The Padmavati Controversy: The law on the issue

I have always believed that militant religiosity mixed with right-wing nationalism is a dangerous cocktail to supply to the citizenry. These emotions evoke powerful reactions in people who suspend even their intelligence and empathy to make provision for ridiculous ideas of normative justice. In this light, I believe that the BJP has shamelessly pandered to our country’s worst impulses for the transparent purpose of power accumulation. It’s not ingenious. Several parties around the world have won elections appealing to the country’s intellectual lowest common denominators. It’s a dangerous game that can quickly undermine the idea of rule of law. Yes, I am a Hindu and I am patriotic, but I am also a constitutionalist and believe in the system of laws that our Constitution sets up. Thus, first and foremost, this piece is dedicated to understanding the law on the controversy surrounding “Padmavati”‘s release.
The system of laws set up a statutory authority called the Central Board for Film Certification that must issue certificates to films in accordance with law. Of course, people can challenge the decisions of the Censor Board before a Court of record in our country, but their judgment would be based on precedents, which, will also be analysed here.
The Background
The film portrays Deepika Padukone as Rani Padmavati who was first mentioned in a fictional poem written by Mallik Muhammad Jayasi in 1540 CE. The antagonist in the movie is a shown as Alauddin Khilji played by Ranveer Singh who is enamoured by the queen’s beauty and lays siege to Chittor to acquire her. In order to prevent being defiled by him, it is said that Padmavati and her companions committed mass suicide by burning themselves in a pyre to keep their honour intact. I assume the reader knows of the historic animus that exists between Hindus and Muslims in the fringe religious elements of Indian Society.
I have it from a good source that the initial dismay of the protestors i.e. a romance between Khilji and Padmavati does not exist in the film. The initial controversy was created due to a magazine in Allahabad that ran a picture of the actors who played the roles of Khilji and Padmavati, still in their costume, merely talking to each other. This prompted people to think that there is a romance between them when actually, throughout the whole movie, these two characters are never even in the same room together. This was the categorical statement made by the Counsel for Sanjay Leela Bhansali Mr. Rohan Lavkumar before the Hon’ble Gujarat High Court. The other objections of the protestors include things like Deepika Padukone’s dancing when noble ladies of those times wouldn’t dance for society. It’s laughable.
Thus, it isn’t inaccurate to say that the historical existence of Padmavati is itself in dispute. I understand that she may have existed and revere the sense of sacrifice and honour that women in those days were overcome with, when they in turn overcame their survival instinct to commit mass suicide in fear that they may become slaves of the invaders. It’s touching and grave. It’s also ironic though how “leaders” of modern India as well as modern day “Hindus” pay homage to a woman’s honour by threatening another woman with decapitation for practicing her vocation as an artist.
The Furore 
Initially, members of the fringe political group viz., the Karni Sena had announced a Rs. 5 crore reward for anybody who cuts of Deepika Padukone’s nose and beheads the director Sanjay Leela Bhansali. Thereafter, a BJP office bearer from Haryana said he would double the bounty on their heads to Rs. 10 crore. In a media statement, he said “I want to congratulate the Meerut youth for announcing Rs 5 crore bounty for beheading Deepika, and Bhansali. We will reward the ones beheading them, with Rs 10 crore, and also take care of their family’s needs.” BJP’s Surajpal Amu, the party’s chief media coordinator who made the announcement, also threatened to “break the legs” of Ranveer Singh, who plays the role of Alauddin Khilji. The BJP led Uttar Pradesh government led by Chief Minister Yogi Adityanath, has said it anticipates law and order disruption upon the film’s release. In Gujarat, the ruling BJP has asked the Election Commission to defer the release of the film till after the elections, which would be held next month.
The BJP’s Anil Jain, a senior leader from Haryana, said that though the ruling party is not in favour of the film being released, it does not support the sort of threat issued by Suraj Pal. Obviously, all of these threats are in violation of India’s penal laws. The Ruling party is just not doing enough to reign back their party members and re-affirm to the country that it stands behind the right of a film-maker to make movies rightly embellished for entertainment purposes. I believe that since it’s a not a documentary, it ought not to be held to an ideal where any deviation from empirical history is seen as a deliberate insult to a community.
Now, let us turn again to the law for answers, for that is what we must concern ourselves with. For the law to take cognisance of the beliefs, customs and wishes of every sub-sect of every religion and give it the religious protection envisaged under the Constitution, is not feasible. Various Supreme Court decisions laid down the law to say that for a custom or a practice to have religious protection under our Constitution, it must form part of the religion’s core tenets and not just a fringe belief. Padmavati’s sacrifice is not Hinduism’s underlying philosophy. Our Constitution, which, adheres to equidistant secularism will not trigger state machinery to protect the sensibilities of any one religious identity.
Interestingly, while deciding the legality of the movie “Satyam, Shivam, Sunderam”, Justice V.R. Krishna Iyer (former Judge of the Supreme Court of India) wisely held as follows:
“Art, morals and law’s manacles on aesthetics are sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because a State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics. The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and prescribe heterodoxies.”
The Indian Judiciary has also quite unequivocally presented its opinion on the role of artists (of all kinds) in our society when the Bombay High Court was considering the legality of a movie called “Chand Bujh Gaya”; a feature film produced by Faaiz Anwar. The film dwells on the travails of a young couple -a Hindu boy and a Muslim girl – whose friendship and lives are torn asunder in riots in the State of Gujarat. The Hon’ble Judge held as under:
Artists, writers, playwrights and film makers are the eyes and the ears of a free society. They are the veritable lungs of a free society because the power of their medium imparts a breath of fresh air into the drudgery of daily existence. Their right to communicate ideas in a medium of their choosing is as fundamental as the right of any other citizen to speak. Our Constitutional democracy guarantees the right of free speech and that right is not conditional upon the expression of views which may be palatable to mainstream thought. Dissent is the quintessence of democracy. Hence, those who express views which are critical of prevailing social reality have a valued position in the Constitutional order. History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon.”
Another decision of the Hon’ble Supreme Court in a case relating to a documentary film entitled “A Tale of Four Cities” will shed some legal light on the issue. The legendary Judge, Chief Justice M. Hidayatullah speaking for the Court held as under:
“We may now illustrate out meaning how even the items mentioned in the directions may figure in films subject either to their artistic merit or their social value over-weighing their offending character. The task of the censor is extremely delicate and his duties cannot be subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and forever from human thought and must give scope for talent to put them before society. The requirement of art and literature include social life and not only in its ideal from and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value.
If the depraved begins to see in these things more than what an average person would, in much the same way, as, it is wrongly said, a Frenchman sees a woman’s legs in everything, it cannot be helped. In our scheme of things ideas having redeeming special or artistic ideas having redeeming social or artistic value must also have importance and protection for their growth.
Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concerned, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censor’s scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. No one after viewing these episodes would think that patricide or incest with one’s own mother is permissible or suicide in such circumstances or tearing out one’s own eyes is natural consequence. And yet if one goes by the latter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. It that were so Verrier Elwyn’s Phulmat of the Hills or the same episode in Henryson’s Testament of Cressaid (from where Verrier Elwyn borrowed the Idea) would never see the light of the day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the Back of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of Skulls, must we leave them out of the story because people must be made to view a historical theme without true history? Rape in all its nakedness may be objectionable but Voltaire’s Candide would be meaningless without Cunegonde’s episode with the soldier and the story of Lucrece could never be depicted on the screen.”
I can reproduce, in this piece, several such decisions that display our Judiciary’s progressive views on the rights of film-makers in portraying life through art. The above, however, I think serve us well enough to understand the same.
Whose right is it anyway?
Article 19 (1) (a) of our Constitution guarantees us the fundamental right of “Freedom of Speech and Expression” subject to certain restrictions such as:
 1) Security of State: Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State;
2) Friendly relations with foreign states: Not applicable to the present case.
3) Public Order: This ground was added by the Constitution (First Amendment) Act and signifies “that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.”
4) Decency or morality: One would be hard pressed to justify the calls for people’s head to be chopped off as either decent or moral. 
5) Contempt of Court: Not applicable to the present case.
6) Defamation: A statement, which injures a man’s reputation, amounts to defamation. Since, this law gives you only a personal right to sue, unless the persons depicted in the movie came back to life and sued under the law of defamation, this is also not applicable.
7) Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit an offence. The word ‘offence’ is defined as any act or omission made punishable by law for the time being in force, which would include provisions of the Indian Penal Code relating to criminal intimidation etc. 
8) Sedition: Not applicable since this is a religious freedom issue.
(Emphasis supplied)
The Hon’ble Supreme Court in the case of Sakal Papers (P) Ltd. and Ors. vs. The Union of India, a Constitution Bench held that the only restrictions which can be imposed on the rights of an individual under Article 19(1)(a) were those which clause (2) of Article 19 permitted and no other. 
Therefore, no other restriction on the freedom of speech and expression are legal.
If we forget rhetoric for sometime, I believe that the law on the issue settles the debate quite clearly. On even a perfunctory analysis of judgments of the Hon’ble Supreme Court itself (which under Article 141 of the Constitution, lays down the law for the country), it is quite clear that the movie ought to be green-lit with the creative license it deserves.
Thus, while the freedom of speech and expression of the makers of the film are protected under our  Constitutional scheme, the same is not the case for various elements of our country’s political leadership. Their speeches and media statements would squarely fall under the restrictions to freedom of speech and expression that are illegal. The perpetrators would consequently also be guilty under various provisions of the Indian Penal Code relating to incitement of violence, for which, complaints before the Criminal Courts can be filed.
The BJP’s response to the politicians making these inflammatory statements are weak and a disappointing vacillation. I was always proud of India’s rich culture of civil liberties, heterogenous demographic and its liberal discourse on religion. I’m no longer so sure.
– Shrinivas Bobde (23.11.2017)










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