When free speech earns the freedom it deserves
The last two months have been a fillip for literature and cinema in this country.
Two important cases have been cleared by the Bombay and Madras high courts which will have a significant impact on how books are written and films are made. One of the cases garnered more attention than the other, possibly due to the nature of the respective mediums.
In June, the Bombay High Court allowed for the release of the film Udta Punjab with just one cut and a modified disclaimer. This was a victorious departure from the CBFC's demand for a series of cuts, and deletion of all references to Punjab, elections, MPs and MLAs.
Following this, the production house of filmmaker Anurag Kashyap (one of the film's producers) had moved the court to contest 13 of the cuts demanded, the Bollywood fraternity came together to protest, the court's order was passed and the media eagerly snapped up this star-studded spectacle.
While the win is an important one, it is accompanied by disclaimers.
The CBFC, a certifying body, continues to uphold its right to make cuts. Hence what we watch in our living rooms is contingent on a group of people who can approve or curb such a free-flowing medium, under circumstances that surpass artistic merit and often reflect political affiliation.
With the high drama that surrounded the entire process, the film could well have been marked for an Eid release.
Case two came to a way less dramatic but far more substantial conclusion three days ago.
The Madras High Court lifted the ban on and quashed all criminal charges against Tamil author Perumal Murugan's novel Madhorubagan (2010), translated into English as One Part Woman (2014).
The accusations against Murugan invoked different parts of the Indian Penal Code - disturbing public tranquillity (Section 153-A(1)(b), vulgarity (Section 292), hurting religious sentiments (Section 295(a)), among others. The judgment has been lauded for its expressiveness, lucidity and its definitive implications for freedom of expression in India.
There was minor sensationalism and a #JeSuisMurugan moment in early 2015 when the eminent scholar declared himself dead as a writer.
This ensued from the trauma he faced for his fictional account of a childless couple subjected to social torment, which led to the woman participating in a social ritual that allowed childless women to procreate with strangers from the community on the 14th day of the annual temple festival in Tiruchengode.
A fictionalised account located in social history and folklore, the novel won many accolades and awards. But its English version led to public protests, demonstrations, and condemnation in his hometown where the novel was located.
Consequently, a peace committee meeting organised by different groups demanded an unconditional apology and revoking of all unsold copies, and deletion of all controversial portions of the book.
The judgment speaks of kangaroo courts being formed across the country which target artists, writers and filmmakers, which "are a threat to democratic polity and the performance of the fundamental role of the judiciary".
To this effect, it recommended a set of guidelines which safeguard against threats to authors, artists or cultural proponent by ensuring the protection of the state against any form of collective coercion, and that congregations should not have the power to pressurise the individual in any manner.
It states that such congregations should not be condoned by state authorities and the preservation of an individual's right of expression should be safeguarded by other means.
It prods the government to set up an "expert body" to deal with such cases of creative license which do not fall under the domain of state authorities.
Using significant court cases as precedent such as Aveek Sarkar vs State of West Bengal (2014), Samaresh Bose vs Amal Mitra (1985), MF Hussain vs Raj Kumar Pandey (2008), S Rangarajan vs Jagjivan Ram (1989), Sujato Bhadra vs State of West Bengal (2003) among others, this judgment sets itself up as a landmark judgment that counts on the validating force of the past to secure a strong present and an even stronger future.
Its rich narrative is peppered with documents (provided by Murugan's counsel) that counter claims of obscenity and blasphemy by showing similar cases of sex outside marriage for childless women in different sections of Tamil society.
It also questions the hypocrisy of trying to castigate the depiction of women having sex outside wedlock for procreation when many instances of this are found in the Mahabharata.
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| The Bombay High Court allowed for the release of the film Udta Punjab with just one cut and a modified disclaimer. |
Exemplifying the balance required for free speech in a pluralist democracy to thrive, the judgment states:
"Thus, whenever free speech and expression is sought to be given wings and let loose against the backdrop of one's creativity, it must carry on its flight within the domain of constitutional morals, forever remembering that while individual opinions and forms of expression are critical to advancement and multifaceted national development, equally important is the safeguarding of the dignity and respectability of another and his cherished beliefs, for the latter must never be compromised on account of the freedom guaranteed under 19(1)(a), as the victim in such circumstances will be no less than the constitutional heartbeat of fraternity - the national brotherhood."
It locates itself squarely within the tradition of free speech, acknowledging not only the fundamental right of the author, but also the accountability of the publisher, reader or receiver of the art form.
It asks, "would it be desirable for the courts to intervene or should it be left to the readers to learn for themselves what they think and feel of the issue in question?"
The legal apparatus plays a big role in shaping the moral and cultural content of a nation.
Both the Udta Punjab and One Part Woman cases demonstrate how law and politics are in constant engagement with cultural realities and how legal decisions shape public discourse. Empowering people to think for themselves is how morality is fundamentally built.
To control the movement and expression of ideas is to patronise the citizens of a country. The very idea of "reasonable restrictions" exists to prevent moral corruption.
The Murugan judgment reflects on the debates that took place around the censoring of scenes from Udta Punjab.
Supporters of the cuts, such as actor Mukesh Khanna, argued on the Newshour debate that the depiction of free-flowing drugs and cuss words would corrupt the morals of people like his driver.
Moral values, social ethics and accountability is developed not from a harsh imposition of laws but a mature engagement with the issue at hand, whether it is reading a text, viewing an artwork, or littering the road.
The judgment also issues a note of caution: "It is a matter of concern that as an evolving society, our tolerance level seems to be on the decline. Any contra view or social thinking is met at times with threats or violent behaviour."
This is only too true of our times, and has led not only to the banning of historical works like Wendy Doniger's The Hindus: an Alternative History and the exile of artists like MF Husain's, but also the recent murders of writers Narendra Dabholkar, KM Kalburgi and Govind Pansare, who spoke against godmen, black magic, brahminism and idol worship.
In fact, if there were more films and artworks that challenged our points of view and forced us to contemplate social rituals and realities that we take for granted, we would be more enriched than just being entertained, which is why a Salman Khan starrer makes 75 crore in the first half of its second day in the box office.
Mindless entertainment must necessarily jostle with meaningful literature and cinema, and not just be accepted as par for the course. Only then can we grow as a country as we won't have to put up with cultural nationalism, moral policing and extra-judicial groups to show us the way.