The Moving Bull’s Eye

The now-revoked State ban on Viswaroopam was about legal subterfuge, which has a far-reaching ‘chilling effect’

A layperson following the controversy around Kamal Haasan’s film Viswaroopam would surely have wondered which shadowy penumbras in the law could possibly have justified the actions of the Tamil Nadu government.

There is copious judicial precedent unambiguously governing the case, holding that state governments cannot hide behind the fig leaf of apprehended ‘law and order’ threats and effectively stifle the screening of a film cleared by the Censor Board.

In 2006, the Madras High Court itself laid down, in a case involving the film The Da Vinci Code, that if the impending release of a film causes ‘law and order’ apprehensions, the state government is obligated to provide adequate security to ensure that the film can be screened without incident.

If the law reiterates, unequivocally and consistently, the said propositions, on what legal peg did the government authorities purport to hang a ‘law and order’ based ban on Viswaroopam? The answer is: by locating an obscure peg that did not have occasion to be dismantled directly by a previous precedent. If acting legally is like hitting the bull’s eye, the government authorities in Tamil Nadu have attempted the equivalent of drawing the bull’s eye around the spot their arrow landed—somewhere on the periphery of the board. It is not possible to see fairness in or assign reason to an activity where you are allowed to draw the bull’s eye wherever the arrow lands.

Even though financial pressures seem to have constrained the film producers to go for a ‘settlement’, this episode has the potential to cause a ‘chilling’ effect on the fundamental right to free speech, guaranteed under Article 19(1)(a) of the Constitution, causing citizens to lose faith in constitutionalism itself.

The fact that the injured party’s rights will be eventually vindicated in a court of law does little to attenuate the chilling effect such measures have. In other words, the Tamil Nadu government’s actions affect not just the party whose speech is stifled but countless others who will think again before expressing themselves freely.

Constitutional Courts in several countries have underlined the vulnerability of free speech to this ‘chilling’ effect and the need to guard against it. Often, the time lag between the government’s illegal action and the court’s invalidation of it will cause irreparable damage to the injured party and the fear of anticipated injury deter others from expressing anything that could be even remotely controversial.

As mentioned earlier, this is familiar territory for the government of Tamil Nadu. In the Da Vinci Code case, the ban had been imposed under Section 13 of the Cinematograph Act, 1952. The Commissioner of Police in Chennai had issued an order stating that there was a likelihood of a breach of peace. The court finally held that the order was passed ‘without thinking’. In line with the precedent set by the Supreme Court, the Madras High Court held that once the film had cleared the Censor Board and in its opinion satisfied the requirements of Section 5(2) of the Cinematograph Act, the entire scope of reasonable restrictions that could be imposed on free speech under Article 19(2) of the Constitution were exhausted. The Court held that ‘the compulsion that made the state government pass the impugned order is inexplicable and cannot justify the violation of the fundamental rights of the petitioners.’

The law relating to censorship of films is well settled, as borne out by a reading of a long list of Supreme Court judgments from KA Abbas (1971), Ore Oru Gramathile (1989) and Shankarappa (2000) to Aarakshan (2011), where it has been clearly laid down that state governments do not have any power to prevent the screening of films after they have been cleared by the Censor Board.

More than once, the court has categorically repelled the argument of the State’s need to protect law and order as a valid excuse to prohibit the screening of a film.

On the contrary, the courts have held that it is the State’s duty to ensure maintenance of law and order for the peaceful screening of films.

In what appears to be an attempt to find a way around this, the Tamil Nadu government issued prohibitory orders to 524 theatres across the state under Section 144 of the Criminal Procedure Code, which permits the executive magistrate to take preventive action in emergent situations to, among other things, prevent annoyance, injury to human life or property and to preserve ‘public tranquility’. Discretionary power under Section 144 is vested in the office of the executive magistrate, and if it appears that he has not made up his mind independently but acted upon the directions of any other person or authority, including the state government, such an order would fall foul of the law.

This proposition was established by Justice Vivian Bose of the Supreme Court, way back in 1951, in the Commissioner of Police v. Gordhandhas Bhanji case. The Tamil Nadu government’s defence of these orders is premised on their being independent exercises of official discretion by executive magistrates. However, it is fantastic to assume, even allowing for fortuitous coincidences, that the Commissioner of Police, Chennai, and Collectors in all the 30 other districts independently came to the conclusion that screening the film would lead to a ‘law and order’ problem. It was clearly an attempt to do indirectly what the state government cannot do directly—an attempt to draw the bull’s eye around the point where the arrow landed, somewhere in the penumbra of doubtful legality.

Furthermore, the justification of the order has been that certain Muslim outfits had made representations to the state’s home secretary and there were apprehensions based on intelligence reports that their protests would turn violent. It is in such cases that the Supreme Court has stated categorically that the duty of the State falls on the side of liberty—in protecting fundamental freedom rather than stifling it. In such a situation, the State must ensure that the citizen enjoys the protection necessary to exercise his freedom of speech and expression, in this case, by ensuring the screening of the movie in theatres.

If one peg on which the government could hang its case to circumscribe free speech is dismantled by the courts, governments tend to find with ingenuity another obscure peg, if only provisionally, until the courts strike that down too. That is the history of censorship, not only in India but around the world. Govern- ments have always tried to get around legal restrictions with innovative methods, which is why courts need to be ever vigilant against insidious encroachments on fundamental freedoms, to ensure that these rights are not defeated by State subterfuge.

Sometimes, even though the citizen may have his right upheld in the end, irreparable damage may already have been caused to free speech before the courts dislodge the government’s unconstitutional conduct. In the present case, it could be said that many of the substantive commercial rights Mr Haasan was entitled to draw from the legitimate exercise of his right to speech and expression were defeated by the actions of the government coupled with an initial refusal of an injunction by the Madras High Court. This, in turn, would affect the manner in which other filmmakers may choose to exercise their freedom of speech and expression.

We can only share the lament of Justice Prabha Sridevan at the end of her judgment in the Da Vinci case: “To what depths have we now fallen? One can only say… ‘cry, my beloved country’.”

Shivprasad Swaminathan is a doctoral candidate in jurisprudence, Oxford University, and assistant professor, Jindal Global Law School; Suchindran BN is an advocate currently practising in the Madras High Court

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Suchindran BN