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Case Analysis On Kodungallur Film Society v/s Union Of India

Kodungallur Film Society V. Union Of India
Writ Petition (Civil) No. 330 Of 2018

Nobody has the right to become a self-appointed guardian of law and forcibly administer his/her own interpretation of the law on others, especially not with violent means.
Destruction of public and private property remains as a threat to the society. Those who destroy public property should face the law without any fail. As a citizen of India, safeguarding public property and abjuring violence is one of the fundamental duties which create a sense of responsibility among citizens towards their country.

The Constitution expects that the citizens of the country should strictly monitor their activities while they exercise and enforce fundamental rights. They should realize that they owe some duty towards the nation. A democratic state can�t survive without the enforcement of fundamental duties which form the essence of our Constitution.

On 25th January, 2018, the petitioners filed a writ petition on the backdrop of mob violence, protests and demonstrations which erupted across the nation in the recent past, especially against cultural programmes and establishments and ensuing damage to public and private property arising out of such violence. The principal relief is to issue directions to the States/Union of India to strictly implement the decision rendered by the court in In Re: Destruction of Public and Private Properties vs. State of Andhra Pradesh & Ors.1 concerning the large scale destruction of properties in the name of agitations, bandhs, hartals etc.

Bench comprising of CJ Dipak Mishra, A.M.Khanwilkar and Dr. D.Y.Chandrachud, JJ. , laid down recommendations in form of preventive measures, remedial measures and punitive measures in addition to that in Destruction of Public and Private Properties, In re, (2009) 5 SCC 2012. The writ petition was dismissed by giving the directive of implementation of these recommendations by the Central and State government within a period of 8 weeks.

The PIL filed by the Kodungallur Film Society highlighted law and order problems arising out of the release of several films, especially the violence surrounding the release of the film �Padmavat�, and submit the fundamentalist outfits and fringe groups have been issuing threats and engaging in acts of violence against people and property to disrupt and prevent public exhibition of these films on the pretext that they offend cultural/religious sentiments.

These groups who engage in violence against artistic expression with utter impunity and show complete disregard for the rule of law and constitutional values. The films which are protested against are certified for public exhibition in accordance with the law under the Cinematograph Act. Therefore, by attempting to stop their exhibition, these groups operate as �super censors�, exercising unlawful authority and power outside the control and without the sanction of the state.

Attacks on films are part of a larger problem whereby private individuals and groups impose unlawful restraints by threatening violence upon citizen�s artistic freedom and thereby impinge on the freedom of speech and expression under article 19(1)(a) of the constitution of India. State government ban the exhibition of such films, citing law and order problems, without clamping down on the root cause of such problems namely the individuals and groups who incite and commit violence. These groups have tacit support from the political parties in power.

The film mentioned above was about to tell the story of a 14th century Hindu queen and Muslim ruler, has sparked nationwide protest by Hindus and caste groups. Cinemas are an inseparable part of right to free speech and expression and state cannot issue notifications to ban the releasing of a film. Rajput community members have burned effigies of Bhansali (director) and threats have been aimed at the actors. Rajput Karnik Sena, a fringe caste group called for protest and stated that the film is to be banned. Protests had been emerged in several states including Rajasthan, Uttar Pradesh and Haryana. A regional leader even announced a reward for anyone beheading the director and actress.

The law concerning the damage of property is Prevention of Damage to Public Property Act (PDPP Act) 1984 which has provisions only for imprisonment and fine. In 2007, Supreme Court took note of instances of mass violence and resultant damage to public property across the country. Two committees namely Thomas committee and Nariman committee put forward recommendations which could help handle such situations. Report submitted by K.T.Thomas included the provision to make the leaders of the organization who calls for the action, guilty of abetment. Enable the police officers to arrange videography of the activities and to contain provision for rebuttable presumption.

The Nariman committee recommendations dealt with extracting damages for destruction. Court needs to lay down principles on which liability could be fastened. These are clearly unusual situations which have arisen and likely to arise in future and need to be provided for in the larger interest of justice.

While issuing guidelines the apex court bench has taken cue from the guidelines issued to control mob lynching in Tehseen S. Poonawalla V. Union of India & Ors. From these facts, it is evident that the petitioners was compelled to file the a PIL in the backdrop of mob violence and rampant vandalism. The main prayer that was urged in the PIL was to direct Central and State government to implement the guidelines framed by the Court in the case In Re: Destruction of Public and Private Properties v. Govt. of AP with regard to measures to be taken to prevent destruction of public and private properties in mass protests and demonstrations.

Article 19 of the Constitution protects freedom of speech and the right to assemble without any arms. However this right is subjected to certain regulations contained in Indian Pineal Code, the Criminal Procedure Code and the Police Act. So, the Constitution seeks a balance between Article 19 and social order. PDPP Act of 1984 punishes anyone who commit mischief by doing any act in respect of any public property with a jail term of 5years and fine or both. Supreme Court in several cases decided the accountability for the damage done to public property during protests. This land mark judgment has far reaching consequences which will go a long way in future.

The decision of the apex court to issue guidelines to both Central and State government is fitting to the situation. Violence against people and property to disrupt and prevent public exhibitions of these films on the pretext that they offend cultural and religious sentiments is against the artistic expression with utter impunity and show complete disregard for the rule of law and constitutional values.

The court has taken recommendations given by the two committees namely Justice K.T.Thomas committee and Nariman committee appointed by the court in Re: Destruction of Public and Private Properties v. Govt. of AP. After having noted the recommendations of these committees, in paragraph 16, 28 and 29 the court declared that the stated recommendations had the approval of the court and shall immediately become operative. Necessary amendments were brought in Prevention of Damage to Public Property Act 1984, Criminal Procedure 1973 and other criminal law statutes. It also set out guidelines to assess damages to property in the absence of statutory framework.

Petitioners have articulated some suggestions to ameliorate and curb the occurrences of such events which include (para 4 of the judgment):
  1. Regarding protection to freedom of speech and expression
  2. Regarding modalities for preventive action
  3. Regarding reporting of cases and police station
  4. Regarding liability of organizations, groups etc.
  5. Regarding accountability of police
  6. Regarding claims tribunal and award of compensation
  7. Protection of non-violent democratic form of processions, march and protests.

Union of India vide letter dated 26th march 2018 has also requested the State and Union Territories to appoint one or more district/additional district judges, in consultation with their respective High Courts, to deal with cases of damage to public property on a whole time or part time basis.

The present petition highlights the disconcerting rise in protests and demonstration by private entities targeting, amongst others, exhibition of films and social functions including sections of people, on moral grounds, in particular, using threats and violence. Such acts of violence focus on a deeper malaise one of intolerance towards other�s view which then results in attempt to suppress alternate view points, artistic integrity and freedom of speech and expression guaranteed by the Constitution of India. This judgment also points that it is the duty of the state by taking measures to prevent such actions from occurring in the first place, ensuring the law enforcement agencies exercise their power to bring the guilty parties to book and imposing time bound and adequate punishment for any lapses.

The court gave emphasis to the point that one must not forget that the administration of law can only be done by law enforcing agencies recognized by law. Mob violence runs against the very core of our established legal principles since it signals chaos and lawlessness and the state has a duty to protect its citizens against the illegal and reprehensible acts of such groups. The learned Attorney General has also made certain suggestions which can be implemented as interim measures to fasten accountability and prescribe time lines for law enforcement agencies. They include:
  1. The offence is covered under section 3 of the PDPP Act, which provides that whoever commits mischief by doing any act in respect of public property shall be punished with imprisonment and fine. Section 425 of IPC deals with mischief
  2. Considering Delhi Development Authority as an example where DDA has divided the city in to various zones and placed them under different officers who would be held liable if there is building law violations.
  3. The liability for compensation has to be fixed on the organizer(s).
  4. Actual perpetrators who caused the damage will also be liable to pay compensation.
  5. State Government may be directed to pin the responsibility of maintaining law and order during such protests, bandhs etc. on the Senior Superintendent of police in charge of that district.
  6. Court may direct each police station to maintain a panel of local video operators who could be made available at short notice.
  7. State can consider setting up helplines to specifically deal with instances of violence or damage to property caused during such protests.

The court also considered the judgment of Tehseen S. Poonawalla, where the petitioners had prayed for a writ to take measures to curb incidents of lynching and mob violence in respect of cattle trade and related activities. In this context court also observed that State has a sacrosanct duty to protect its citizens from unruly elements and perpetrators with utmost sincerity and true commitment. Freedom of speech is a principle pillar of a free government; when this support is taken away, the constitution of a free society is dissolved and tyranny is erected on its ruins.

Having observed thus, the court issued extensive guidelines in nature of preventive, remedial and punitive measures to curb incidents in mob lynching and vigilantism. Cases like Koshy Jacob v. Union of India and Shakthi Vahini v. Union of India in which Court was called upon to address the issue of honour killings and other forms of honour crimes inflicted on young couples/families by Khap Panchayats etc. are mentioned in this judgment stating several directions as measures to evolve a robust mechanism to deal with the crisis. In that case too preventive steps, remedial measures and punitive measures are provided by the court.

Previous case laws has influenced this judgment in order to fix the accountability and measures that is to be adopted. The reasoning provided by the Court in this area is quite logical and accurate to the present scenario. All issues arising out of the facts of the case has been discussed deeply with the help of previous case laws and the Court has gone through the key areas in those decisions and applied the same in this. Moreover, guidelines which is provided in this judgment is precise and interpretation of the law is also appropriate.

Crimes committed by the group of self-appointed keepers of public morality may be on account of different reasons or causes, but the underlying purpose of such group of persons is to exercise unlawful power of authority and that too, without sanction of State and create fear in the minds of public. The dispensation for preventing occurrences of such crimes or remedial measures and punitive measures would vest in the same police of the State. A comprehensive structure is needed so that issues of accountability and efficiency in curbing incidents of peaceful protests turning into mob violence.

The judgment ends with prescribing the said guidelines which are in auxiliary to the directions given in Re: Destruction of Public and Private Properties. They are:
  1. Structural and preventive measures which deals with responsibility of nodal officers, prohibition against weaponry, rapid response team, cyber information portal and helplines
  2. Remedies to minimize, if not extirpate, the impending mob violence. This includes use of non-lethal crowd control devices, imposing reasonable restrictions on social media, issuing messages across various audio-visual mediums to restore peace and to stop/control rumors.
  3. Liability of persons causing violence includes:
    the leaders and the office bearers of such group should physically present themselves for questioning within 24 hour. In case of more than one person involved in such act of violence, each one of them shall be jointly, severally and vicariously liable to pay the quantified loss.
  4. Responsibility of police officials like:
    concerned police officials should file FIRs and complete investigation as far as possible within the statutory period and submit a report in that regard. The officer-in-charge should also call upon from the panel of local video operators maintained by the concerned police station to video-record the events etc.
  5. Compensation:
    The person/persons who has/have initiated, promoted, instigated or any way caused to occur any act of violence against cultural programmes or which results in loss of life or damage to public or private property either directly or indirectly, shall be made liable to compensate the victims of such violence. This compensation should be with regard to the loss of life or damage done to any public or private properties, both movable and immovable.

For eliminating mob violence, it should be first identified as criminality than treating it as a social phenomenon. Responsibility rest upon police, elected leaders, community leaders, teachers, parents and mass media. A brutal police force is not the solution not is mere arrest. As the judgment provides several guidelines, it is to be understood that the scope of guidelines are limited.

In Koshy Jacob v. Union of India, the petitioner was not granted any compensation since the organizers of the protest couldn�t be produced before the court. It would be nice if the provision for banning from participating in any elections in future has added in this judgment. Because the sad reality that we face today is that leaders will easily step out from the crime. Lives of many innocent people is sometimes taken by these groups which is disgraceful. In general, judgment is logical and reasonable and it has reviewed many core areas with the help of prominent case laws.

Incidents of rioting, vandalism and arson have been common during these protests across the country. This can instill fear in the minds of normal people which may eventually led to disturbed living. No-one can take law in their hands and do things as they wish. Our Constitution guarantees freedom to express which can�t be blocked by particular groups on the pretext that they offend their religious sentiments. As this judgment states, strict measures are appropriate to control such violence. Everyone should be aware of the point where their freedoms stops. It would be appealing if the leaders and politicians are subjected to certain code of conduct.

Written By: Aswani C Rajeev - Government Law College, Thrissur

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