Despite freedom of speech being guaranteed under the constitution, vested interests have, time and again, used the IPC to curb it for artistes by slapping frivolous charges against them [/h2]
By Somi Das
American sex symbol and one of the highest paid actresses of all time, Mae West, once famously said: “I enjoyed the courtroom as just another stage, but not so amusing as Broadway.” West’s love for the stage was so solid that she didn’t mind being dragged to court to defend her right to free speech. In 1927, she was charged under obscenity law in the US, sentenced to 10 days in prison and made to cough up a fine of $500 for writing, directing and performing in SEX, a play dealing with homosexuality.
Over time, the US has broadened its definition of freedom of speech and expression and today, even pornography (except for child and animal porn) is protected under the First Amendment, which guarantees the rights of free expression and action.
However, in India, the scene is altogether different. A bunch of stand-up comics and some prominent Bollywood celebrities found themselves in a legal soup recently for performing and attending a form of insult comedy called a “roast”. This comedy is usually laden with expletives and sexual references. Members of the comedy collective, All India Bak**d (AIB), which conceptualized and organized the show, have a number of FIRs filed against them and religious groups have hounded them for hurting their sentiments. Under pressure, they had to pull back the video in question and apologize to them. A show by Aditi Mittal, one of the comics, in Mumbai had to be cancelled after threats from a political party.
Arjun Kapoor and Ranveer Singh at the AIB Roast
Though the Indian constitution guarantees freedom of speech, it comes with many riders and can be nullified by many other clauses and sections in the IPC and other acts of parliament. A look at some of the frivolous charges against AIB would make one realize why freedom of speech is just an empty clause in the constitution.
The common charge in all three FIRs filed against AIB in Maharashtra is obscenity. A person can be charged under Section 294 in the IPC if he, “to the annoyance of others”,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place”. But the section doesn’t specify what exactly is obscene. This is precisely why a couple can land in jail for doing something as innocuous as kissing in public if it annoys the sensibilities of another person.
However, the Supreme Court has from time to time tried to define obscenity. The case of Shri Chandrakant Kalyandas Kakodkar vs The State of Maharashtra and Others, (1962 (2) SCC 687), says: “The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. What is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals may be obscene in our country. But to insist that the standard should always be for the writer to see that the adolescent ought not to be brought into contact with sex or that if they read any references to sex in what is written whether that is the dominant theme or not they would be affected, would be to require authors to write books only for the adolescent and not for the adults.”
Clearly, as per the apex court, the onus is not always on a performer or a writer to judge the degree of obscenity in a material he or she is putting out for public consumption. Despite the court’s rational interpretation of the obscenity law, it is regularly used against artistes, going against the spirit of freedom of speech. Just before the AIB fiasco, a case was filed against the producer of PK, Vidhu Vinod Chopra because the film’s posters showed an almost nude Aamir Khan covering himself only with a transistor. Advocate Abha Singh, while demanding that a case be filed against the Roast participants, did acknowledge that there was a dichotomy between the obscenity law and freedom of speech. She said: “If they think that the law on obscenity is improper and constrains freedom of speech and expression, then the right course for them is to approach the government for changing it.”
Actress Mae West was arrested in 1927 for acting in SEX
Offense-taking is an industry today. It requires no investment, it doesn’t even require brains. But it’s giving you tremendous pay-off.” BEING BIZARRE
The second charge against AIB is that it didn’t have a censor certificate to perform at the National Sports Club of India (NSCI). What’s more, Jayantilal Shah and Ravinder Aggarwal, the president and secretary-general of NSCI respectively, have also been named in the FIRs. But do live shows come under the Censor Board?
Strangely, in Maharashtra, censor clearance is required for plays, poetry events, comedy shows and any other performing art. It is the only state where a Stage Performance Affairs Board has been created under the Police Act and is administered by the State Cultural Affairs Department. If AIB’s organizers had done the show in, say, Bangalore or Delhi, they would have had one charge less against them. Expecting a stand-up comedy show to follow a pre-screened or pre-approved script is bizarre. This law clearly violates the right to freedom of speech and expression of an artiste.
Aditi Mittal, a comic who featured in the roast, found a show of her cancelled under political pressure
TWO SETS OF RULES
Strangely, another count on which AIB and the event organizers have been held accountable is violation of the Environment Act. What did AIB do to degrade the environment and why has no industrialist being charged for the same? Section 15 of the Environment Protec-tion Act states that there can be no change in land use. Abha Singh said that NSCI, the venue of the roast, is only meant for sports events and the organizers could get five years in prison for changing the land use.
Even Mumbai’s BJP secretary, Vivekanand Gupta, had complained to the municipal commissioner, saying: “From the recitals of the lease deeds as mentioned herein, it is clear that no activities other then sports should be allowed by NSCI.”
Then, how is it that when NSCI is used regularly for other events, no action is taken? Just a few days back, Prime Minister Narendra Modi attended a lawyers’ event at the same place. This is another classic instance of laws being misused just to harass people.
It is also important to look at the different individuals and groups which have been offended by the roast. Religious groups top the list, including Brahman Ekta Seva Sansthan, Maharashtra Christian Youth Forum, Chris-tian Reform United People Association and United Christians Forum. In a recently relea-sed documentary called I am offended, G Sampath, author of How to Make Enemies and Offend People, says: “Offense-taking is an industry today. It requires no investment, it doesn’t even require brains. But it’s giving you tremendous pay-off.”
Political parties are also quick to take offense. Predictably, the Maharashtra Navnir-man Sena politicized this issue and threatened that the films of those actors present at the AIB show would not be allowed to release in Mumbai until they apologized.
Even ordinary people jumped on the roast bandwagon. RTI Activist Santosh Daundkar went to the court, arguing that the show was “vulgar, obscene and pornographic” and appealed to the court to ask the Police to book AIB and other people related to the show. Eventually he won and FIR was filed against 14 people, including Alia Bhatt and Deepika Padukone, who were just sitting in the audience. Sharmila Ghuge, professor at Jitendra Chauhan Law College, filed a PIL in the Bombay High Court seeking action against AIB. She also wants the government to put in place a system to monitor videos uploaded on platforms like YouTube.
Salman Rushdie had to withdraw from the Jaipur LitFest in 2013, while Taslima Nasreen was boycotted in West Bengal
Finally, comes the state. More often than not, the state is not an active participant in attacking artistes. But in AIB’s case, after initial reluctance to get directly involved, the Maharashtra government did launch a probe. The state also denies artistes protection against the loony fringe, thus resulting in cancellation of shows or boycotting of their work as happened in the case of Tasleema Nasreen in West Bengal and Salman Rushdie at the Jaipur Lit Fest. Stand-up comic and AIB founder Gursimran Khamba says in the documentary, I am offended: “The state never directly assaults you. The state will find people through which it will assault you.”
So each time a filmmaker, an author, a lyricist, a painter or a comedian exercises his right of free speech and expression, he is up against so many elements—religious groups, political parties, individuals and the state. However, in the absence of clearly crafted laws, an artiste can only depend on courts for their interpretation of artistic freedom.
In AIB’s case, the Bombay High Court has restrained the Mumbai and Pune Police from arresting any of the 14 named in the FIR till March 14. Hopefully this won’t be a temporary relief and freedom of speech will be upheld.
CRACKING THE WHIP
Activists too have been hounded over free speech. These include:
In January 2014, the Ahmedabad Police registered an FIR against Setalvad and her husband, Javed Anand, for allegedly cheating residents of Gulbarg Society of money collected by Sabrang Trust and Citizens for Justice and Peace in 2008. The money was meant for a “Museum of Resistance” dedicated to the riot victims of 2002, which did not materialize. This FIR was registered in response to a nine-month-old complaint by some former residents of Gulbarg, who alleged that they were not being given the money collected in their name.
Ahmedabad Police’s Crime Branch took no action against Setalvad for nine months. The Gujarat Police reportedly sprang into action after Setalvad and Zakia Jafri, widow of Congress leader Ehsan Jafri who was killed by a mob in 2002, went to Gujarat High Court demanding framing of charges against Narendra Modi, who was the then chief minister of Gujarat. On February 10, 2015, Gujarat Police personnel landed at Setalvad’s residence to arrest the couple after the high court refused to grant them anticipatory bail in the case of alleged embezzlement of over Rs. 1.5 crore.
The Supreme Court stayed her arrest and, subsequently, extended the relief. In the apex court, solicitor-general Tushar Mehta representing the Gujarat Police went to the extent of revealing the items that Setalvad had allegedly bought with the trust money: “From the scrutiny of credit card payments, the most shocking revelation came from the payments made towards wine and liquor purchases from Chincholi Wines, Mumbai, and duty free shops of Mumbai airport, movie tickets, regular hair salon and grocery expenditure.”
Kapil Sibal, representing Setalvad and Anand, said that no more than `5 lakh had been collected for the museum. He claimed that the Gujarat Police had filed an FIR complaint written on a forged letterhead of Gulbarg Society to hound Setalvad for the work she had done to get justice for the victims of the massacre in the society.
On January 11, this Greenpeace activist was offloaded from a London-bound plane at Indira Gandhi International airport as she figured in the no-fly list of the Intelligence Bureau (IB). According to The Indian Express, while issuing the lookout circular, the IB used the word “etc” to classify her in an internal order of the Ministry of Home Affairs (MHA). This
category was used as there were no criminal cases against her.
Pillai was on her way to the UK to address British parliamentarians on human rights and forest rights violations by a subsidiary of a British registered company—Essar Energy—in the forests of Mahan in Madhya Pradesh. Greenpeace in a press release said: “Pillai’s offloading is a not an isolated case…. several Greenpeace employees have been harassed…. While there have been midnight arrests of peaceful forest rights activists in Singrauli, Madhya Pradesh, many Greenpeace UK employees have been questioned at Indian airports. One such employee, Ben Hargreaves, was deported back to the UK without being given any reason, even though he had a valid visa.”
On January 27, Pillai filed a writ petition in the Delhi High Court challenging her arbitrary offloading. The Union government, on its part, told the court that they would withdraw the lookout circular against Pillai only if she gave an undertaking that she wouldn’t depose before the UK parliamentary committee on violations in the country. Pillai refused.
— With inputs from Shailendra Singh