By Adv. Sanyukta Banerjie.
Nothing falls apart faster in India than roads during rain and religious sentiments during a movie release. Every other day, the dailies report yet another movie producer, director or even the actor (no seriously) grappling with a legal notice and I shake my head thinking “Ah! Well they are still being covered on Page 3. If you start featuring on Page 1 that’s when the shit’s really hit the fan *cough Padmaavati cough Padmaavat*”.
And then inevitably, you, as a media law attorney, get served with one of these missives which make quality legal arguments along the lines of – YOUR MOVIE BAD – MY CLIENT SAD – HOW DARE YOU – DELETE MOVIE. If you think I am overtly simplifying and ridiculing the legitimate claims of affected parties then you are absolutely right. And wrong. Yes I am simplifying and no, these are not legitimate claims by any stretch of imagination or the law. As proof I present to you quotes inspired from real-life legal notices. (*Any similarity to actual persons/ legal notices living or dead is purely coincidental.)
- “My client is the Secretary of Dera Church of Wakf Sena”.
- “My client saw a scene in your two minute trailer in which Aamir Roshan is escaping from the police and runs inside our Beloved O Holy Shrine (BOLS) wearing slippers. As everyone knows no one enters our sacred BOLS wearing slippers. Indeed we are against all forms of footwear. Clearly your two and a half hour long movie is all about sullying our BOLS. Everyone knows how sacred our BOLS are to us so delete everything. Also show us the remaining movie so that we can check if anything else needs to be deleted.”
- “Also get Aamir Roshan to meet my client. Big fan!”
- “If you don’t delete this believe you me I will *veiled threat* because I know *name drop*” [If you were wondering why this write-up uses made-up names, wonder no more.]
And then you begin drafting a delicate reply – a unique tightrope walk that requires you, on one hand, to plead with a thoroughly uncalm person to calm down (we all know how well that ever goes) and urge them to wait for the movie to release, and on the other hand assure them that their claims have not the slightest chance in a court of law and probably throw in some version of a futue te ipsum. Because Dear Religiously Heart-Broken meet Article 19.
Yet the answer to the question can movies be banned in India because they hurt religious sentiments, is the same two word answer your professors had for every legal proposition in your first year of law school – It Depends. What does it depend on? Let’s find out!
1) The Constitution of India
Yes our trusty Article 19 – our fundamental right to freedom of speech and expression comes with…*drum roll* 9 exceptions! These are:-
- the sovereignty and integrity of India;
- the security of the State;
- friendly relations with foreign States;
- public order;
- in relation to contempt of court;
- defamation; and
- incitement to an offence.
Ain’t no such thing as a free lunch. Even constitutionally guaranteed fundamental rights. Read the fine print people!
2) Indian Penal Code
Section 295A penalizes any act that insults or attempts to insult the religion or religious beliefs of any class of Indian citizen. The catch? Only those acts which are carried out with the “deliberate and malicious intention” of insulting the said religion/religious beliefs.
3) Guidelines under Section 5B (2) of The Cinematograph (Certification) Rules, 1983
Contrary to popular belief, the CBFC is neither a debauched liberal haven nor a conservative noose, just a statutory body bound by laws to strike a harmonious balance. And striking this balance includes the CBFC having to evaluate whether a film includes visuals or words that are contemptuous of racial, religious or other groups.
4) Settled Law
Also known in India as What-Did-The-Fox-Supreme-Court-Say? Turns out quite a lot and on more than one occasion. In Ramji Lal Modi Vs. The State of U.P. AIR 1957 SC 620 , the Supreme Court echoed the statutory laws when it observed that “Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section (Section 295A). It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.”
Again in Mahendra Singh Dhoni vs. Yerraguntla Shyamsundar and Ors. AIR 2017 SC 239, the Supreme Court observed, “…that Section 295A does not stipulate everything to be penalised and any and every act would not tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens.” For the uninitiated this was a suit filed because a Business Today cover featured Mahendra Singh Dhoni in Lord Vishnu’s avatar and captioned “God of Big Deals”, had hurt the petitioner’s religious sentiments. Gainful Employment Achieved – Level 100.
Basically TL;DR: Constitutional guarantee of freedom of expression is not absolute. It is subject to reasonable restrictions such as the Indian Penal Code which penalizes acts insulting religion and religious faith. Yet, every act cannot be penalized. An unintended insult to a religion will not qualify.
However amidst all this legal navel-gazing… mob justice travels halfway around the world while the law/judiciary is still putting on its shoes. Which is why almost every such legal notice is followed by a long client call which is some version of “Can you just please just stall this till my movie releases?!” So I send out a holding reply. Or a detailed reply. It depends…
About the Author:
Sanyukta Banerjie is an Intellectual Property Law and Media Law Attorney, based in New Delhi. She’s a Gujarat National Law University alumna, with a master’s degree in Intellectual Property Law and Technology Transfer from National University of Singapore.