In 2013, Jolly LLB, a comedic satire about the Indian legal profession, ran into legal trouble. Two lawyers initiated “public interest litigation” in the Delhi High Court, asking the Court to direct the Film Certification Board to cancel the license that it had granted to the film under the Cinematograph Act. The Court dismissed the PIL, finding nothing of “public interest” in it, and also finding it to be premature, because it had been filed purely on the basis of trailers. An appeal to the Supreme Court was dismissed in limine, Justice Lodha memorably remarking, “if you don’t like it, don’t watch it.”
Four years later, the sequel, Jolly LLB 2, was not so lucky. This time, another petitioner tried his luck in the Bombay High Court, and after a series of proceedings that I shall proceed to describe, succeeded in having the Court direct “cuts” to the film. In between, the filmmakers went to the Supreme Court, which declined to interfere.
What has happened with Jolly LLB 2 over the last two weeks reveals a confluence between two alarming trends that I have highlighted before: judicial censorship (the Court censoring speech without the authority of any law) and judicial evasion (the Court effectively deciding cases without adjudicating them – i.e., without passing reasoned judgments – simply by keeping them hanging).
On January 20, it was reported that a lawyer had filed a petition before the Aurangabad Bench of the Bombay High Court, arguing that the trailers of the film revealed an “attempt to project the Indian Judiciary and the Indian legal system in a derogatory manner.” The petitioner had a problem with the fact that scenes in the film showed lawyers dancing in the court, and people playing cards, and asked that the word “LLB” be dropped from the the title of the film.
Instead of dismissing this petition at the threshold, the Bombay High Court issued notice on January 27 and asked the filmmakers to reply. On January 30, the Court found that there was a “prima facie” case of contempt of court. It ordered that the petition be converted into a PIL, and constituted a three-member committee (out of which two members were lawyers) to watch the film, and submit their report on Monday (February 6).
Since the film was scheduled to be released on Friday, February 10, the producers moved the Supreme Court on February 3. Before the Supreme Court, it was argued that the Bombay High Court had no jurisdiction to pass the order that it did, because, effectively, it was setting up a parallel censorship mechanism that had no basis in any law. Instead of deciding the jurisdictional question, the Supreme Court reposted the case for hearing on Tuesday, one day after the Bombay High Court-appointed “committee” was to submit its “report”.
On Monday, February 6, the “Committee” submitted its “Report”, recommending the deletion of four scenes from the film. The producers attempted a compromise, promising a partial deletion. The Bombay High Court accepted this compromise, and passed an order requiring deletion and re-certification of the film.
On Tuesday, February 7 (i.e., today morning), the producers appeared before the Supreme Court, and withdrew their petition challenging the Bombay High Court’s order of January 30, while keeping the question of law open.
Judicial Censorship by the Bombay High Court
Let us first consider the Bombay High Court’s actions in finding a prima facie case of “contempt”, and deciding to set up a “Committee” to watch the film. The procedure for the certification of films is contained in the Cinematograph Act of 1952. The Act makes it clear that film certification is to be conducted by a Board of Censors, who are to take their decision in accordance with the freedom of speech provisions in the Constitution, and government-mandated guidelines. If a person is aggrieved by the Board’s refusal to grant a certificate, or to grant a certificate that only allows restricted viewing, she may appeal to an appellate Tribunal (note that the Act only contemplates an appeal in the case a certificate is denied or restricted; it does not contemplate a person appealing in cases where a certificate is granted – for obvious and good reasons).
What role does a Court have in these proceedings? The short answer is: none. The statutory body that decides on the issue of certifying films for public exhibition, and on requiring cuts and modifications, is the Censor Board, with an appeal lying to an Appellate Tribunal (under the Act, the Government also has revisional powers). Under the Cinematograph Act, the Courts have no power to certify, modify, or refuse certification of films.
Of course, this does not mean that the Courts are excluded altogether. Film-makers and producers who believe that the Board – and the Appellate Tribunal – have acted illegally in denying a certificate or requiring cuts, and have violated their right to free speech, can approach the High Court (and, if that fails, the Supreme Court). The Courts can – and have – set aside decisions of the Board and the Tribunal on this basis.
Another way in which the Courts get involved is if, notwithstanding the Censor certificate, there is an allegation that the film has broken the law. To what (limited) extent a censor certificate grants film producers “safe harbour” from prosecution has been long-debated in the Courts, but is not of relevance to this case.
The third way in which the Courts can get involved is if third parties object to the grant of a certificate by the Censor Board, and move the Court against that decision. This is what was famously done in the Phoolan Devi Case. The grant of an “A” certificate to the film was challenged by members of the Gujjar community before the High Court. The High Court quashed the certificate. The Supreme Court set aside the judgment of the High Court.
One might begin by asking what standing a third person has to challenge the grant of a film certificate by a Tribunal to a film-producer; however, the limitless rules of standing that now exist in Indian Courts have made that question more or less redundant. Let us assume, then, that a third person approaches the Court (as in this case), and argues that the Censor Board misapplied the provisions of the Cinematograph Act and the Guidelines, and wrongly granted the Certificate. In the first instance, it is important to note that, in light of the fact that the Cinematograph Act clearly envisages the Board as the certifying authority, the Court should not lightly substitute its views for those of the Board (a proposition that has been repeatedly upheld); the Court should only intervene when there is a clear illegality in the grant of the certificate. There is, however, a further question: what form should that intervention make? It is here that it becomes crucial to note that in the absence of a law that authorises it to do so, a Court cannot censor speech. As I have pointed out before, under Article 19(2) of the Constitution, speech can only be restricted by a “law” made by the “State”. For the purposes of Article 19(2), it has been held multiple times that the Court is not the State, and its orders are not “law”.
Consequently, in the absence of a law, it is not for the Court to order cuts to a film. At best, the Court can find that the Censor Board made an error, point out what the error was, and then remand the case back to the Board to decide once more in accordance with law (the Bombay High Court’s 6th February order does ask the Censor Board to re-certify the film, but also makes it clear what the cuts are).
What the Court certainly cannot do is to set up an entirely parallel censorship authority – in this case, a “committee” of three people to watch the film and suggest cuts. No law contemplates that, and since Article 19(1)(a) is abundantly clear on the requirement of a “law” for censoring speech, the Bombay High Court’s setting up of the “committee” was entirely without jurisdiction. It is an instance of what I have called “judicial censorship“, a trend that is growing frighteningly in recent times.
Judicial Evasion by the Supreme Court
Before the Supreme Court, this exact plea – that the Bombay High Court had no jurisdiction to set up a parallel censorship authority – was taken. To this threshold question, the Supreme Court made a truly astonishing remark: it told the film producers to go and raise this objection at the High Court itself. On being informed that the objection had been made only to be rejected, the Supreme Court then said: “the Committee will make its report on Monday. We’ll keep the matter for Tuesday. Come back to us then if you have a problem.”
In other words, when it was argued before the Supreme Court that the Bombay High Court had illegally set a procedure (for censorship) in motion, the Supreme Court’s answer was “let’s wait and see what the outcome of this disputed procedure is, and then you come back to us.” This is patently illogical. The Supreme Court had to decide the question one way or the other: either to uphold the High Court’s jurisdiction in setting up a “committee”, or to set it aside. It elected to do neither.
However, the Supreme Court’s non-action was scarcely neutral. By the time that the “Committee” released its “report” on Monday recommending cuts, the film’s release date was four days away. The producers had a simple choice: contest this, risk a potentially costly delay and a potential defeat at the end of it – or accept the cuts, and ensure that the film was released on time. In view of everything that the Bombay High Court had done until then, and the Supreme Court’s clear disinterest in protecting the free speech rights of the filmmakers and producers, they took the sensible course of action: accepted the cuts, and moved on.
The Supreme Court’s refusal to hear and decide the question of jurisdiction on Friday, therefore, was a case of what I’ve described as judicial evasion. When faced with a crucial constitutional issue, and one that requires a decisive decision one way or another, the Court’s response is to refuse to decide, and to keep the case hanging. In doing so, the Court effectively decides – in favour of the status quo, which more often than not amounts to contracting rights – but also exempts itself from the necessity and responsibility of giving reasons for what would be perceived as a regressive and anti-rights decision. This is precisely what happened in the Jolly LLB 2 case.
Misapplication of Law
Lastly, not only was the Bombay High Court’s decision to set up a “committee” entirely illegal and without jurisdiction, its two orders – on January 30 and February 6 – are patently erroneous. Its initial prima facie finding of “contempt” on the basis of online trailers goes against a range of Supreme Court judgments that make it clear that films have to be seen as a whole (in fact, this was the exact reason that the Delhi High Court dismissed the PIL against Jolly LLB 1). And secondly, the findings of the “Committee” that four scenes did amount to contempt is erroneous on two counts. First, no deference is shown to the findings of the Censor Board. The “Committee” – whose existence has no legal basis – acts as if it is an entirely fresh censor board, and thus reduces the statutory Board itself to a nullity.
Secondly, it has now been made abundantly clear – both in case law and by a 2006 amendment to the Contempt of Courts Act – that contempt of court is not about protecting the “reputation” of the judiciary, but about ensuring that the course of justice is not interfered with. There is no analysis to show how scenes from a satirical film about the legal profession would have interfered with the course of justice. Is it the (implied) case of the “Committee” and the Court that the “reputation” of the judiciary rests on such fragile foundations that a comic film can end up interfering with the course of justice?
Let us recap what happened to Jolly LLB 2. A film that had been cleared by the Certification Board was nonetheless held by a High-Court appointed “committee”, which was constituted by pure judicial fiat, to be in “contempt of Court”, and required to delete four scenes. This order rested upon no other foundation than the Court telling the film producers, “I am doing this because I can.” The Supreme Court refused to intervene. In other words, through judicial evasion, the Supreme Court enabled the Bombay High Court’s judicial censorship.
And now consider the consequences: this entire incident will give a fillip to persons with “hurt feelings” to file petitions and PILs against films that have been granted certificates by the Censor Board. As long as a petitioner is lucky enough to find judges such as those of the Bombay High Court who agree with him, the film will have to go through a fresh round of reviewing and censoring. And the Supreme Court will not interfere. True, in this case, the “question of law” was left open – but one wonders when it will come to be decided, and in what fashion.
I have written before that over the last few years, it is neither the legislature nor the executive that is the greatest threat to the freedom of speech, but the judiciary. Whether it is Article 21 or Article 142 or PILs, the judiciary is not only failing to act as a shield to protect free speech against State encroachment, but is acting like a sword to cut down free speech. To the framers of our Constitution, who saw an independent judiciary as the only bulwark between civil rights and State power, this would be a matter of great dismay.
And lastly, consider the optics of this whole situation. A film was made that satirises the legal profession. A lawyer filed a petition against it. Two judges decided that this film – which satirised the legal profession – was prima facie in contempt of court. They constituted a “committee” – a majority of whose members were also lawyers – to watch the film and decide whether their own profession was being permissible satirised (in Law School, one of the first principles we were taught is thou shalt not be a judge in thine cause – except, it seems, when you literally can). Two Supreme Court judges were asked to intervene. They refused. The “committee” – with its lawyers – found that the film “defamed” the judiciary, and ordered cuts. These cuts were implemented by two other judges. To a film that satirised the legal profession.
Whichever way you want to slice this, it does not look good.
(Disclaimer: this writer was involved in the Supreme Court hearing on February 3, on behalf of the film producers. The account of the Supreme Court proceedings on that day is based on first-hand experience).