Sarkar: Casual registration of FIRs against movies will sound death knell to Freedom of Speech: Madras HC

The Madras High Court recently had occasion to reiterate that the right to free speech and expression cannot be lightly trifled with, while staying criminal proceedings initiated against AR Murugadoss, Director of the Tamil film Sarkar.

In a case reminiscent of petitions filed earlier against other films such as Mersal and IrumbthuraiSarkar‘s criticism of government policies, particularly the freebie culture, had prompted a police complaint against its director, Murugadoss.
However, as with the earlier petitions, the case has only served to reiterate that the freedom of speech and expression cannot be casually restrained. On Friday, Justice Anand Venkatesh stayed criminal proceedings initiated against Murugadoss on a bail plea moved by him, noting that the Director has every right to express his opinion in the movie, under Article 19 of the Indian Constitution.
The Court pointed out,
Giving freebies to the people is more a policy of the Government. Any policy of the Government is subject to public scrutiny and every citizen of the country is entitled to have their own opinion about a policy. The director of the Movie has felt strongly against giving freebies to the people
Some … may support the opinion expressed by the director and some may oppose it. If every person, who is not in agreement with the issue projected in the Movie, starts giving complaint against the director and an FIR comes to be registered on each complaint, it will sound the death knell to the mother of all other liberties namely; the freedom of speech and expression.
The subjective view taken by a movie-viewer cannot act as the basis of criminal proceedings, the Court emphasised.
The complaint only reflects the feeling of the 2nd respondent by watching the Movie. The impression created to the 2ndrespondent [complainant] by watching a Movie cannot be the basis for registering an FIR by the respondent Police and the respondent Police must be satisfied about the various offences stated in the FIR, to have been committed by the petitioner.”
The objectionable movie scenes in question depicted government sops in the form of free mixies and grinders being thrown into fire and destroyed. Certain members of the ruling AIADMK objected to these scenes, alleging that the same was specifically targetted at the party, as it criticised a scheme initiated by former Chief Minister and AIADMK head J Jayalalithaa  in 2011.
In an anticipatory bail plea moved by Murugadoss, Justice GK Ilanthiraiyan had granted the Director interim protection from arrest, while the police was given liberty to register a case against him.
In the meanwhile, Murugadoss informed the  Court that he will not undertake to refrain from criticising the government, as requested by the state. Appearing for Murugadoss, advocate R Vivekanandan told the Court that he is not bound to waive his freedom of speech and expression and that he was well within his rights to make the movie.
Subsequently, a private complainant lodged an FIR claiming that the Sarkar scenes was intended to defame the government and destroy the solidarity and integrity of the nation.
Similar phrasing was used in the plea to revoke the censor board film certificate for the movie Mersal, as the movie criticised the Goods and Services Tax (GST) regime. As with the Mersal case, the High Court found no merit in the apprehensions cited in the instant case as well.
Justice Venkatesh went on to emphasise,
If FIRs are permitted to be registered in such a casual fashion, there is a great peril to an artist whose creativity will be stifled and the hard labour of our freedom fighters and makers of our Constitution will go down the drain. Registration of an FIR in such a cavalier fashion by the Police will directly touch upon the personal liberty of a person guaranteed under Article 21 of the Constitution.”
In Irumbthurai’s case, the catalyst for the plea to halt its release was the alleged criticism of the Aadhaar scheme. The case was dismissed, particularly given that the censor authorities had already cleared the film. The Supreme Court had already laid down in the Padmaavat row that once a movie has been cleared by the censor board, there is little scope for the Court to interfere. Echoing this view, Justice Venkatesh noted,
“… once a Certificate is issued by the CBFC, there is a prima facie presumption that the authority has taken into account all the guidelines including public order.
In the course of staying the criminal proceedings against Murugadoss, the Court also elaborated on the threshold which must be trespassed to justify restricting a person’s freedom of speech and expression.
The content of the expression “freedom of speech and expression” has three steps which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause, howsoever unpopular is at the heart of Article 19(1)(a). It is only when such a discussion or advocacy reaches the level of incitement, Article 19(2) kicks in.
The commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.”
The stay on criminal proceedings against Murugadoss will continue until the petition before the Court is disposed of. The matter is to be taken up again in six weeks.

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