Relook needed at freedom of speech

Mobs inflamed by the Karni Sena and the Rajput Samaj in BJP-ruled Rajasthan and in Gujarat, Madhya Pradesh and Bihar have tried to stymie the judgment of the Supreme Court upholding the right to free speech and expression for film-makers. But they may not succeed because the Supreme Court has declared that free speech is sacrosanct. Never mind the women who threaten to commit mass jauhar if “Padmaavat” is screened. They only succeed in making the film a box-office success.

This is because intolerance and freedom of speech cannot co-exist. Sectarianism and intolerance is camouflaged as nationalism which evokes pride in every Indian. Viacom 18, the producers of the film, “Padmaavat” were left with no choice but to challenge the ban on its screening by the four BJP states across the country. Sanjay Leela Bhansali emerged victorious in his fight to educate India about their right to watch films, read books, enjoy poetry and drama of their choice whether based on historical reality or not.

Indirectly alluding to those who support the extremist Karni Sena and other right wing groups, the CJI said, “surely those in high public offices should refrain from making comments…prejudging… as it violates the rule of law and prejudices the decision of the Central Board of Film Certification”

Again, whether it has distortions or not, a film is not a documentary but is made with some amount of exaggeration because the exact ethos of a bygone era cannot be captured on screen, using contemporary costumes and technology. The words “poetic licence” is the exact opposite of that understood in legal parlance because in the realm of film-making or poetry, the film-maker has to use his own imagination while the poet is allowed free reign to flights of fancy and conjecture to “depart from reality, fly away from grammar, walk in glory by not following systematic metres or even coin words at his own will,” declared Chief Justice of India Dipak Misra in his 13-page judgment.

Just as a judgment is an opinion based on hard facts, so also is a film an imaginative replication of a historical event which is true. But while the judgment is binding upon all lower courts, people are not obligated to watch a film which may distort historical reality. The three-judge bench of CJI Dipak Misra, A M Khanwilkar and D Y Chandrachud declared that freedom of speech and expression was sacrosanct and more so when the Central Board of Film Certification had granted a certificate to screen the film throughout the country.

Again reiterating the well-known position, the three judges quoted Benjamin Cardozo to reiterate that freedom of speech and expression was not absolute but the fetters had to be reasonable as to come within the umbrella of Article 19 (2) which lays down eight grounds for curtailing creativity and a free press, including public order, which is being used by the four BJP states to ban the film.

In line with the Supreme Court’s thinking, the Bombay high court quashed the gag order passed by CBI Special Court Judge S J Sharma on November 29, 2017 to prevent reporting the Sohrabuddin Shaikh alleged fake encounter case. Justice Revati Mohire-Dere declared that such gag orders were contrary to law and the media could not be stopped from reporting an ongoing trial. Sharma’s order is irrational, contradicts fundamental rights and is based solely on the application of the defence lawyers without application of mind.

“Is there a provision under which the judge can use his power to direct the media not to publish? Can the court pass such an order in the absence of any provision in law?” Justice Mohite-Dere asked. She is right because under the Criminal Procedure Code, the Civil Procedure Code, the Press and Registration of Books Act and the Contempt of Courts Act, there is no explicit provision to bar the media from reporting court proceedings.

Ironically, Justice Mohite-Dere’s judgment contradicts a nine-judge judgment of the Supreme Court pronounced in 1966 when four journalists challenged an oral order of Justice V M Tarkunde banning the media from publishing the oral testimony of one Bhagchand Goda in a defamation case against Blitz Editor, R K Karanjia.

To add to the irony, Justice Tarkunde later emerged as a champion of human rights, although he violated the basic right of the media to report proceedings held in open court. The judge merely pronounced an oral order of which there is no record for posterity. After the four journalists challenged this oral order in the Supreme Court, the nine-judge bench dissected the entire matter in a voluminous judgment but dismissed the journalists’ petition. They upheld the validity of the oral order, of which these judges themselves admitted there was no record.

The lone dissenting judgment of Justice Hidayatullah had no binding effect because great intellectuals normally walk alone. Hidayatullah’s judgment lays down the correct position of law but tragically, the concurring judgments of the other eight still hold the field. This judgment, which is palpably wrong and curtails press freedom, needs to be re-examined. Until that is done by setting up an 11-judge bench, the judgments of Justice Mohite-Dere are erudite and liberal but do not add to the jurisprudence on a free media.

This is why the Supreme Court needs to reexamine the issue of freedom of speech and expression, and whether judges anywhere within India can prevent the media from reporting what takes place in open court.

THE Supreme Court needs to re-examine the issue of freedom of speech and expression and whether judges anywhere within India can prevent the media from reporting what takes place in open court.

The writer holds a PhD in Media Law and is a practicing journalist-cum-advocate of the Bombay high court.