Prem Mardi versus Union of India, Did the Courts failed Scheduled Tribes and adivasis?

Posted Friday October 02, 2015 by CSLRA India

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“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 declares ‘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 approached challenging 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, 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. The judicial approach is to adopt the interpretation which would expand the artistic liberties, in cases where multiple interpretations and inferences of the art work are possible. However, in the instant case, no such inferential process is required as the offences and insults are direct and on the face, without any subtleties or layered meanings. 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 2006(4) ALD 374 in respect of move to ban movie “The Davinci Code” , as well as the Madhya Pradesh High Court in UTV Software Commuication vs. State of M.P AIR 2008 MP 177 when ban was slapped on movie “Jodha Akbar”, upheld the artistic liberties against complaints of presumed offence. The High Court of Delhi had also spared renowned painter M.F Hussain of criminal charges that his paintings hurt religious sentiments, and concluded the decision noting that “A painter at 90 deserves to be at home-painting his canvass”(M.F Hussain vs. Raj Kumar Pandey 2008 CriLJ 4107). 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 the despicable ‘human safaris’, which were voyeuristic trips organized through Jarawa settlements, in the decision L.G Andaman & Nicobar Islands vs. M/s Bare Foot Inns and Leisure Pvt.Ltd (2012) 11 SCC 709.. The high point in the campaign for protection of tribal rights arrived with the decision in ‘Niyamgiri’ case in 2013(Orissa Mining Corporation vs. Ministry of Environment and Forests (2013) 6 SCC 476), 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 (2011) 13 SCC 46, 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, and 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 any 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 ‘’Bandit Queen’ 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 its own guidelines 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.

Manu Sebestian, Advocate, Kerala

Taken from Live Law with credits

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