Highlighting another blow to the Freedom of Speech and Expression guaranteed under Article 19 (1) of the Constitution of India, filmmaker AR Murugadoss has been booked for allegedly promoting enmity against the government in his movie “Sarkar”.
BACKGROUND
A complaint was registered against the director on November 7th, as reported. This was based on instigation of violence. The Madras HC had passed an interim order not to arrest the director until November 27. Further, a demand was made by the AIDMK government where an undertaking was sought stating that the film won’t criticize the government policies. The court in its interim order had held that the director has the right to address and highlight social views in films under Article 19 (1)(a). The plea noted as to how he is allowed to promote advocacy of his own ideas in the film. As reported earlier, The AIDMK government had pressurized the makers to remove certain scenes where Murugadoss set certain welfare goodies given by the government on fire, mocking the government’s welfare scheme. Further, a widespread protest was organized by AIDMK supporters against the film for its portrayal of Jayalalitha and raising enmity against the party.
The court had ordered the police on November 29th to inquire into the complaint against the film and recognize if a cognizable offence had taken place.
THE FIR
As reported, the FIR has been filed under sections 153A ( Promotion of enmity on grounds of religion, race, place of birth, residence or doing acts prejudicial to maintenance of harmony), 505 (1)(b) ( Publication or circulation of statement, rumor or report with an intent to cause, fear or alarm to the public, whereby any person may be induced to commit an offence against the State or the public tranquility) and 505 (1) (c) (intent to incite any class or community of persons to commit an offence against any other class or community, punishable with imprisonment up to 3 years, or fine or both) of the Indian Penal Code
It needs to be recognized that these sections fall within the ambit of Article 19 (2) which prescribes for censorship in order to reasonably maintain public order. This provision needs to be narrowly construed, to be applied only when there is a proximate disruption of Public Order and there is reasonable evidence pointing towards so – to effectively maintain freedom of speech and minimalize censoring of expression, allowing for free flow of perspectives. Also, it is important to understand that substituting State with Government/ a single Political party, while interpreting section 505 (1)(b) of the IPC is a wrong approach and can effectively lead to censorship of any criticism drawn towards the governmental tactics. Government is not equal to the State and a criticism to the extent of the government’s actions do not amount to hate speech or enmity against the state. Such an uncalled-for interpretation will lead to a curb on constructive criticism as well as oppositional perspectives on the working of the particular government.
It will be interesting to see how this matter goes ahead.
Update: As reported, due to the FIR filed upon Mr. Murugadoss, he had recently moved on a plea in the High Court to quash the same on grounds of Article 19(1)(a). He claimed in his plea that in a free democracy, criticizing a government policy cannot be deemed to be an offense, and including the same under reasonable restrictions (Article 19(2)) would amount to a tyrannical rule. He further referred to Section 5A of the Cinematograph Act, which specifically states that after the grant of a film certificate, the producers or the distributors will not be liable with respect to any matter contained in the film. As per further reports, the High Court, hearing upon this, has stayed all proceedings in the interim against Murugadoss and has listed the matter six weeks from now.
The order, where the stay has been ordered has come out and the court’s reasoning is a very sound one. It recognizes the freedom to creatively produce content without the fear of censorship and in proper exercise of the freedom of speech and expression provided in Article 19 (1). The court firstly, citing the precedent of Viacom 18 Media Pvt. Ltd. v. UOI, recognized that once a Certificate has been issued by the concerned censoring authority, allowing for the release, then there is a prima facie presumption that the concerned authority has complied with all the guidelines including public order, taking it into proper account while levying the certificate. Going by this precedent, the court upheld the petitioners claim in this respect.
The court has further recognized that there are 3 steps in the “freedom of speech and expression” to understand the ambit of this most basic human right. These are (i) discussion, (ii) advocacy and (iii) incitement. Mere discussion and advocacy of an opinion, however unpopular it is, comes under the ambit of 19 (1) (a). Reasonable restrictions kick in only when it reaches the level of incitement. This is because it flows from the norm of basic human rights that Freedom of speech and expression should be curbed only in very rare pressing situations, involving the interest of the whole community.
The court further went on to recognize the cinematic nature of the portrayal of the petitioner’s opinion on the government policies, in a way to catch the attention of a wider audience. An abstract claim of the exaggerated nature of the same has also been made. The court held that “if every person in disagreement of such opinions starts complaining and lodging FIR’s for the same…, it will sound the death knell to the mother of all liberties namely the Freedom of Speech and Expression”. The court relied on the precedent of S Rangarajan v. P. Jagjivan Ram and ors. [1989 2 SCC 574], to say that complaining and open discussion of criticism is a part of a democratic give and take. Democracy recognizes the need for this open debate and active and intelligent participation of the citizen in affairs, to strengthen its state itself. Popular participation is one of the prominent basic features of a democracy and cannot be done away with via acts of censorship w.r.t opinions against the government in power. The court stated that if FIR’s are filed like this, it will result in a great peril to an artist whose creativity will be stifled.
This order recognizes the core distinction between the State and the Government, it emphasizes upon the importance of the Freedom of Speech and Expression (a core tenet of basic human rights) and the rarity of restricting the same, and finally the problems with abuse of procedure established by law in the actions of filing frivolous FIR’s.
Image source: here
