As noted above, the impugned order is passed in
exercise of the power of the State to impose restrictions on the
fundamental right of freedom of speech and expression
guaranteed to the petitioner. Since the same is a restriction on
the fundamental right guaranteed to the petitioner under Article
19(1) (a) of the Constitution, the same has to be viewed with
suspicion, and the burden is heavy on the authorities to show
that the restrictions are reasonable and permissible under law.
Though the respondents have attempted to support the
impugned decision by supplementing reasons in the counter
affidavit, I do not propose to advert to the said reasons, for, it
is settled that the orders have to stand by the reasons stated
therein itself. The essence of the impugned decision is that the
contents of the film is insulting and humiliating Hindu religion
and that the film contains scenes which are vulgar and
obscene. To demonstrate the stand that the contents of the
film are insulting and humiliating Hindu religion, it is stated in
the impugned order that the Hindu God Hanuman is shown in
the film as coming in the books titled 'I am a Gay'. Likewise, to
demonstrate the vulgarity, it is stated in the impugned order
that the film refers to masturbating women and homosexuality.
There is no other reference in the impugned order with
reference to the specific scenes in the film which violate the
Guidelines. It is relevant to note that the impugned order bans
the exhibition of the film. If the objection concerns only the
depiction of the Hindu God Hanuman in the manner indicated in
the impugned order and the reference to masturbation of
women and homosexuality, there is no need to ban the
exhibition of the film altogether, for, the objectionable scenes
could be deleted or modified. It is thus evident that the basis of
the impugned order is not as disclosed in the impugned order.
Since the decision is that the film is not fit for public exhibition,
it has to be on the basis that the theme of the film offends the
Guidelines. There is no such statement in the impugned order.
Further, mere reference to homosexuality and masturbation of
women may not amount to obscenity or vulgarity. As stated by
the Apex Court, only if the entire theme is disclosed, the
question whether the reference to homosexuality and
masturbation of women would amount to vulgarity or obscenity
can be ascertained. There is nothing in the impugned order as
to the context in which those references have been made in the
film. True, some persons may hold an orthodox or conservative
view in matters like this, but that by itself is not sufficient to
come to the conclusion that the contents of the film are
contemptuous of religious groups. As held by the Apex Court,
the question whether a scene is vulgar or obscene is to be
determined in the context of the work as a whole. When the
respondents take the most extreme step of banning the
exhibition of the film, allegedly made spending approximately
one crore rupees, according to me, an order in the nature of
one impugned is far from satisfactory. In this context, we must
also bear in mind that freedom to think and act differently is an
essential feature of democracy. The said freedom includes
freedom to react and respond to same situations differently and
distinctly. One cannot expect everybody to express themselves
in the same manner. After all, film making is a creative work. If
freedom to express one's ideas is not conceded, there will not
be any creativity at all. Looking at one or two scenes or
expressions in the film, it cannot be said that the film offends
religious sentiments or that it is vulgar and obscene. In the said
view of the matter, according to me, the matter has to be
reconsidered by the Revising Committee, after affording the
petitioner an effective opportunity for hearing.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
27TH DAY OF SEPTEMBER 2016
WP(C).No. 27418 of 2016 (B)
JAYAN CHERIAN,
Vs
UNION OF INDIA,
