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 Freedom of Expression
Freedom to offend
The Indian Express, India Tuesday, February 26, 2008

Soli J. Sorabjee
The Supreme Court has ruled that "freedom of expression protects not merely ideas that are accepted but those that offend, shock or disturb the state or any sector of the population. Such are the demands of the pluralism, tolerance and broadmindedness without which there is no democratic society". The decision of the MP government to ban Jodhaa Akbar is not only an onslaught on the freedom of expression but is in effect a surrender to intolerant lawless behaviour. It is a pernicious precedent, and the ban should be withdrawn at the earliest, writes Soli J. Sorabjee in the Indian Express

Touchy, aren't we?


Banning ‘Jodhaa Akbar’ is a surrender to lawlessness and intolerance


Our Supreme Court has held that exhibition of a movie is a fundamental right covered under the free speech guarantee enshrined in Article 19(1) of the Constitution. This freedom is not absolute and can be restricted under the heads specified in Article 19(2), two of which are public order and indecency.


The Madhya Pradesh government has banned the exhibition of the movie Jodhaa Akbar, which portrays the marriage of Jodhabai, a Rajput princess, with the Mughal emperor Akbar. We must not forget that any film or novel can have some element of artistic licence. The movie in question does not purport to be a historical account. Besides, historical versions and interpretations vary considerably. It would be presumptuous for anyone to claim to be the sole repository of historical truth.


There have been cases in the past regarding depiction of historical events and personalities. In an article Mahatma Gandhi’s philosophy of non-violence was condemned as pacifism born out of cowardice. A question arose before the Bombay high court regarding the action that may be taken against the writer. The high court in its judgment dated August 2, 1968 in the case of Anant Karandikar laid down certain important principles. It ruled that “merely because the criticism has been made of one whose memory is held dearly by millions of people would not be a ground for coming to the conclusion that the writer wanted to tarnish Mahatma Gandhi’s name”. The high court further observed that “it is the right and privilege of every thinker to express his judgment on historical events in a fearless manner... History is not to serve as the hand-maid of a particular school of thought”.


The telecast of the television series Tamas was sought to be banned. The petitioner’s complaint was that Tamas depicted Hindu-Muslim and Sikh-Muslim tension before Partition and showed the killings and looting that took place involving these communities. Consequently exhibition of the serial was likely to incite the people to commit offences and therefore its exhibition should be banned. The Supreme Court rejected these contentions and held that “viewed from an average healthy and commonsense point of view there cannot be any apprehension that it is likely to affect public order or it is likely to incite the commission of any offence”. The court emphasised that the effect of a book or a movie must be judged by standards of reasonable and strong-minded persons and not of those who perceive insult and injury in any unpleasant or hostile version.


In the present case the chief minister is reported to have said that he saw the movie and found nothing objectionable. The censor board had cleared the movie. What then is the problem? It seems that the movie has angered some sections of the Rajput community according to whom Jodhabai was not married to Akbar but to his son, Jehangir/Salim. According to another section, Jodhabai was not a Rajput princess but the daughter of one of the concubines of Maharaja Bhar Mal of Amer and the film has distorted historical facts to malign the Rajput community. Assuming these assertions are correct, then it is open to these persons to protest against the movie in the print or electronic media and condemn its alleged historical errors and distortions. It is also open to stage demonstrations against the movie and call for its banning. But it is certainly not permissible or lawful to threaten or indulge in violence like damaging or burning theatres where the movie is shown. Moreover, Ashutosh Gowariker, the maker of the movie, in his Idea Exchange with The Indian Express has clarified that he is not claiming to be a historian and his purpose in making the movie is to entertain. An explicit appropriate disclaimer to that effect should put an end to the controversy.


What is disturbing is the reason given by the MP government for banning the movie, namely that “it could lead to law and order problems”. This is patently untenable. A similar situation occurred in Tamil Nadu in 1988 for banning the exhibition of a movie, Ore Oru Gramathile, by a group of persons who regarded its theme and its presentation as hostile to the policy of reservation of jobs in public employment and seats in educational institutions in favour of the Scheduled Castes and backward classes. The Madras high court revoked the certificate granted by the board of censors and restrained its exhibition. In its landmark decision in S. Rangarajan v. P. Jagjivan Ram the Supreme Court reversed the Madras high court judgment. Justice K. Jagannatha Shetty speaking for the Supreme Court rejected the contention that exhibition of the movie was bound to cause violent reactions and reaffirmed the principle that “the standard to be applied by the board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man”. The court ruled that “freedom of expression protects not merely ideas that are accepted but those that offend, shock or disturb the state or any sector of the population. Such are the demands of the pluralism, tolerance and broadmindedness without which there is no democratic society”.


The court further held that “if the film is unobjectionable and cannot be constitutionally r

Author : Mr Sorabjee is a former attorney general for India
Tags- Find more articles on - cultural intolerance | free speech | freedom of speech | freedom to offend | india history | jodhaa akbar | Moghul history

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