Prem
Mardi vs Union of India :-
Did the Court fail the tribes and adivasis?
“It is the duty of
all people who love our country to see that no harm is done to the Scheduled
Tribes and that they are given all help to bring them up in economic and social
status, since they have been victimized for thousands of years by terrible oppression
and atrocities. The mentality of our country towards the tribal’s must change,
and they must be given respect they deserve as the original inhabitants of
India” – Supreme Court of India, in Kailas vs State of
Maharashtra (2011) 1 SCC 793
Whether a movie which openly brands ‘adivasis’ and forest
dwellers as ‘devils’ ‘demons’ and ‘uncivilized’, and has the plot of a demigod
protagonist using his divine force and superhuman powers to ‘civilise’ the
tribes by using force, is offensive to the sentiments of tribal communities;
and if yes, whether such offence warrants the ban of the screening of the movie
:- these were the broad issues which had arisen before the Hon’ble High Court
of Delhi, in Prem Mardi vs. Union of India. The petitioner in the case, who belonged to
Santhal tribe of State of Jharkhand, a Scheduled Tribe, had approached the
Court seeking the revocation of Censor Board Certificate granted to the movie ‘MSG2-The Messenger’ and a ban of its
screening on the ground that the movie depicts the tribal communities in bad
light. MSG2, under the production of
Hakeekat Entertainment Private Ltd, is directed by Gurmeet Ram Rahim Singh, who
is a spiritual leader in real life and the head of a spiritual sect named Dera
Sacha Sauda. The movie has Ram Rahim
Singh playing himself, and portrays him as a demigod possessing supernatural
powers. The trailer of the movie uploaded in YouTube declares that it is based
on true events, and goes on to portray Ram Rahim Singh as a messiah of
humanity. It openly says that the ‘adivasis’ residing in jungles have been
declared as anti-national terrorists by the Government; and that they are
neither humans nor animals, but demons(shaitaan).
Ram Rahim Singh is shown as attempting to convert them as humans, often by
resort to violence and force. Finding the said presentation of tribes in the
trailer deeply offensive and distasteful, Sri.Prem Mardi approached the
Court. By judgment dated 16.09.2015, the
petition was dismissed.
The Court begins its judgment by noting an irony in a
petition seeking a ban coming up before the Court, when the Courts were being
moved challenging the several other bans imposed by the State machinery on
various aspects of life. The mindset of the Court is made very clear at the
outset, which hints that the apprehensions of the petitioner are frivolous and
trivial, and that the Court is going to act as a votary of liberties and
artistic freedom. One must say that in its zeal to uphold artistic liberties,
the Court proceeded on an inverted application of the fundamental right to
freedom of expression enshrined in Article 19(1)(a) of the Constitution of
India, disregarding the special protection and care afforded to the tribal
communities by the Constitution.
Does
the term ‘adivasis’ mean ‘Scheduled Tribes’?
The primary reasoning of the Court that the term
‘adivasis’ used in the trailer in Hindi language do not refer to tribal
communities is bizarre and unrealistic. According to the Court, the term
‘adivasi’ refers to earliest inhabitants on any land, and that in the Indian
context they refer to the people living
in India before the arrival of the Aryans in the second millennium BC and
descendents thereof. Therefore, the persons belonging to tribal communities
need not take offence with regard to any remark made about adivasis. This approach of the Court is nothing but an over-simplification,
and rests on debatable and controversial theories like Aryan invasion,
regarding which there still subsists serious differences of opinion amongst
eminent historians. Also, whether there are any ‘indigenous peoples’ in India,
as it is understood in the context of western world, more particularly the
American continents, is a matter which has been vexing the sociologists and
anthropologists alike. The erstwhile
Chief Justice of India, Justice Y K Sabharwal, in his talk delivered in the
Plenary Session on Rights of Indigenous Peoples, at International Law
Association Toronto[1]
,makes reference to the issue. Quoting eminent sociologist Andre Betteile, it
was stated that since India has witnessed the continuous movement of
populations with different languages, races and cultures historically, it is
difficult to identify the original settlers or indigenous peoples, and on
account of intense assimilation of cultures over centuries, many communities
have lost their unique traits and characteristics, and have merged with the
mainstream. However, if indigenous people are understood as a distinct group of
people maintaining a deeply bound community life with an inexorable link with
the natural habitat , living separate from the dominant mainstream with their unique
traditions, culture and peculiar approaches towards land, life and
religion, then the tribal communities
have to be understood as the group of people entitled to the protection of
rights made available to indigenous peoples.
Moreover, the Supreme Court of India has understood the
term ‘adivasi’ as tribal communities in several cases. The decision of the Apex
Court in Kalidas vs. State of Maharashtra (2011) 1 SCC 293,
and Banwasi Sewa Ashram vs. State of UP AIR 1987 SC 341, uses the
term ‘adivasi’ interchangeably with Scheduled Tribes. It cannot be said that
such use of the term ‘adivasi’ was casually made, as the decision is Kalidas contains an erudite analysis of
the history and evolution of the tribes, and presents them as the indigenous
people in the Indian scenario. Be that as it may, the Hon’ble Judges of the
Supreme Court have understood the term ‘adivasi’ as referring to tribes on
several instances. It is also beyond dispute that the term ‘adivasi’ is understood
by an ordinary man, in common parlance, as alluding to tribes. A complaint regarding offence caused by a
piece of art work has to be adjudicated from the view point of an ordinary man
of prudence, as stated by the Apex Court in K.A
Abbas vs. Union of India AIR 1971
SC 481. Therefore, the Court
misguided itself by importing the academic and esoteric connotations of the
term ‘adivasi’, and ought to have adjudicated the matter from a common man’s
perspective. Also, the conclusion that ‘adivasis’ do not refer to tribes is
tremendously unfortunate and insensitive, as it amounts to negating the
identity and existence of tribes, for they identify themselves as
adivasis.
Whether
the portrayal of adivasis in the movie is offensive and insulting.
Although the Court observes that the tribal communities
could not take umbrage at the disparaging references made to adivasis, the
Court did strive to look at the issue from the viewpoint of a person who
understands the term adivasi as meaning Scheduled Tribes. The Court held that
the film was not depicting real life but fantasy and concludes that when the film traverses from the domain of
real to surreal and depicts what none in his / her senses can believe to be
possible and is in the realm of showing the impossible and fantastic, in my
view it cannot be said to be capable of influencing any reasonable mind. In
essence, the Court was of the opinion was that no reasonable person would take
the movie seriously on account of its hyperbolic, exaggerated and over-the-top
narration, and hence harmless. This approach of the Court is not sound. Any
work of art is a product of imagination, and it will necessarily have elements
of fantasy. The corollary of the said reasoning would be that only such kinds
of artistic work, which belong to the realistic genre depicting life as it is,
would cause offence and insult. The
Supreme Court in a recent decision in Devidas
Ramachandra Tuljapurkar vs. State of
Maharashtra 2015 SCC Online SC 486,
wherein it was considering the issue whether a poetic work causing insult to
Mahathma Gandhi was punishable for obscenity under Section 292 of the Indian
Penal Code, held that the effect of the artistic work on the reader was the
relevant factor rather than the original intention of the author. Also, the
vantage point is that of a reasonable man of ordinary prudence for such test.
Here, the cumulative effect of the utterances in the trailer of the movie would
cast the tribal communities in a bad light in the perception of an ordinary
viewer. The trailer unabashedly states that it was based on true events, and is
unapologetic about the brazen insults showered on adivasis. Hence, it cannot be
but concluded that the movie is insulting the tribal communities as a whole,
and that the same was intentional from the part of the makers.
Does
offence to a particular community justify the ban of an art work?
Communities taking presumed offence at artistic portrayals
and clamouring for total ban of the artistic work is a recurring phenomenon in
our country. Such umbrage is taken very often by fundamentalist elements of
communities, and employing their clout, they take law onto their hands to
secure ban of artistic works which are not palatable to them. However, the
judiciary in India have been very vigilant in preserving the freedom of speech
and expression and prevalence of rule of law from the threat and force of such
extremist wings. In S.Rangarajan vs.P.Jagjivan Ram (1989) 2 SCC 574, when
censorship certificate was refused to a Tamil movie Ore Oru Gramathile, on the ground that its anti-reservation theme
was offensive to backward classes, the Supreme Court was moved and the Court
made it categorically clear that freedom of expression cannot be held to ransom
by intolerant groups. The Courts have been repeatedly deprecating the
Governments’ practice of yielding to the unlawful pressure exerted by
intolerant groups to ban movies and artistic works. Known as ‘heckler’s veto’,
this undemocratic process by which a dominant and organized group uses its
pressure and threat to violence to stifle artistic expressions, has been
subject to severe criticism by our Courts. For example, the Andhra Pradesh High
Court in Lakshmi Ganesh Films vs. Government of A.P in respect of move to
ban movie “The Davinci Code” , as well as the Madhya Pradesh High Court in UTV Movies vs. State of M.P when ban was slapped on movie “Jodha Akbar”, upheld
the artistic liberties against complaints of presumed offence. Recent movies like
Kamal Hassan’s “Vishwaroopam”, and Aamir Khan’s “PK”, also were subject to
attack from fundamentalist groups.
‘Don’t watch it if you find it offensive’- this has been the general
judicial approach with regard to such plea for ban on the ground that the movie
portrays a particular community in bad light.
However, in
the instant case, the Hon’ble High Court of Delhi committed a grave error by
following the same approach, without adverting to the several factors which
distinguishes the dispute from precedents. Firstly, here the insult or offence
is not presumptive or inferential but direct, intentional and blatant. It also
gets exacerbated because the movie mainly serves as a propaganda tool for Ram
Rahim Singh, who is regarded as god-like by his followers and whose utterances
are taken as gospel truth by the devotees. The humiliating depiction of the
tribal communities in the movie, although done in a crass and ludicrous manner
to a discerning viewer, is not innocuous as is made out in the judgment, but is
a stark reflection of the deep rooted prejudices and distrust which the
mainstream society harbours with respect to tribes, and the movie will only
help reinforcing them in the social psyche leading to the further alienation of
the tribal communities.
Secondly, the
other instances seeking ban of film works witnessed a situation wherein a
community, which is otherwise dominant, powerful and integrated into the
mainstream society using its hold and clout to secure a ban on the basis of
some presumed insult. So at least, there was an equal and level playing field
amongst the offended group and the offensive group; whereas when tribal
communities are targeted, there is no such level playing field. The tribal
communities continue to be backward and unorganized, lacking a collective voice
and political bargaining power, and are yet to be fully integrated into the
mainstream Indian society. Even now there subsists considerable amount of
malice, ill-will and paranoia amongst the mainstream with regard to the tribes.
It was taking into consideration such peculiar facts that the Indian
Constitution extends its protective arm to the tribes in the form of special
consideration given through Articles 15(4), 341 and 342. That the tribes are
victims of subjugation and oppression for centuries, and are still soft targets
of gratuitous violence and exploitation
at the hands of the mainstream has been judicially acknowledged in decisions
like Kalidas(supra) and Samatha vs.State of Andhra Pradesh AIR 1997 SC 3297. Our judiciary has never
shied away from going an extra mile in providing them succour. When the
construction of grand trunk road in Andman and Nicobar Islands was found to be
disrupting the natural lifestyle of ‘Jarawa’ aboriginal tribes there, the Apex
Court intervened to ban it. Later, in 2012, the Supreme Court banned[2]
the despicable ‘human safaris’, which
were voyeuristic trips organized through Jarawa settlements. The high point in
the campaign for protection of tribal rights arrived with the decision in ‘Niyamgiri’
case in 2013[3], whereby it was held that
mining operations in Niyamgiri hills could be carried out only with the consent
of the tribes residing therein. The ‘Niyamgiri’ hills were regarded as sacred
by the tribes, and such worship was entitled to protection under Articles 25
and 26 of the Constitution. Also, in the Nandini Sunder case of 2011, which
banned the ‘Salwa Judum’ operations in the State of Chattisgarh, the Supreme
Court expressed its deep concern at the plight of the tribes.
Thus, it can
be seen that the judiciary has always held the rights and interests of the
tribal communities in a high pedestal, and that their rights and concerns
trumped even the developmental needs(Niyamgiri), security concerns(Nandini
Sunder), and the right of leisure and entertainment for general public(ban on
trips in Jarawa settlement).Here, the Court was dealing with a movie, which
made the tribal communities an object of mockery and humiliation for
entertainment of the mainstream, which was also conveying a retrograde message
that they constituted a threat to the security and order of society and hence
should be tamed and controlled by using violence. Such depiction of tribal
community will only result in deepening the mental gulf between them and the
mainstream, and would certainly vitiate our social fabric, and endanger public
order in the long run. To hold that the exception of public order under Article
19(2) is only extendable to those groups who openly wield stick and lathis for
disrupting film exhibitions, and that alienation, victimisation and
demonization of historically vulnerable tribal groups would not disrupt public
order, is nothing but a defeatist approach frustrating the egalitarian
principles embedded in our Constitution.
Redeeming artistic or social value
The Supreme
Court of United States in Memoirs vs.
Massachusetts 38 US 413, developed
the test of ‘redeeming artistic or social value’ for salvaging an artistic work
from an attack on the ground of obscenity, offensiveness etc. The said test has
been adopted by our Courts in K.A Abbas and
S.Rangarajan. The Courts will examine
whether the impugned artistic work contains an redeeming artistic or social
value which will justify its publication, notwithstanding the presence of
elements of obscenity, offence etc. For example in Bobby Arts International case AIR 1996 SC 1846, the movie ‘Mother
India’ received judicial protection, despite containing scenes of nudity and
gross violence. If there is any preponderating artistic content capable of
giving aesthetic bliss or cathartic experiences, or overwhelming social value
highlighting a rampant social evil so as to elicit the disapproval of the same
by the audience, the Courts will strain to salvage the work of art.
The movie,
MSG2, terribly lacks any such redeeming artistic or social value. As stated
earlier, it acts as a mere propaganda tool for cementing the position of Ram
Rahim Singh as a spiritual leader by showcasing his heroics. Moreover, it acts
as a vehicle of regressive and dangerous ideas by depicting tribes as demons
and barbarians who ought to be humanised by use of force, and makes them an
object of ridicule and humiliation in the name of entertainment. All the film
reviewers were unanimous in their verdict that the movie was a pathetic work.
Of course, the Court did not have the occasion to watch the entire movie, and
made the judgment after viewing the trailer. However, in view of the specific
prayer made by the petitioner for a special watch of the movie by the Court,
the Court ought to have watched it to examine the presence of any redeeming
artistic or social content.
One may frown
at the suggestion that State should exercise quality control of artistic works
and should sit in moral judgment over them. However, if the content of the art
is such that it tends to have a deleterious effect on social fabric by
noxiously portraying a vulnerable and voiceless community as demons, then the
State can certainly embark upon such an enquiry. Law empowers the State to do
so. And it is essential for an orderly and peaceful society, wherein diverse
groups have to co-exist in harmony.
Guideline (d)
of the Guidelines for Certification of Films for Public Exhibition issued in
exercise of powers conferred by Section 5B(2) of the Cinematograph Act, 1952
mandated the Censor Board to ensure that visuals or words contemptuous of
racial, religious or other groups are not presented and visuals or words which
promote communal, obscurantist, anti-scientific and
anti-national attitude are not presented. Also, as per Section 3(x) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
insulting or intimidating with intent to humiliate a member of a Scheduled
Caste or a Scheduled Tribe in any place within public view, is an offence. A
plain and direct application of the said provisions to the movie would attract
the consequences under them. However, the CBFC failed to place due advertence
on them while certifying the movie. Since the same amounted to a patent
illegality, the Court could have reviewed the CBFC decision in exercise of its
vast powers of judicial review.
By declining
to do so, apparently in the name of upholding artistic liberties, the Court abdicated
its powers, and thereby failed the tribal communities and missed an opportunity
to reinforce and restore the faith of them in the Indian Republic.
(Published in 'Live Law' at http://www.livelaw.in/prem-mardi-vs-union-of-india-did-the-court-fail-the-tribes-and-adivasis/ on 24.09.2015)
No comments:
Post a Comment