The article was written by Ms. VARSHINI R.A a 2ND year student at Ramaiah College of law, Bangalore.
ABSTRACT
Article 19 of the constitution provides for a significant fundamental right without which the democratic fiber of Bharat would be at stake. Right to expression guarantees every individual legal protection of voicing his/her views and opinions subject to certain restrictions. Persons in power manipulate and resolve to suppression of differed thoughts, putting the right at stake. This paper aims to discuss one such case that went on to become a landmark judgment for safeguarding Article 19 in documentaries. The case is sufficiently summarized for the readers with appropriate case laws and a depiction of the current crisis that plague the country.
INTRODUCTION
Anand Patwardhan vs Union of India is a historic case that revolutionized the way courts interpreted Article 19 through the prism of intellectual property rights.
IPR was a relatively new field in the early 1900s with very little legal protection availed by any victims of violation. Though the first reference to IP laws can be found as early as 1856, it started gaining importance only in the early 2000s. A variety of laws (law of torts, IPC, and other civil laws) were also used to protect against any violation. This violation could be in the form of ideas stolen, geographical products, way of life, customs, traditions, etc.
This case ensured that an individual’s right to express his opinion would not be subjected to unreasonable restriction just because it is contrary to accepted norms. Documentaries have always been an eye-opener to our ‘ignorant’ society. Hard truths, unspeakable scandals, and the true essence of corruption have been beautifully portrayed in many outstanding and award-winning documentaries in the past and continue to do so. “Elephant whispers”, “something like a war” and “reason” are phenomenal specimens of the same.
The present case is an exceptional example of one such piece of work that had to pass through many hurdles to see the light of day. It portrays how publishing houses and production companies easily misuse laws for financial and personal benefit. Such tinkering can have far-reaching consequences beyond perception leading to ignorance and misappropriation.
FACTS OF THE CASE
The petitioner, Anand Patwardhan a famous and award-winning director, submitted his work ‘In Memory of Friends’, to Doordarshan that refused to telecast and grant a ‘Universal’ certificate. The documentary was a verité portrayal of the violence and terrorism observed in the state of Punjab. The film paints a vivid picture of a group of Sikhs and Hindus, exposing themselves to danger in an attempt to recover tolerance and communal harmony that once was the hallmark of Punjab. The memory of the legendary martyr Bhagat Singh takes center stage.
The film was completed in 1990 that lasted 60 minutes and was acclaimed at the national and international level. It was screened in the London Film Festival, in 1990 and the non-feature section of the Indian panorama at the Madras International Film Festival of 1990. It was given the best investigative documentary of 1990 and was awarded by the government of India. The film went on to win the silver couch at the Bombay International Festival of Documentary and Short Films and the special jury prize at Mannheim in Germany. The documentary was described as an ‘honest portrayal’ of the violence and terrorism faced by the people of Punjab.
Renowned as a well-connected and trusted screening channel, Mr. Patwardhan submitted this film to Doordarshan for national telecasting on 12th March 1991. The issue arose when Doordarshan chose not to respond to the petition, forcing Mr. Patwardhan to tender a legal notice dated 29th April 1991. In response to the notice, Doordarshan stated that the copy of the film was not traceable. Another copy of the film was furnished by the plaintiff on 17th July 1991. The letter received on date 3rd February 1991was what gave rise to the legal strife between the two. Doordarshan had refused to telecast the film as it deemed it ‘inappropriate’ and not suitable for telecasting under its national programs.
CONTENTION OF PARTIES
Points made by the petitioner.
It was the case made by Mr. Patwardhan that Doordarshan had unlawfully and without any legal reasoning restricted his right to freedom of speech and expression. By refusing to air the documentary, the channel was depriving Indian citizens the right to be informed of the horrifying state of affairs in Punjab. He vociferously argued that the fundamental right enshrined in Article 19(1)(a) of the constitution was violated.
The respondents had given no clear justification for the refusal to air the film. The film was a rare depiction of the agony, fear, and terrorism faced by the innocent people of Punjab that the country needed awakening to. According to the petitioner, denying the screening of such an important piece of current mis happenings in the country could have ‘serious implications’ nationwide.
The petitioner speculated that the representation of the then-ruling government as a tyrant, undermining the forces of the opposition of political forces in Punjab created prejudice in the minds of the respondents. The film contained excerpts of interviews from terrorist organizations and conversations with victims as a result of the unfortunate riots post-assassination of the late Prime Minister Mrs. Indra Gandhi. The characterization was balanced. There was no justification or glorification of fundamentalists. This in substance was the range and rigor of the documentary.
Points made by the respondents.
A counter affidavit filed by Shri Sandeep Sood, program executive, Doordarshan Kendra, Worli Bombay gave detailed objections against the telecast. The network’s contentions pertained to a few clippings of the film that alluded the existence of a particular God, if broadcasted may ‘hurt’ the religious sentiments of other ethnic groups.
The documentary contained excerpts of interviews given by Khalistani anarchists that according to them, may cause a spark of insurgency and violence that threatens the stability of the country. It was further cited that the editorial commentaries in some places go all out to prove that it is the class consciousness only as in the case of communists that can prevent the religious and communal massacres.
The stand taken by the respondents was, for the documentary to be telecasted under the national programs on Doordarshan the contended clips needed to be eliminated. This decision was taken in larger public interest and to prevent the spread of any communal hatred that may lead to further ferocity.
PRECEDENT
The landmark judgment of K. A. Abbas vs Union of India finds relevance. The case was dealt by a constitutional bench of the Supreme Court that passed a judgment on the important question relating to the pre-censorship of cinematographic films that is in violation of Article 19.
Pre-censorship gives persons in authority to decide in advance what may or may not be permitted for viewing by a certain sect of people. It is usually conducted by governments, publishing houses, and other controlling bodies against any content that they deem to be ‘unfit or objectionable’.
FACTS OF THE CASE
The petitioner of the model case sought a ‘Universal’ certificate for his creation ‘A Tale of four cities’. The short film documentary depicted the stark contrast between poor and rich habitants in metropolitan cities. The film portrayed complex themes of prostitution, exploitation, and extortion that affected the labor class and did not differentiate between man, woman, or child.
The examining committee objected to the grant of the ‘U’ certificate and concluded that it should be restricted to adults only. They further contested that for the film to be broadcasted scenes shot in red-light districts were to be deleted from the document.
Mr. Abbas sued the board on two grounds: (a) the pre-censorship itself should not be entertained as it limits the fundament right of free speech and expression. (b) even if pre-censorship is legitimate, it should be done only in certain exceptional cases and must follow very definitive and well-defined principles that leave no room for arbitrary action.
JUDGEMENT
The learned bench opined that censorship in general was governed by the restrictions perspicuously mentioned in Article 19(2) of the constitution. Hence, the question of pre-censorship as disputed by the plaintiff was unwarranted. The court however, recognized the absence of the word ‘reasonable’ in the Cinematography Act and considered it inconclusive. Pre-censorship was considered an important control system exercised to maintain peace and tranquility. These restrictions were significant to deter content creators from producing material that was against the ideals and standards of the target audience.
Regarding the question of ambiguity, the bench was of the opinion that the guidelines laid down in Article 19(2) were sufficiently clear and did not require any further detailing. It, however, recommended drawing a coherent distinction between artistic and non-artistic expression to assess the subject of ‘obscenity’. The objection raised by the plaintiff was in itself considered insufficient to strike down the provisions of the act.
It can be reasonably concluded by the facts and direction of the decision that the plaintiff may have had to delete certain portions of the documentary to obtain the ‘Universal’ certificate.
By generally upholding the committee’s right to censor content the court contracted the right to freedom of expression. The Cinematograph (Amendment) Act 1981 was passed and the Censor Board to the Central Board of Film Certification and Cinematograph Rules, 1983 was also introduced.
Many other cases such as the Ramesh vs Union of India and Odyssey Communications Pvt ltd (supra) were further reiterated in the case of S. Rangarajan vs. P. Jagjivan Ram. By citing these cases the Supreme Court stated that the right to free speech and expression was an inherent fundamental right in a democratic free country. This right cannot be held ransom by an intolerant group of people. Tolerance needs to be the primary attitude of citizens in a democracy. Ignorance can have devasting consequences. Open criticism of government policies, legislations, lack of transparency, and corruption cannot be termed as a violation of the restrictions mentioned in Article 19(2).
JUDGEMENT DELIVERED
The ruling can be divided into 3 segments to judiciously understand the ruling.
Firstly, the objection of the film propagating leftist ideas was dealt with. It was the opinion of an Honorable Judge A Shah – everyone doesn’t need to agree with what is telecasted or portrayed. This is the very principle on which democracy is based. The fundamental rights given to individuals are generally taken for granted. Content creators need to be given complete freedom to ‘think out loud’ unless they are not in violation of any restrictions in Article 19(2). The state cannot limit this right just because the views expressed are against its propaganda. Every individual is entitled to an opinion and it cannot be oppressed based on a hunch of it causing riots or distress in the country.
Secondly, the respondent’s claim of the documentary propagating the existence of a certain God was dealt with. The court slammed the argument and shunned this complaint. The sentiments of one community cannot be ‘hurt’ due to the portrayal of God. Even if this were true, the documentary does not condemn any religion but showcases the violence and terror faced by a certain sect of people. Hence this objection is without any merit.
The last objection of the documentary openly depicting interviews with terrorist organizations was addressed. The honorable court thought that the film aimed at exhibiting the reality of events in Punjab. If viewed in its entirety the documentary was an exceptional form of expression that needs to be seen from the perspective of the creator. It was already established that the documentary did not further any fundamentalist ideologies. Hence getting carried away by the effects of the film rather than the impact of its entirety would not do justice to the message being delivered.
The judgment was delivered on behalf of the plaintiff. Mr. Sabastian submitted that his client plead to the Honorable court, the documentary to be broadcasted on Doordarshan channel I or II. The reason stated was that other channels usually catered to regional preferences and linguistic classes. A request was made for the film to be telecasted for reasonable hours during the day to ensure maximum coverage and viewing. This invocation was made in light of Doordarshan telecasting content at odd hours, making use of loopholes.
For the question of granting ‘universal’ certificate, it was observed that when the censor board had recognized the film Doordarshan shouldn’t have a problem with it. The Supreme Court directed Doordarshan to consider the documentary acceptable for all ages and start broadcasting at the earliest.
CONCLUSION
In conclusion, it is imperative to recognize our societal responsibility in staying well-informed about the world around us. Whether through news channels, documentary films, blogs, or research articles, we have the means to educate ourselves and empathize with the challenges others face. The landmark case of Anand Patwardhan vs. Union of India served as a much-needed wake-up call. The judgment effectively distinguished between artistic expression and societal sensitivity, safeguarding content creators from unjust ostracism.
While censorship remains a part of the Indian legal landscape, this verdict sought to curb unjustifiable suppression by those in positions of power. In a democracy, fostering open conversation and discussion is vital, even when it stirs contention among a few. Uniformity of thought is not a prerequisite.
To ensure that the right to free expression is upheld for every individual in this free nation, this judgment continues to serve as a guiding light. It reminds lawmakers to uphold the ideals and principles enshrined in our constitution, perpetuating the spirit of democracy and the diverse voices that enrich it.
REFERENCES
CASE LAWS:
- Anand Patwardhan vs Union of India: 1997 (3) BomCR 438
- K.A. Abbas vs Union of India: 1971 AIR 481, 1971 SCR (2) 446
- Ramesh vs Union of India: 1990 AIR 560, 1989 SCR (2) 629
- Odyssey Communications Pvt ltd (supra): 1988 AIR 1642, 1988 SCR Supl. (1) 486
- S. Rangarajan vs. P. Jagjivan Ram: 1989 SCR (2) 204, 1989 SCC (2) 574
The article was originally written by A Shah and published on Indian Kanoon. The link is enclosed herein.