In the 1920s, the Arya Samaj and Muslims were at loggerheads across Punjab. A pamphlet depicting Sita of the Ramayana epic as a prostitute had inflamed passions when a Lahore publisher brought out a book called Rangeela Rasool that showed the Prophet as a worldly man given to ordinary pleasures.
The publisher of the book, Mahashay Rajpal, was tried on the basis of complaints filed by Muslims but was acquitted two years later in 1929 because there was no law on the statute book, the Indian Penal Code, to specifically deal with promoting enmity or hatred between communities. Rajpal was murdered soon after his acquittal by a zealous young Muslim who was then executed after trial.
The significance of this episode is that the British rulers of the time were pressured to add a section to the IPC that made insulting the leaders of any religious community a crime punishable with imprisonment. In other words, hate and hate crime made it to the statute book, imposing a considered restriction on what we now call freedom of speech and expression, or FoE as it is known in cyberspace.
Cut to 1950. India had given itself a constitution incorporating —via Article 19 Clause 1a—freedom of speech and expression in its section of fundamental rights of citizens. The right to free expression was not absolute; it did have restrictions. At the time the Constitution was adopted, Clause 2 of Article 19 read:
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
Meanwhile, Hindu-Muslim riots had shaken up East Pakistan, and refugees streamed into India. Syama Prasad Mookerjee of the Hindu Mahasabha was in Prime Minister Nehru’s Cabinet at the time; the organisation was pretty vocal about its dreams of an Akhand (unified) Bharat. In April, Nehru made a deal with his Pakistan counterpart, Liaquat Ali Khan, to secure the peace. Part of the deal was clamping down on any propaganda for war between the two new nations.
Two days before the pact, Mookerjee resigned over Nehru’s Pakistan policy. From then on he called for a war to reunite the two nations once again. Meanwhile, two Supreme Court decisions of the same year had overturned a ban on a left-leaning journal and pre-censorship of a right-wing journal.
Nehru and Sardar Vallabhai Patel corresponded with alacrity over these developments, and it all came down to the first amendment of the Constitution which added ‘public order’ and ‘incitement to offence’ to Clause 2 of Article 19. Significantly, the restrictions that the amended clause introduced were ‘reasonable’, leaving the door open to judicial review of any related action by the executive.
The clause now reads:
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 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.
Films— like the unreleased Padmavati is alleged to—can threaten public order, decency and morality. The last word on this is with the Central Board of Film Certification, a statutory body established in 1951. Padmavati has not yet been cleared by the board which only last year did not allow the release of a film called Mohalla Assi because it offended Hindu sentiments.
On November 28, the Supreme Court refused—for the third time in November—to ban Padmavati, saying it is the prerogative of the censor board to review the film and make a decision on whether it is suitable for screening. The court also rebuked persons holding public office—read chief ministers of states who have spoken against the film—for their comments on the film.
“When the matter is pending the consideration of the CBFC (Central Board of Film Certification), how can persons holding public offices comment on whether CBFC should issue certificate or not? That will prejudice the decision of the CBFC,” the court said.
And there the matter rests. For now, that is. This means that if the CBFC clears the film, with or without cuts and/or changes, it can be due for nationwide release sometime next month.
Therein lies the rub. State governments have the option to invoke their duty to uphold public order, decency and morality and ban the film. The BJP-ruled states of Rajasthan, Madhya Pradesh and Uttar Pradesh have already indicated so. Congress-ruled Punjab may just follow their cue, as can others like Bihar. Sectarian politics can yield results that overpower any agency of the state.
Even if state governments do not block the film, theatre owners can refuse to screen the film for fear of violence by fringe groups, as was the case with Jodhaa Akbar in Rajasthan nine years ago. That time, it was the same Rajput Karni Sena that had taken to the streets with the all-too familiar complaint of ‘distortion of historical facts’. Thirty theatres in Rajasthan did not screen the movie that year because members of the Karni Sena sent them threatening letters written in blood. Street politics, too, can sometimes beat the state and the operation of the law of the land.
Certified fit for public viewing or not, it is likely that Sanjay Leela Bhansali’s Padmavati will not make it to screens across more than half the country. But the legend of Padmavati that has inspired the protests against the film will live on.
Padmavati is dead, Long Live Padmavati!
By Nardeep Singh Dahiya