Can’t dictate filmmakers to use only decent language in films, they have artistic discretion, limited only by Article 19(2): Kerala HC

While vindicating the liberty of filmmakers to make films as per their own choice, the Kerala High Court as recently as on February 10, 2022 in a learned, laudable, landmark and latest judgment titled Peggy Fen v. Central Board of Film Certification & Ors. in 2022 LiveLaw (Ker) 72 in WP (C) No. 28288 of 2021 has while dismissing a plea seeking to remove Malyalam movie Churuli from OTT platform SonyLiv for its allegedly excessive use of obscene language, observed clearly that a filmmaker has the discretion to decide what type of language should be used by the characters in his film. Justice PV Kunhikrishnan unequivocally added a rider though that as long as the language used in a movie was within the contours of the reasonable restrictions imposed on freedom of speech and expression under Article 19(2) of the Constitution of India. Very rightly so.

At the outset, the single Judge Bench of Justice PV Kunhikrishnan first and foremost puts forth in para 1 that, “This writ petition is filed by an advocate with a prayer to issue a writ in the nature of mandamus directing the respondents to remove the Malayalam movie “Churuli” from the ‘Over The Top Platform’ (for short ‘OTT Platform’) as expeditiously as possible. The second prayer is to issue such other writ, order, and direction directing the respondents as this Hon’ble Court deems fit in the interest of justice.”

While elaborating, the Bench then observes in para 2 that, “The petitioner is an advocate by profession and is having an office at Ayyanthole, Thrissur. ‘Churuli’ is a Malayalam language movie directed and co-produced by renowned director Lijo Jose Pellisseri and written by S. Harish. The movie was released on the OTT Platform in SonyLIV on 19.11.2021. According to the petitioner, even though the movie ‘Churuli’ is capable of invoking a sense of curiosity and mystery in the minds of the audience, there is an overdose of foul language used in the movie. It is pleaded that the movie contains obscene and filthy languages which are opposed to public morality and tranquility. According to the petitioner, every character in the movie uses at least a single offensive word in every dialogue they deliver. The filthy languages are used lavishly and without any curtain. It is the case of the petitioner that the words and language used in the film are not one that can be used publicly and openly. It is the case of the petitioner that, a person of common parlance will not use such languages even privately at home. According to the petitioner, the filmmaker had used such language deliberately with the intention to get more attention to the movie. Apart from using filthy words, the petitioner submitted that there are a lot of usages which is totally against the morality of ladies and objectionable to all ladies’ common conduct. The words used in the movie outrages the modesty of ladies and children and a person who is watching this movie will feel irritated and disgusted, the petitioner submits. It is pleaded that since a movie which is supposed to be a form of art, it influences common people of the society and it is common among people to imitate the dialogues of the Malayalam movies and if this similar situation happens with the movie ‘Churuli’, it will affect the public morality and tranquility. It is contended that the censor board has violated the rules and regulations by giving permission to release this movie. According to the petitioner, releasing a movie of this kind on a public platform will attract the offences under the Indian Penal Code. According to the petitioner, during the pandemic season, the children and the teenagers are staying at home as their schools are shut down and they are more prone to this OTT platform and this uncensored content. The parents seem it very difficult to monitor the children all the time, especially teenagers, who cannot be kept away from the phone or any other like gadgets as these devices are necessary for schools and colleges works. According to the petitioner, in January 2019 eight video streaming platforms had signed a self-regulatory code that stated a set of guiding principles for the contents which can be displayed online. There were five terms and conditions which had to be mandatorily followed and the same is extracted in the grounds of the writ petition and the same is extracted hereunder also:

a) No such content shall be added on these platforms which would cause any disrespect to the national emblem or national flag.

b) Display of content which can hurt religious sentiments could not be streamed.

c) Visuals promoting child pornography to be strictly prohibited.

d) Content which is banned by the law or order of the country could not be streamed.

e) Terrorism of any kind cannot be promoted.

It is the case of the petitioner that there is violation of the above terms and conditions also. Hence, this writ petition.”

Most significantly, what forms the cornerstone of this notable judgment is then laid bare in para 23 wherein it is held that, “In the light of the above principle, this Court has to consider the film “Churuli”. As narrated in the report submitted by the Special Team constituted by the additional 7th respondent, which includes three women members, the plot of the movie “Churuli” is the life of a group of Fugitives from law residing in deep forests which is highly inaccessible to the outside world. The inmates of the imaginary world are rough and tough in the character who are braving the odds of nature and are in constant dread of apprehension by law. Their living conditions are meagre and life is an everyday struggle for existence. They face danger from wildlife and other perils of forest life. The Special Team observed that it is a daily struggle for existence for the characters in the movie. The centre of action in the movie is an illegal Arrack brewing centre deep inside the forest. The characters in the movie due to their living conditions and circumstances are forced to speak in rough and tough language with expletives and cuss words in their day to day interactions. The filmmaker used a language, which, according to his artistic view, is used by the people in “Churuli”. In order to make the movie believable and for the audience to fully appreciate the life and culture of the character, the filmmakers use such languages. The persons living in such conditions cannot be expected to speak in a decent language used by people residing in a normal area. Nobody can dictate a filmmaker to use only decent language in his film and it is his artistic discretion to choose the language but of course with reasonable restriction mentioned in Article 19(2) of the constitution. The additional 7th respondent clearly stated in his statement that there is no statutory violation of any rules and no criminal offence is made out in exhibiting the movie “Churuli”. In such circumstances, this Court cannot direct any of the respondents to remove the movie “Churuli” from OTT platform. Moreover, there is no proper pleading in the writ petition. The prayers in the writ petition are vague. A reading of the writ petition itself will show that the intention of the petitioner is only publicity. Even the relevant rule which is applicable in an OTT platform movie is not referred to in the writ petition. Simply making an observation that the movie contains foul language or obscene language, this Court cannot direct to remove the movie from OTT platform. I have a strong doubt that the petitioner herself has not seen the movie in full with patience before filing this writ petition. Therefore, according to me, no relief can be granted in this writ petition.”

Be it noted, the Bench then envisages in para 24 that, “Before parting with this case, I am constrained to make certain observations. Social media is now popular among the citizens. Anybody can make any comments on social media because freedom of speech and expression is a fundamental right. But people are making comments on social media without properly understanding the facts. I am sure that most of the people who are making comments against this film namely “Churuli” have not seen the movie in full. Probably they may be relying on certain video clips received on Whatsapp, Facebook, Twitter, etc. to make comments. There is indeed freedom of speech and expression to every citizen as per Article 19 (1)(a) of the Constitution of India. But the above types of critics will be doing an injustice to a filmmaker by making comment about a film and make it an unpopular one without watching his movie in full. I can understand a criticism about a movie after watching the movie in full. But, without watching the movie, making comments alleging that it is a bad film, will hurt the filmmakers and artists. They are also human beings. Their work may be a good artistic creation or sometimes it may not be a good work. But before making comments against it or in favour of it, it is the duty of the citizens to watch their creation. I am told that now there is a phrase in social media about a new language called “Churuli language”. I am sure that the people who created this “Churuli language” have not seen the film “churuli” with patience and with the understanding that it is a creation of an artist. The artists are also part of our society. They create their work spending days and months. Making wrong comments on social media about an artistic creation, even without watching the creation is to be deprecated. It is the duty of the 7th respondent and his subordinates to protect the artistic freedom of a filmmaker by initiating appropriate proceedings including criminal cases, if any criminal offence is made out in such situation. The 7th respondent will give strict directions to his subordinates to take appropriate action in accordance to law, if such complaints are received.”

On a serious note, the Bench then conceded in para 25 that, “Another trend is about interpreting orders of a court of law. When this Court passed an order on 07.01.2022 which is extracted in paragraph-6 of this judgment, the same was published in almost all print and visual media correctly. But I am told that the social media interpreted the said order in such a way that this Court directed the Police to find out whether there is foul language in “Churuli” film! If this is correct, it is clear that the same is even without reading the order passed by this Court. This Court only observed that, before deciding this issue it will be beneficial to get the opinion of the State Police Department about the pleadings in the writ petition regarding the alleged statutory violation of law s enacted to ensure public order, decency or morality. This court also directed to find out whether there is any criminal offence made as alleged in the writ petition. This Court never directed the Police to find out whether foul or obscene language is used in “Churuli” film. The contents is correctly published in print and visual media. But I am told that social media started to create a story that High Court directed the Police to find out whether there is foul language in “Churuli” film. This is how social media forum is misused by a section of society. I am not blaming the entire community who are using social media and most of them are using the social media forum in a useful manner. But a minority is misusing the same.”

On an even more serious note and also adding a word of advice, the Bench then underscores in para 26 that, “Similarly when a Court delivers a judgment in a case, even before the judgment reaches the public, the criticism starts. It is surprising to see that, few lawyers are making comments about judgments of court of law even without reading the judgments. Some of the lawyers will start to comment about a judgment delivered by a court at 10.15 am or at 11 am immediately after the judgment is pronounced. The Bench and Bar are two sides of a coin. The lawyers should be the mouthpiece of the judiciary. A fair criticism about a judgment is always acceptable. But the criticism can be started only after reading the judgment. Such a culture is to be developed for which the lawyer community has got pivotal role. It is now a trend for a minority of the lawyers’ community to make comments about a judgment even without reading the judgments. If media people ask a lawyer at 11.05 am about a judgment delivered at 11 am, the lawyer will say that ‘I have not read the judgment, but from the available news I can make certain comments’. How can a lawyer make such comments without reading the judgment? He can simply say that I will read the judgment and will come back for making comments if necessary. If such a stand is taken, no media people will say that he should make comments even without reading the judgment. The lawyers should show the path to the society about the manner in which a judgment of a court is to be dealt with and how a judgment is to be criticized if it deserves such criticism. They can read the judgment and criticize the judgment if they want and of course not the judges who wrote the judgment. If the lawyers take a stand that they will make comments about a judgment of a court of law only after reading the judgment, that will go a long way because society will accept the stand of lawyers because they are respectable people in the society. If the lawyers started to comment about a judgment without reading a judgment, nobody can blame the poor citizens who make comments about judgment and judges on social media. I make it clear that such immature comments are not made by all the lawyers. But it is being done only by a handful of lawyers. At least hereafter, the lawyers should take an oath that they will make comments in print media, visual media, and social media about a judgment of a court of law only after reading the judgment. As I said earlier, the Bench and bar are two sides of a coin. The lawyers should be the mouthpiece of the judiciary. They should protect the interest of the judiciary. The judges may come and go. But Judiciary should stand. The lawyers are part and parcel of the judiciary. Anyway I leave it to the conscience of all lawyers.”

Finally, the Bench then concludes by holding in para 27 that, “In the light of the facts narrated in the earlier paragraphs, no relief can be granted to the petitioner in this case. The petitioner is a lawyer. The petitioner is coming before this Court with a writ petition without proper pleadings and even without a proper prayer. The prayer in the writ petition itself is vague. The statutory provisions applicable in this situation are not dealt with in this writ petition. It is a case to be dismissed with cost. But, taking a lenient view, I refrain myself. Therefore the writ petition is dismissed.”

In conclusion, the Kerala High Court has made it indubitably clear that filmmakers can’t be dictated to use only decent language in films. It was also made clear that they have artistic discretion limited only by Article 19(2). To put it differently, those litigants who similarly rush towards filing a writ petition at the drop of a hat under the pretext of finding something objectionable in the film must read this brief, brilliant, bold and balanced judgment in its entirety and pay heed to what has been held so commendably! Of course, it would certainly save them from landing themselves in inevitable choppy water and simultaneously also in indulging in an exercise in futility!

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