4 Oct 2009

Citizens not to suffer for inability of Government: Bombay High Court

That Government is not able to carry out its duties is no reason for a citizen to be debarred from exercising is fundamental rights, declared the Bombay High Court. Made in the wake of recent controversies in Maharashtra wherein a number of people from outside the State, especially from Bihar, were subjected to physical abuse and torture by the localites, the much-hyped film 'Deshdrohi" was the subject-matter of decision of the Bombay High Court.

Even though granted a U Certificate by the Film Certificate Appellate Tribunal, the Principal Secretary of the Home Department, Government of Maharashtra, noting that "there are strong reasons to believe that if exhibited the film will in all likelihood inflame passions and incite the people to violence leading to disturbance of public order", ordered "that the film 'Deshdrohi' produced by M/s. OK International which is slated for release on the 14th November, 2008 should be suspended from exhibition ... in the State of Maharashtra". This order was challenged before the High Court.

The Government, in its defence before the High Court, went on record stating that "there is a possibility of clashes between communities and the information given by intelligence officers about the general impression of the various sections of public who were likely to see the movie who felt that the same should not be exhibited as it is likely to increase the feeling of ill will amongst Maharashtrians and North Indians". A departmental letter was also produced to the Court to the effect that "keeping in view the serious incidents and as evident now in the happenings in the city of Mumbai in the month of October 2008 relating to problems in Railway Examinations, it was stated that political leaders are likely to take advantage and create problem if the picture is permitted to be exhibited". 

Another letter was shown to the High Court, written by the Additional Commissioner of Police (Special Branch), Mumbai to the Director General of Police wherein it was stated "that the Police Officer had seen the movie and referred to the events and occurences which followed as a result of the activities of Shri Raj Thackeray, Leader of Maharashtra Nav Nirman Sena in relation to examination of the Railway Board conducted in the city of Mumbai." "Referring to that document the reason stated for recommending suspension of exhibition of the picture is that some scenes in the picture are likely to inflame the situation between the communities. It is shown in the picture that a Maharashtrian girl is involved with a North Indian boy which is likely to cause ill feeling amongst Maharashtrian women and some of the characters in the picture bear resemblance to political leaders in the State of Maharashtra and the language used in certain scenes of the picture is improper."

The High Court was, however, no impressed. Taking stern note of the casual manner in which the State authorities had acted, the Chief Justice of the High Court noted;

The constitutional rights available to the Petitioner under Article 19(1)(a) cannot be circumscribed or adversely affected in such a casual manner. The fundamental rights are in certain cases subject to certain reasonable restrictions. The State has the liberty to pass executive orders on the strength of its statutory power, but certainly not in violation to constitutional rights available to the citizens of the country. Reverting back to the material produced before us, stand of the State is not consistent. In one place it is indicated that the picture depicts Maharashtrians in poor light and the North Indians as 'Bhaiyyas' in a derogatory manner and is likely to give rise to clashes. Other stand taken is that the political leaders are likely to exploit the situation, in view of the happenings in the month of October 2008 in the city of Mumbai. The order dated 12th November, 2008 was passed by the authorities without even viewing the picture. This itself shows the casual manner in which the authorities had acted.
Merely because few people will come together and raise a protest and/or that a political leader is likely to abuse or misuse the exhibition of the picture per se would not be a ground which would fall within the ambit and scope of the expression 'public order'. To control law and order is the primary obligation of the State and the State must essentially perform its duties with due adherence to law. For the purposes of its convenience or its inability to handle such situation, the State cannot transgress and infringe the fundamental rights and protection of the citizen. To carry out business and to have freedom of speech and expression both are protective rights and cannot be infringed upon by the State with such a casual approach.
For the reasons aforestated it is clear that it is a colourable exercise of power which smacks of arbitrariness. The action of the State is hardly supported by any record much less a proper reasoning and appropriate records to back up this decision. All that appears to us is that the State has taken a decision to suspend the exhibition of this picture and wishes to adhere to that decision irrespective of its consequences and being violative of constitutional protections available to the Petitioner.
Justice Dr. D.Y. Chandrachud, agreeing with the view, give further account of how the action of the State Government was not in the proper democratic perspective. He noted;
Free speech and expression lies at the core of the values which sustain democracy. Governance in civil society must thrive by the expression of dissent as much as democracy thrives by the expression of popular support. The right to question and to criticize is intrinsic to good governance. Those who are governed must have a sense of participation in the process of governance just as those who govern must have the feel of the ground and their ears to reality. Governing and being governed are inseparable facets of constitutional governance. A free flow of ideas, information and knowledge is critical to good governance. Good governance demands not just rule by law but rule of the good law and enforcement of law upon principles which are consistent with a constitutional order. Citizens are entitled to criticize and to critique even if such criticism is trenchant. Suppress criticism and you suppress democracy. Suppress the free flow of information, ideas and knowledge and you create a society which is repressed and inhibited. Worse still, a lack of accountability or transparency are liable to result when citizens are gagged. One does not need to travel far back in history to find examples where the muting of dissent has produced the worst violations of human rights.
Free speech is of intrinsic value in a democracy. Speech in all its forms is an expression of human personality. To speak is to give creative expression to ideas, thoughts and perceptions. Anguish and appreciation, criticism and acceptance, speech and silence are all forms of symbolism which nature ordains in the evolution of the human ethos. Speech is the quintessence of human life. Article 19(1)a is a constitutional embodiment of a right which inhers in nature – a right which is inseparable from human existence. But, apart from its intrinsic importance, free speech is of instrumental importance. The instrumental value of the right in a democratic order is that it recognizes the importance of a free expression of ideas in the attainment of democratic values. The intrinsic and the instrumental elements find recognition in the constitutional ethos. The intrinsic value of free speech is a constitutional recognition of a right which inhers in nature, as a reflection of the essence of human personality. The instrumental value of free speech recognizes that the right is a means to an end – illustrative of those ends is the participation of citizens in the process of governance, the expression of dissent, governance by principles of good administration and rule by good law, and the peaceful persuasion in a democracy of every member of society in determining who shall govern. Speech in a democracy is a peaceful, but powerfulinstrument of change. The power of speech is what distinguishes peaceful from violent societies. Democracy is founded on the assumption that free speech is not a threat to its existence but furthers its cause. On the contrary, intolerance towards speech is a characteristic of violent societies. Ours is not intended by the framers of the Constitution to be a society where speech will be repressed. Though we have increasingly become vulnerable to violence inflicted from outside the nation, as the recent events would show, it is important in times of crisis to reaffirm, rather than revise, the commitment to our core constitutional values.
Clearly sending the message to political parties spreading the hatred on the of regional grounds, the High Court noted;
The politics of hate and intolerance is an anathema to our constitutional order. The free movement of persons throughout the territory of India is one of the fundamental freedoms recognized by Article 19(1) (d) of the Constitution. Likewise, the right to reside and settle in any part of the territory of India is protected by Article 19(1) (c). Article 19(1) (g) guarantees to every person the right to practice any profession or to carry on any occupation, trade or business. That right can be exercised in any part of the territory of India. ... Practicing hate or intolerance towards any segment of society is fundamentally contrary to a constitutional order in which it is the fundamental duty of every citizen – under Article 51A“to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional on sectional diversities”. ... The realities of life are harsh and the guarantee of free speech does not require writers and directors to present a sanitized view of life. The heart of a film, as a medium of expression, lies in its ability to move the viewer by the strength of the depiction. How sensitive should be the depiction or how crude are not matters where the law intervenes so long as the limits of a valid piece of legislation are not trenched.

Also criticizing the stand of the Government that political violence may be erupted, the High Court made it clear that the Government could not shy away from its responsibility of maintain law and order in the following terms;

In this case, the State Government informs us on affidavit that political leaders and political parties may unfairly use the situation that arose out of the politics that was preached by a particular political party. The State is not powerless if any segment of society – be it a political party, its protagonists or otherwise – preaches hate or intolerance within a State to those who originated elsewhere. Maharashtra has a secular tradition which has witnessed a peaceful coexistence of diverse religious and linguistic communities and the aberrations to the norm have been isolated. The State is a microcosm of the nation in every sense and every segment of Indian society has contributed to the development of Maharashtra in industry, education, professions and trades, amongst others. The duty to govern in accordance with the Constitution involves a non negotiable obligation to tackle all those who preach hatred and violence to persons perceived to be from outside the State. The State Government cannot explain away its inability or unwillingness to do so by clamping down on the fundamental freedoms of citizens, like the Petitioner, who focus public attention to the issue. Films do not have to be fictional to be protected nor must they run the risk of prohibition, if the reality which they portray is stark.
... The suspension of the exhibition of the film was ill conceived. The State Government ought to have firmly dealt with those who preach hatred and instigate violence against citizens of the country for whom home and hearth are Maharashtra. It is ironical that what was done was to suppress the creative expression of an idea and of the lawful anguish of a citizen expressed on screen. The order of suspension is unsustainable.
Have a look at the decision of the Bombay High Court on a bare reading of which, it is clear that the High Court of Bombay has come against the inaction on the part of the State Government in meeting out strictly the whims of political parties to arouse public tension and violate law and order of the state. It is, however, ironical to note that despite this firm assurance of the High Court to be the harbinger of democratic values and protect freedom of speech and expression to the logical reason, recent news-events showed a film producer seeking political solace against similar proposed agitations for use of term 'Bombay' in the film instead of 'Mumbai' instead of seeing through the drama head-on. In fact is is also ironical that while the name of the city has been changed from Bombay to Mumbai and political parties brag that the name Bombay be banned and only Mumbai be uttered, the High Court still continues with the name 'High Court of Bombay' and no political power has the requisite will to face the wrath of the High Court by seeking it to be renamed.

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