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SC on freedom of expression

Kashmir Times. Dated: 1/19/2018 11:05:25 PM

All states have the dual responsibility to protect free speech and maintain law and order situation

The Supreme Court message on Thursday to the four states in the country that they cannot choose between protecting 'freedom of expression' and preserving law and order situation is very clear. The core of message from the Supreme Court is amply clear that they have the twin duty to do both. The top court order staying the notifications and decisions of four states to put curbs on screening of film 'Padmaavat' with direction to ensure maintenance of law and order during its exhibition is binding. It is unfortunate that two states Rajasthan and Gujarat have already notified a ban on the screening of the film and two others Haryana and Madhya Pradesh have indicated that they also follow the suit. All these are BJP-ruled states, where the opposition to the film's release and its storyline has been blamed on the fringe elements of the right wing parties. At the first instance, the right wing groups encouraged the protests against the film and its contents without evening seeing what was there in it and then blamed the protests on fringe elements, which were described as having nothing to do with the ruling party. What troubled the Supreme Court was that creative freedom could be so easily prohibited by the state citing a possible risk to public order. It needs no reiteration that summary prohibitions on films or writings violate the freedom of speech and expression enshrined in Article 19(1)(a) of the Indian Constitution. Such a right is subject to reasonable restrictions on some grounds, including public order if it they are considered genuine in a civilised democratic setup. However, the use of the threat of violence and other forms of intimidation cannot give the state an oblique reason to stifle fundamental freedoms by voicing apprehensions and invoking its powers to maintain peace. In the past, the Supreme Court has made it clear that it cannot give anyone a virtual veto over a certificate issued by the Central Board of Film Certification, a statutory body, by threatening violence. The court has reiterated that the grant of a certificate by the CBFC denudes the state of the power to prevent the exhibition of a film. This has been clarified time and again by the court that buckling under the pressure of fringe elements does not go with the democratic norms in the country.
The protests in certain pockets of these states before the release of the film do not justify the actions of the state governments to put restrictions on its screening. Even the attacks by some elements on the crew, cast and sets of the films during its filming last year also appear to be guided by a narrow thought process of the right wing groups and strong caste bias of some sections of the society. The interim SC order, which paves the way for Padmaavat to be released on January 25 next, is in line with a series of judicial decisions. In a case titled 'S. Rangarajan vs P. Jagjivan Ram (1989)', the Supreme Court said the state cannot plead its inability to handle the problem of a hostile audience as that "would be tantamount to negation of the rule of law and a clear surrender to blackmail and intimidation." In another reference 'Prakash Jha Productions vs Union of India (2011)', the SC reiterated that it is the state's responsibility to maintain law and order. In the present controversy, the film producers agreed to change its name from 'Padmavati' to 'Padmaavat'. The new title suggests it is based on a medieval poem on a legendary Rajput queen and not any historical personality. They also agreed to several cuts suggested by a special panel formed by the CBFC. If even after these concessions the protestors are allowed to obtain a prohibition on its screening, it would undoubtedly amount to a base surrender to blackmail and intimidation. It would be a taint on the country's record of protecting free speech if a film with no claim to historical accuracy is banned on the mere pretext that some people, who have not even seen it, find it offensive to their sensibilities. The Supreme Court has clearly indicated where the constitutional duty of state governments lies when it comes to protecting 'freedom of speech'. It is now up to these states to live up to that expectation of the top court and maintain law and order.