behest of fringe groups, which deprive the artists from expressing their creativity and the majority public from making a decision for themselves of enjoying art and drama.




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The ID Staff

www.IndusDictum.com and www.TheBorwankarReport.com

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