Freedom of speech and expression through cinematography is consistently under threat in our multicultural society. Despite repeatedly being upheld as a Fundamental Right, though certainly not absolute in nature, several works of art communicated through cinematography are attempted to be banned in the name of distortion of culture by known organisations such as Shree Rajput Karni Sena.

An attempt was once again made to sabotage the release of the film ‘Padmaavat’ co-produced by Viacom18 Motion Pictures. Based on the aggressive campaign by organisations like Shree Rajput Karni Sena, several States exhibited reluctance to allow screening of the movie. The States of Gujarat and Rajasthan by notifications/orders dated 13 January and 17 January 2018 respectively prohibited public exhibition of this film. Consequently, producers moved the Supreme Court challenging such notifications. However, this issue raises concerns beyond the release of movie. Are private armies like Karni Sena an illegal face of State Governments? In this case, should the State not be jointly liable for contempt of the Supreme Court’s orders when the film ‘Padmaavat’ didn’t witness a peaceful release?

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These questions are not only socially annoying, but their appropriate redressal may fix many within the Governments who are perhaps responsible for tacitly encouraging fringe elements like Karni Sena. Given the nationwide violence which has resulted in destruction of public property, created near life-threatening circumstances for movie goers and especially the film crew, public scrutiny of the release of this controversial movie is essential.

The basic contention of Viacom18 Motion Pictures was simple – that since it undertook due compliance of all recommendations of the Central Board of Film Certification (CBFC), the statutory body created under the Cinematograph Act, 1952, there was no reason for State Governments to disallow its release. The State Governments cannot administratively and suo moto sit over the CBFC’s decision and its certification as an appellate authority. Hence, such notifications/orders of State Governments to ban the movie only amount to infringement of the filmmaker’s fundamental right to speech and expression.

Resultantly, on 18 January 2018, the Supreme Court heard the petition on behalf of the filmmakers and clearly directed State Governments to ensure the smooth release of the movie and put a stay on the operation of their notifications/orders prohibiting the exhibition of the film. The court further directed other State Governments to refrain from bringing out similar notifications/orders in any manner in order to prohibit the film’s release.

Filmmakers’ Merit

The Supreme Court held that once a body empowered by statute clears objections concerning the release of a film, then the ‘law and order situation’ cannot be cited as a valid ground to prevent the release. Hence, non-exhibition of the film by the States would be contrary to the statutory provisions and infringe on the fundamental right of the petitioners.

Therefore, when the movie release saw massive havoc on streets across states, it only reflected the State Governments’ inability to ensure public peace and tranquillity in the name of public outrage and agitation by few fringe elements like the Shree Rajput Karni Sena. This in turn does not suggest anything lesser than the State Governments’ tacit connivance with such unlawful forces in prohibiting the release.

Connivance

According to reports dated 21 January 2018, the Rajasthan and Madhya Pradesh governments invited the Rajput Karni Sena and Rajput associations to be a party in their review petition in the Supreme Court against the order dated 18 January allowing the release of film “Padmaavat”. It becomes only logical to question the justification of State Governments filing a joint petition with fringe elements.

On one hand, there is an organisation which is openly challenging the release of the film despite a clearance given by the CBFC and after it had been upheld by the Supreme Court. On the other hand, the State Government was visibly conniving with fringe elements to jointly oppose the release. Therefore, State Governments’ arguments in the Apex Court, citing law and order situation was nothing but a creation of an artificial ground to prevent screening of the movie.

Determined action by the states to curb the violence of the Karni Sena and similar organisations and towards protecting the fundamental right of speech and expression was absolutely missing. State Governments’ omission to act swiftly in public interest will only create a fertile ground for fringe elements to prosper and erode the spirit of Constitutional guarantee of freedom of speech and expression in our democratic society.

Joint Contempt of Court

There cannot be a greater sign of State’s endorsement of private armies and their challenge to law and order situation. Is it not a virtual breakdown of the Constitutional machinery, when the State begins to silently endorse criminal activities which threaten the enjoyment of fundamental right of speech and expression? A couple of days before the film’s release, on 23 January, the Supreme Court rejected the review petition of the State Governments and reinforced its earlier order.

Hence, there was a clear onus on the Principal Secretaries of the State Governments to maintain law and order on January 25 and thereafter till the movie was out in open for public screening in the theatres. However, what we saw on the streets was a mockery of judicial orders by Karni Sena activists. It calls for a case of contempt orders against the Karni Sena members as well as the Principal Secretaries of the State Governments who have failed to ensure public order and peace.

Perhaps a time has come to draw a cue from the environmental jurisprudence developed by the Supreme Court in the cases such as Indian Council for Enviro-Legal Action vs. Union of India (1996) 3 SCC 212, wherein the Apex Court held the ‘polluter’ liable to pay for the pollution caused and restore the environmental balance to the original position.

We have seen the Supreme Court holding private corporations liable in cases affecting the society due to their negligence of running a factory or indulging in incidents that could incite public disturbance. Similarly, a method can be evolved to fix a personal liability of the State Government officials and make them pay for any loss of public property due to outrage by fringe elements and their criminal activities. In appropriate cases, even the Chief Ministers of the State could also be held liable and be asked to make good the loss.

Time will perhaps pave a way for such judicial orders as well. However, in the present case, history will read it as only a glaring act of the executive’s connivance with the unlawful forces of society in utter disregard to the orders of the highest court of the land. Lest we forget, such forces will rise again and continue to threaten our freedom of speech and expression, till the nexus between fringe elements and the State actors is exposed and judicially struck down, fixing the liability on the concerned public servants.

The writer is Assistant Professor of Law, National Law University Odisha and Assistant Registrar (Research), Supreme Court of India (on deputation).