My Lords and Ladies...
The reasoning behind the Honorable Judgment of the 'anticipatory bail' application of the makers of the movie 'Tandav' and the responsible head of its exhibiting platform, looks a bit strange and atypical. No doubt that there are reasonable restrictions to free expression that are guaranteed in the Constitution of our country - restrictions pertaining to matters of integrity of India, public order, friendly relationship with other countries, decency or morality, incitement to violence or issues that are mentioned in the various laws that the state has passed. The Indian Penal Code (IPC) makes it an offence to hurt sentiments of religious communities or to commit any act that is prejudicial to the 'maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility' and to cause 'enmities' between two communities'. The Scheduled Caste and Scheduled Tribe Act (SC/ST) punishes any non ST / ST person for publicly intimidating or for uttering derogatory statements against any member of the SC / ST community. These largely were the grounds on which multiple F.I.R.s against the makers and exhibitors of 'Tandav' were filed.
Recently, the anticipatory bail of the said persons were denied by the Honorable Allahabad High Court which upheld that the movie hurt the religious sentiments of the majority community infringing upon their fundamental rights and had the potential to disturb public tranquility by causing enmity between two communities. Such a conclusion was based on some key scenes referred to in paragraph 12 of the Honorable Judgment. In this paragraph four scenes whose dialogues are objectionable are listed out. The Honorable Court thinks that these dialogues are detrimental to the 'maintenance of harmony of different religious groups or castes or communities' and are 'bound to hurt the sentiments of the majority community'. The said scenes involve scripted characters who have been given names of gods of the major community. These scripted characters either have highly animated views on the social stratification of the society that has resulted in unequal power equations between communities or have enacted the roles of gods in a performance on a college stage where they make a strong case for equality amongst communities making references to contemporary times and events.
The Honorable Judge in paragraph 14 of his Honorable Order explains the grounds on which these scenes are seen to be as troublesome. The first scene that it mentions is long and has two scripted ordinary characters of the movie - Vishal and Shiv, who are playing the roles of Sage Narad - the eternal cosmic messenger and Shiva - one of the revered gods, respectively. These scripted ordinary characters in the movie - one of them having a god-name - are playing divine characters in a drama that is being staged in front of an appreciative college audience. The scene starts like this - Lord Shiva played on a stage by character Shiv is worried that the popularity of another god, Lord Rama has increased on social media over the years and Sage Narad, played on stage by character Vishal, suggests that as a counter the former should post something sensational on the net so that his (On stage Lord Shiva) popularity increases. And when the audience who is watching the drama performance in the movie claps and cheers on these dialogues, the Honorable Judge's case is that the 'esteemed and revered characters of the faith of the majority community of India have been lampooned and portrayed in a cheap and objectionable way.'
This seems to be a far-fetched interpretation, as the claps and the cheers by the spectators within the movie are done for the performance of a drama that is being staged by the other characters of the movie. The Honorable Judge mistakenly infers that they are being done against the divine characters - the gods themselves - who are 'revered by the majority community'. Further, the Honorable Judge makes another preposterous assumption that the reference to Lord Rama by the characters in the movie who play gods on stage, is alluding to the construction of the actual Ram temple currently being planned in Ayodhya. Therefore, by default, the 'lampooning' that the audience within the movie has indulged in by cheering and clapping at the performance that they are seeing on stage which has dialogues on the popularity of Lord Ram in present times, is actually an insult to the construction of the temple. Whereas a careful reading of the plot of the scene and the understanding of the flow of the dialogues uttered therein it becomes clear that all that the enacted on-stage gods have done in its beginning is to have highlighted the fact that Lord Ram is popular on the internet, these days - nothing more or nothing less.
Even assuming that a connection to the construction of the Ram temple is deliberately hinted at by the movie maker and that there is the aforesaid 'lampooning' involved, prima facie the structure of the scene plot is such that it is clear that it is the audience within the movie who is watching the staged drama that is involved in the said 'lampooning', it might or might not be the movie maker who is doing so. Now, that begs another question - how does one decide if it is the characters who are 'lampooning' the gods or if it is also the movie maker? To determine this one has to have an understanding the language of cinema. There could be subtle micro level tools used in the movie that could betray the movie maker's position. Just to give a crude example - as the audience is laughing and clapping the sound in the scene could suddenly fade off to let the audience just see the people laughing in slow motion but not hear them. Or while the people are laughing, the movie might cut to the extreme close up of laughing faces and mouths, with an echo given to the sounds of the claps and laughs. There could be many other ways to do it, but one must design that extra underlining that is involved, that which could betray the movie's intention. That extra underlining has to be recognized by the audience who is seeing the movie before any stand is taken on it. While unilaterally deciding that it is the movie maker who is endorsing the 'lampooning' of gods, the Honorable Judge does not seem to have taken into consideration these crucial factors involving film appreciation and it's reading. Can we then ridiculously extend the argument to every movie that has a rape or a murder in it and conclude that the movie maker endorses such violent acts?
Later in paragraph 19 (i) of the order the Honorable Judge quotes the Supreme Court Judgment in the Amish Devgan case where among other things it has held that tolerance would also mean that 'all persons or groups are equal even when all opinions or conduct are not equal.' With a cursory reading of scene one in its entirety - as listed in paragraph 12 of the Honorable Judgment - it is clear that the actors who are playing gods on a stage within the movie - presumably in a college function - have concluded and made it clear that the 'freedom' that the students are asking is not against the country but it is the freedom that is to be attained on people being equal within the country and amongst groups. This thought brings this scene in tune with the intention behind the Amish Devgan Judgment - that tolerance is also when all groups are equal. Yet, the Honorable Judge sees this scene as "likely to cause disturbance and threats to public order" mainly because he has made up his mind that in the scene the Hindu gods and goddesses are referred to in a 'berating' manner. And what exactly does the Honorable Judgment mean by this 'berating' manner? The scripted characters in the movie who are playing the roles of gods on their college stage are seen making 'inflammatory' speeches by asking the other to tweet against the students while dubbing them as 'traitors and raising slogans of freedom'. The Honorable Judge also assumes that the reference here is to the students of Jawaharlal National University (JNU). It is because of this conclusion he comes to a baseless deduction and writes, 'and therefore, it can be considered to be a message of hate advanced through the movie". So, what exactly is the hate speech here? Is it that the characters playing gods on stage advise each other to tweet about college students while branding them as 'traitors' or is it a hate speech because a reference to JNU in inferred? Anyone's guess.
Another scene of the movie quoted by the Honorable Judge has Devakinandan - quite possibly a dominant upper caste character boasting and reminding Kailash, possibly a person not from the upper caste, about the power hierarchy embedded in their relationship. The Honorable Judge acknowledges that Devakinandan and Kailash are two scripted ordinary characters in the movie and that, as he rightly points out in the Honorable Order, the scene's dialogues are 'insidious' in nature with regards to caste. Again, the moot point would be this - does the movie maker endorse the 'insidious' nature of the dialogues that belittles the lower caste or is this simply a character trait that the movie tries to highlight? These are purely cinematic narrative matters that the Honorable Order and the Honorable Judge could be simply oblivious of. Or maybe it could be so that they have conveniently refused to tread this path because if they did so they would then be open to the possibility of not mixing up the 'insidious' nature of the characters with that of the film makers. If no connection is found between the two, how then could the movie makers be indicted? The Honorable Judge is absolutely spot on when he says that 'these characters (gods) are part of religious faith of majority community'. But to conclude that the use of these names are 'offensive' in nature and thus is 'bound to hurt the religious sentiments of the majority community' - because the ordinary scripted character is being 'insidious' in nature with regards to caste - is a flawed argument. It makes the mistake of confusing the revered gods with the scripted ordinary characters in the movie and that too in a scene that dutifully depicts the horrors of the existence of stratification of communities.
These scenes, says the Honorable Judge in paragraph 19 (ii), "are not claimed as part of entire movie and necessary for conveying the message which the film overall conveys." For one, the Honorable Judge has not dwelled in his Honorable Order as to what the movie in totality conveys. This is a mandatory process that needs to be undergone before anyone decides and declares if the scene fits into the overall thematic scheme of the movie. The Honorable Judge might have based his argument on the fact that the defendants have not argued that these scenes are integral to the entirety of the movie and the message it is conveying. If so, it can be seen as a mistake - legally for the defendants - as the Honorable Judge has implied. It could also be a mistake from the narrative point of view for the movie makers. Why have any sequence or a part of the plot that does not fit into the whole picture? Aristotle opines that those portions of the plot that are not a part of the whole, have no business to be in the whole. Not that the Honorable Judge has quoted Aristotle as per section 57 of the Indian Evidence act; but what he has indeed quoted under this section - as an evidence - is the Chicago address of Vivekanand wherein he had said that the goal of all the religions is the same - to find the ultimate truth or God. Though it does not make any such opinionated statement on religions, our Constitution does guarantee equality of religions.
|The Gospel according to St. Mathews|
The Honorable Judge invokes section 3 (i) (r) of the Scheduled Caste and Schedule Tribe (SC / ST) Act in paragraph 19 (v) of the Honorable Order. It is a section that criminalizes the intentional public intimidation or insult of a SC / ST by a non SC / ST. A dialogue from episode six of the movie is referred to wherein one character named Jigar mentions to another character Sandhya that when a man of lower caste dates a woman of higher caste, he is taking revenge for the centuries of atrocities from that one woman. Now, if Jigar is not from the upper caste and Sandhya is an upper caste character the said dialogues can be described as an intimidation from a member of SC / ST on a non SC / ST woman. Where does section 3 (i) (r) of the SC / ST Act come in here as the sub section pertains to the intimidation of an SC / SC by a non SC / ST? On the other hand, if Sandhya is not from the upper caste the said dialogues might not have an intimidating effect on her, because by its very nature it is meant to intimidate the upper class and not otherwise. So then, how can section 3 (i) (r) be applied?
Yet the Honorable Judge says, "there is clear intention of humiliating the women of scheduled caste" and that talking of centuries old revenge would affect "social harmony". When the Honorable Judge declares with reference to this scene, "The aforesaid scene shows the members of scheduled castes in the manner of intentional insult with the intent to humiliate in a movie meant for public view and therefore, the implication of the applicant for offences u/s 3(1)(r) of the S.C./S.T. Act is made out.", he probably implies that the character who mouths the said dialogues in the movie is not from the SC / ST category and the very fact that he is asked by the movie makers to mouth such a dialogue that intends to seek revenge for the centuries of humiliation to the ST / SC category, is itself an insult to anyone from the SC/ST caste who might or might not be watching the movie. Well, as the Facebook jargon says, 'it's complicated' or maybe even confusing.
The cream of the Honorable Judgment is reserved for paragraph 20 and 21. They are pure examples of essay writing, full of opinions and some false facts - all in the name of 'judicial notice'. Had they not been in this Honorable Order, the two Honorable Paragraphs could easily be mistaken to be taken from an editorial of a online portal. A 'judicial notice' allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. Under this guise the Honorable Judge assumes 'common knowledge' to 'establish' without giving any 'evidence' that the 'crimes' that the makers and exhibitors of 'Tandav' have committed helps people whose intention is to spoil the international image of India by drubbing it as an intolerant nation. Does't this sound familiar? The Honorable Judge further states some historically inaccurate facts by claiming that western movie makers have "refrained from ridiculing Lord Jesus or the Prophet" oblivious - deliberately or otherwise - to the controversial depiction of Jesus Christ in Martin Scorsese's 'The Last Temptation of Christ' (1988), Monty Python’s 'Life of Brian' (1979) or Mel Gibson's 'Passion of Jesus' (2004), not to speak of some European filmmakers like Paolo Pasolini or Lars von Trier. The Honorable Judge might not even be aware of a film made in 1976 by a Syrian born Hollywood film maker Moustapha Akkad called "The Message', which was on Mohamed Prophet. The film had earned the wrath of the Muslim world and for which Akkad had to pay with his life.
The Honorable Judge's 'judicial notice' further laments that ridiculing of Hindu gods and goddess in movies have inspired the comic stand ups like Munawar Faruqui to take that path. There is a mention of his event in Indore and his arrest for doing so - matters portrayed as a 'fact' that is established by 'common knowledge' legitimized by its inclusion in 'judicial findings' section in the Honorable Order. The truth is that Munawar was arrested because of a mere apprehension that he would indulge in such a ridicule. The police do not have any video evidence of Munawar ridiculing Hindu gods, simply because he had not done so at the Indore event. Further, the Honorable Order makes a passing reference to the bail that he has been granted. The Honorable Judge's wrath in paragraph 22 is also targeted against movies like Raj Kapoor's 'Ram teri Ganga maili', 'Satyam Shivam Sundaram', Rajkumar Hirani's 'PK' and Umesh Shukla's 'Oh My god' which are termed as films that show disrespect to Hindu gods and goddess with the intention to make money - an accusation he also throws on Munnawar. The Honorable Judge sees a sinister design behind all these - and argues that this tendency to be curbed lest our younger generation gets corrupted and forgets our social and cultural heritage.
Thus, the anticipatory bail against the makers and exhibitors of 'Tandav' gets rejected.
The prosecution had argued in the Honorable Allahabad High Court that the existence of multiple F.I.R.s against the movie proves that the dissatisfaction against it for hurting religious sentiments and causing enmities between communities is wide spread. The question as to whether the religious sentiments were actually hurt or not has not been addressed in the Honorable Order. Is it sufficient for a person to say that his / her religious feelings are hurt in an F.I.R for the Allahabad High Court to assume it to be true based on its own interpretation of what had caused such a hurt? There seems to be no need for the complainant to prove that he/she was hurt by showing an evidence of such. Nor is the Honorable Judge asking for it, if we go by his Honorable Order. Notwithstanding my reservations on the qualities of movies and web series that are being exhibited presently in many online platforms, as a non believer or a skeptic if I declare and file a counter complaint that my '(non)religious sentiments' are hurt by these multiple frivolous F.I.R.s, would that also be taken seriously? This becomes all the more crucial in these days when the lodging of such multiple frivolous F.I.R.s can be coordinated efficiently in a large scale by sharing tool kits on the net that would guide and ask people to indulge in such coordinated actions.
My Lords and Ladies, this case seems fit for an Honorable Appeal in the Supreme Court.