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  Opinion   Oped  20 Feb 2018  Filmmakers’ issues: Free speech vs right to trade

Filmmakers’ issues: Free speech vs right to trade

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com
Published : Feb 20, 2018, 2:54 am IST
Updated : Feb 20, 2018, 2:54 am IST

It is for the courts to decide in every case whether a restriction is reasonable or not or whether it is within the permitted limits.

Most of the cases that come up before the Supreme Court claiming the protection of the freedom of speech and expression — also involving the freedom of trade — relate to newspapers.
 Most of the cases that come up before the Supreme Court claiming the protection of the freedom of speech and expression — also involving the freedom of trade — relate to newspapers.

Is the right to make a feature film like Padmaavat for commercial exhibition protected by Article 19(1)(a) of the Constitution of India that guarantees to all citizens the right to freedom of speech and expression, or is that right predominantly a “freedom to practice any profession, or to carry on any occupation, trade or business” guaranteed by Clause (g) of that article?

The right to free speech and expression can be restricted — only to a reasonable extent, of course — on specified, stringent grounds , such as, in the interests of “the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence” . However, in the case of freedom of trade or business, reasonable restrictions can be enforced “in the interest of the general public” — in both cases only by legislative enactments. However, the grounds for placing restriction on this freedom are very general and may include total prohibition of that business in appropriate cases.

 

It is for the courts to decide in every case whether a restriction is reasonable or not or whether it is within the permitted limits.

On January 18 this year, the Supreme Court, while suspending the orders banning exhibition of the film Padmaavat by several states, held that a filmmaker’s right is a form of freedom of expression. Hence, the grounds set out by the states were not good enough to ban its exhibition.

Most of the cases that come up before the Supreme Court claiming the protection of the freedom of speech and expression — also involving the freedom of trade — relate to newspapers. The court recognised that two rights, namely the right to free speech and expression and the right to do business, may be combined in one activity. This started from the case of Sakal (1962), where the challenge was to a government order fixing the price of a newspaper based on its number of pages. The justification by the government was that the restriction was only on the business aspect of the paper — not on its freedom of expression. Discarding the plea, the court categorically held that “the state cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom”. This principle has been repeated in several cases that followed.

 

The court had also occasion to examine situations where the freedoms of speech and trade were inextricably intertwined, as in the case of a levy of entertainment tax on cable television in Tamil Nadu (1997). The court noticed an earlier decision in Indian Express vs Union of India (1985) that “the delicate task of determining when it crosses from the area of profession, occupation, trade, business or industry into the area of freedom of expression and interferes with that freedom is entrusted to the courts” and held that “where the freedom of speech gets intertwined with the business, it undergoes a fundamental change and its exercise has to be balanced against societal interests”. In the case of Ministry of Information and Broadcasting vs Cricket Association of Bengal (1995), one of the judges constituting the bench in the Tamil Nadu case had held: “Providing entertainment is implied in freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, subject to this rider that where speech and conduct of business are joined in a single course of action, the free speech values must be balanced against competing societal interests.”

 

“Societal interest” is thus a new parameter for testing sustainability of intertwined rights.

In this background, there can be little doubt that making of the film intended for public exhibition is a case of intertwining of freedom of expression and freedom of trade. There are many laws in all states authorising their respective governments to impose restrictions, including prohibition of any business activity that may cause public anger and consequent unrest and breach of the peace — and lasting enmity among people — hence against societal interest. The states ought to be better judges on the issue whether exhibition of a film in their territories is against the societal interest. It is no answer to direct: “Hell may break out — you better prevent it by providing police protection to the cinemas”. One must remember that the police may be able to provide protection for a week or two, but the scars of wounds of insult to feelings (if any) will be there for the states to live with for long. The states should be trusted to be the guardians of societal interests.

 

Newspapers and commercial films do not stand on the same footing — in the case of the former, money-making is just incidental, while in the case of films, the predominant purpose is earning money — the target is the box office. Hence the directors’ creative imaginations may run riot and trespass into the privacy of others — only to boost the box office. “Right to privacy” is recognised as a fundamental right by the Supreme Court only recently (Puttaswamy-2017). Since the process of constitutional interpretation is — in the words of the court — “a work in progress”, its implications or ramifications are yet to evolve. Can the right to be left alone include the right of a section of the society to live with dignity shielded from the greed of any commercial venture?

 

Will it not be right to contend that the freedom of speech ends at the stage of certification by the authorities under the Cinematograph Act, and thereafter the commercial activity begins?

Padmaavat was not the last of such films breeding controversy.

A film on Rani Lakshmibai is stated to be on the verge of release and even there it appears that there are scenes that are objectionable from the point of view of the dignity of the Rani.

 “Article 19 (1)(a) is not the guardian of unlimited talkativeness,” observed the late Justice Mathew of our Supreme Court in the Bennett Coleman case (newsprint control, 1972). So it was, and so it should be.

 

Tags: padmaavat, supreme court, freedom of speech