Free Speech And Pending Case

Source: The Hitavada      Date: 12 Mar 2018 11:40:14











In the opinion of the court, the moment the right to freedom of speech and expression is atrophied, not only the right but also the person having the right gets into a semi-coma. At the same time, the said right is not absolute but any restriction imposed thereon has to be extremely narrow and within reasonable parameters.
The petitioner-Society in this case filed the writ petition under Article 32 of the Constitution of India, seeking appropriate directions for prohibiting producer, director of the film ‘Aiyaari’ to release/screen/publish it with direct or indirect references to the petitioner-Society’s land/building/membership, for such an action is bound to affect the Right to Life under Articles 14 and 21 of the Constitution.

The petitioner has also prayed that the said respondents should be commanded to delete all those parts in the ensuing feature film which has direct or indirect references to the Society in question.It is not in dispute that the said film has already been given the requisite certificate by the CBFC. under the Cinematograph Act, 1952 and the said Board has also taken the suggestions from the competent authorities of the Army as a measure of caution. There can be no shadow of doubt that the Censor Bord can grant a certificate and in the said decision making process, it can also consult the persons who can assist it to arrive at the condign (well deserved) conclusion.

In this case, the court has observed that it is obligated to think that the grant of certificate by the Central Board of Film Certification –CBFC – after consulting the Army authorities, should dispel any apprehension of the members of the society.Referring to its decision of the case – Nachiketa Walhekar v.Central Board of Film Certification and Another-(2018) 1 SCC 778, the court has reminded that it has stated therein that a film or a drama or a novel or a book is a creation of art and that an artist has his own freedom to express himself in a manner which is not prohibited in law. Further, prohibitions should not by implication crucify the rights of expressive mind.

The court has also noted that in human history, there have been many authors who expressed their thoughts in their own words, phrases, expressions and also created whimsical characters which no ordinary man would conceive of.Further, according to the court, a thought provoking film should never mean that it has to be didactic or in any way puritanical, rather it can be expressive and provoking the conscious or the subconscious thoughts of the viewer and if there has to be any limitation on it, such a limitation has to be as per the prescribed law.

Elaborating the same, the court has added that there can be multitudinous modes, manners and methods to express a concept. One may choose the mode of silence to be visually eloquent and another may use the method of semi-melodramatic approach that will have impact. It is the individual thought and approach which cannot be curbed.At this stage, the court took note of the petitioner’s counsel ‘s submission that though the freedom of speech and expression should not be curtailed, yet this court, on certain occasions, has protected the image and reputation of the individuals by giving priority to the image of the person in society.

In the opinion of the apex court, a ‘poetic license’ can have individual features, deviate from norms, or other collective characteristics or it may have a linguistic freedom wider than what a syntax sentence would encompass. The court also noted with that the controversy travelled to this court as the trial court had framed charges under section 292 IPC against the appellants and the HC had declined to interfere. In the context of that case, the court’s observation was that the language employed in the poem, “I met Gandhi” was prima facie obscene because of the language relating to Mahatma Gandhi,, the Father of the Nation.

Though the Court quoted some stanzas of the poem, yet it thought it wise not to reproduce the said stanzas in entirety because of the words used.
According to the apex court the nature of this case, compels it to recapitulate that the human history is replete with struggles to get freedom, be it physical or mental or spiritual. The creativity of a person impels him not to be tied down or chained to the established ideals or get enslaved to the past virtues and choose to walk on the trodden path. He aspires to rejoice with the new ideas and exerts himself to achieve the complete fruition. That is the determination for moving from being to becoming, from existence to belonging and from ordinary assumption to sublime conception. The creative intelligence kicks his thinking process to live without a fixed target but toying with many a target.

Referring to last plank of submission of the petitioner’s counsel that the Supreme Court may direct the producer and director of the film ‘Aiyaary’ to add a disclaimer to it, so that no member of the society would ultimately be affected by the film. According to the court, on a first blush, this suggestion may seem quite attractive but on a slightly further scrutiny, if it allows the court itself to say so, the suggestion has to melt into oblivion. Whether there is necessity of ‘disclaimer’ or not has to be decided by the Censor Board which is the statutory authority that grants the certificate.

In fact, the court has stated, that when a disclaimer is sought to be added, the principle of natural justice is also attracted. To elaborate, the producer or director is to be afforded an opportunity of hearing. The court should not add any disclaimer for the asking. Addition of a disclaimer is a different concept altogether. It is within the domain of the authority to grant certificate and to ask the director to add a disclaimer in the beginning of the movie to avoid any kind of infraction of guidelines. Though the suggestion was made in right earnest by the concerned counsel, yet the court found that not acceptable. Observing that the writ petition lacks merit, the court dismissed it.