The evolution of the Indian judiciary since independence is nothing less than spectacular: the institution which the Indian Constitution created to safeguard the rights of citizens has now transformed itself into an indisputable power holder influencing policies of the Executive.
From laying down guidelines to control air pollution to censoring films, the Indian judiciary has its claws everywhere. The recent incident of the Bombay High Court ordering excisions in the film Jolly LLB 2 is patently illegal and witnessed a colossal wastage of judicial time.
Jolly LLB 2’s Not So Jolly Journey
Subsequent to the certification of Jolly LLB 2 by the Central Board for Film Certification (CBFC), a petition was filed alleging that the film was certified in violation of Section 5B of the Cinematograph Act, 1952 that prevents the certification of films that involve defamation or contempt of court.
Admitting the petition, the Bombay High Court appointed a committee to watch the film and report as to whether it contained any objectionable content.
The contention of the producers of the film was that since a certificate had already been granted by the CBFC declaring the film to be fit for screening, the Court had no jurisdiction to appoint another committee for the same purpose.
The Court held that the Committee could, in fact, suggest changes. Thereafter, the Court directed the petitioner to cut 4 scenes from the movie and also directed the CBFC to re-certify the film after the cuts were made.
The first and second scenes that the Court ordered to be cut were one where the protagonist of the film approaches a dais in a courtroom and signals to his client, following which the protagonist’s client, in the second scene, hurls a shoe at the bench.
The third scene that the Court ordered the respondent to delete was one where two lawyers discuss the aforementioned incident and one informs the other that the incident was pre-meditated.
The Court reasoned that this was defamatory to ‘the lawyer’s profession’. Lastly, another scene where a lawyer jumped on and off a dais was also required to be cut.
A Flawed Decision
There are more than a few reasons to say that this decision of the Bombay High Court is a flawed one.
- The Cinematograph Act, 1952 (“the Act”) makes provisions for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs and introduced the Board of Film Certification for the said purposes. Section 5B (1) of the Act states that a film shall not be certified for public exhibition if it violates any of the conditions mentioned therein. The conditions mentioned are none other than the restrictions on freedom of speech and expression as provided under Article 19(2) of the Constitution. The Act makes it amply clear that only the Board of Film Certification has the power to censor movies and suggest excisions (the debate that the Board of Film Certification has no power to suggest excisions is outside the scope of this article).
- Article 19(2) of the Constitution reads as follows:
Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause 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. (emphasis applied)
3. Article 19(2), inter alia, states that only a law can impose reasonable restrictions on right to freedom of speech and expression. The Bombay High Court’s order is nothing but a restriction on freedom of speech and expression. Moreover, it is pertinent to note that an order of a court is not “law” for the purposes of Part III of the Constitution which defines fundamental rights. Thus, the Bombay High Court’s order mandating excisions in Jolly LLB 2 was passed without any authority.
Juristocracy in India
Ran Hirschl, a renowned professor of political science and law, uses the term “juristocracy” to explain the transfer of an unprecedented amount of power from representative institutions to judiciaries. Indeed, his discussion was focused on the interpretation of bills of rights and the consequential judicial activism by courts in different countries.
Extending it a bit further, I am of the view that the unparalleled rise in judicial activism in India has resulted in a unique form of juristocracy where the judiciary has styled itself as a hybrid form of Executive and Judiciary.
The Supreme Court has been adjudicating polycentric issues, which are ideally in the Executive’s realm, for some time now. The imposition of diesel cess on diesel vehicles above 2000 cc is a good example of the Supreme Court deciding polycentric issues. While doing so, the Supreme Court violated Article 265 of the Constitution which states that no tax shall be levied save by authority of law.
Next in line is the Supreme Court’s multiple orders controlling the affairs of BCCI, which is purely a private society registered under the Tamil Nadu Societies Registration Act, 1975. Equally unacceptable is the order of the Supreme Court making it mandatory to play the National Anthem before every feature film at movie theatres.
There are umpteen similar cases where the Supreme Court has issued guidelines which were justified by stating that there was policy vacuum which the Executive failed to fill. This is hardly a justification to violate the doctrine of ‘separation of powers’. The Constitution of India earmarks separate duties for each of the three organs viz the Executive, Judiciary and Legislature.
It is high time that the Courts in India follow this doctrine or else the public will lose their respect for our judiciary. Screening a satire on legal profession does not bring disrepute to the lawyers’ profession or the Courts in India.
(The writer is an Advocate, Madras High Court. The author acknowledges the assistance of Sarangan Rajeshkumar, student of law. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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