The Punia precedent

Published : Sep 09, 2011 00:00 IST

P.L. Punia, who heads the National Commission for Scheduled Castes, talking to the media in New Delhi on August 12. - MANVENDER VASHIST/PTI

P.L. Punia, who heads the National Commission for Scheduled Castes, talking to the media in New Delhi on August 12. - MANVENDER VASHIST/PTI

NEITHER the governments of Uttar Pradesh, Punjab and Andhra Pradesh nor the political adventurers would have created such a furore over the film Aarakshan if the politician heading the National Commission for Scheduled Castes, P.L. Punia, had not abused his office to mount the agitation.

The commission, set up by Article 338 of the Constitution, has three precisely worded duties under Clause (5): namely, (a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes; (c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes.

He has no right or power to entertain complaints about movies at all, least of all those which have received a certificate for exhibition from a quasi-judicial body, the Central Board of Film Certification (CBFC), set up by law, the Cinematograph Act, 1952.

So utterly ignorant is this pooh-bah, Punia, that as well as a brazen violation of his charter, Article 338, he lumps anti-Dalit with anti-reservation. Any utterance that is anti-Dalit is an offence under the Indian Penal Code, which strictly defines offences that can hurt feelings Sections 153A, 153B and 504. These provisions are not used to curb communal hate groups. Politicians in power extract mileage by banning books or movies and brandish the cuts they secure to burnish their fading credentials.

Article 338 was amended in 1991 to replace a special officer for the Scheduled Castes and Scheduled Tribes. Article 338-A establishes a National Commission for Scheduled Tribes. There are besides the National Commissions for Minorities and for Woman. Can their Chairpersons follow the Punia precedent and begin attacking movies or telecasts?

Aarakshan has scenes that show how the S.Cs were treated in the past the businessmen who did not want their children to sit with Dalit children who stink. It is sheer illiteracy to suggest the film extols such conduct. Quite the opposite. A film on Gandhi's struggle for the eradication of untouchability will perforce have scenes showing the disgraceful treatment meted out to them for centuries.

The Chairperson of the CBFC, Leela Samson, deserves high praise for her principled stand: When you show a certain situation, you must show reality as it is. She added: I don't think the film is anti-Dalit.

Punia's cat came mewing out of his bag when he said: The film ridicules the rights given to the underprivileged by the Constitution as well as the Supreme Court. This is a matter of shame for the nation as a whole. The intemperate language and the shameless violation of Article 338 brand him unfit for the office. He held a press conference and issued a press note after sending cheekily a summons to Leela Samson.

Since he cites the Supreme Court, it bears mention that the court upheld the right of a film producer whose film was explicitly against reservation. It was in respect of the Tamil film Ore oru gramathile ( S. Rangarajan vs P. Jagjivan Ram & Ors. (1989) and Supreme Court Cases 574). There can be two opinions on reservation, and a film producer has as much right as an author, journalist or any other citizen the film actor included to criticise reservation. The court said: In a democracy it is not necessary that everyone should sing the same song. Courts have, in the past, upheld films that espoused the communist ideology and even revolution, without incitement to violence.

The Supreme Court passed strictures on the Tamil Nadu government's affidavit which cited complaints and threats by the Republican Party of India to use violence. What it said then ( March 30, 1989) is very relevant now: We want to put the anguished question, what good is the protection of freedom of expression if the state does not take care to protect it?.... Freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would be tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed against the state. The state cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression. This right cannot be held to ransom by an intolerant group of people.

What if such people came to hold office as Ministers of the State? One regrets producers granting them the facility of screening the film and, worse, accepting cuts. Faced with a situation in which the state itself is complicit, they prefer the cuts to letting crores go down the drain. One regrets this but one must not condemn the producer, especially one like Prakash Jha, who has a fine record of films of social relevance.

India owes a lot to its film industry. Indian films and actors are household names in Pakistan. The time is come for that industry and civil society emphatically to declare never, never again. The existing system of film censorship is scandalously unconstitutional. A small group within the film industry should work quietly to suggest reforms.

State governments simply have no power to ban a film. Under Section 13(1) of the Cinematograph Act, the power belongs exclusively to the district magistrate to suspend the exhibition of a film in his district if there is a genuine fear of breach of peace.

This power cannot be usurped by the State government. As Home Minister P. Chidambaram said on August 16, even the Central government cannot usurp the discretion vested in police authorities. Furthermore, under Clause (2) of Section 13, the magistrate's order is subject to confirmation by the Central government. What has New Delhi to say about the ban on Aarakshan by Uttar Pradesh. The Central government's silence is deafening.

A.G. Noorani
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