The Kerala High Court has expressed its opinion on atristic freedom that any movie-maker can fetch under Article 19(2) of the Constitution of India.

The single-judge Bench of Justice P.V. Kunhikrishnan has opined that excessive use of obscene language cannot be a basis to take down a movie and that the filmmaker has full discretion to decide on type of language of the characters it has created while exercising his/her artistic expression.

Brief Facts of the Case 

The contention of the petitioner was that 'Churuli', which is a Malayalam feature film contains obscene and filthy languages, which opposes public morality and tranquility. According to the petitioner, a person of common parlance will not use such languages even privately at home. It is also stated that the release of a movie of this kind on a public platform will attract the offences under the Indian Penal Code. According to the petitioner, if this movie is allowed to watch by children and teenagers, there is a chance to imitate the language in the film by them.

High Court Observation

The Court at the outset ovbserved that the writ petition lacks sufficient pleadings and the prayers in the writ petition itself are vague

"simply stating in the writ petition that a movie contains an overdose of foul, filthy, and obscene language, doesn't rationally compel the Court to direct the authority to remove the movie from the OTT platform."

"It is only mentioned that the exhibition of the movie amount to the commission of criminal offences under the Indian Penal Code. When a writ petition is filed with a serious allegation that a feature film violates certain provisions of the Indian Penal Code, at least the prayers in the writ petition should be clear and specific. An actor or the director or the producer of a film cannot remove the movie from the OTT platform."

The Court mentioned that Part III of the IT Rules, 2021 deals with the Code of Ethics and Procedure and Safeguards in relation to digital media. This part applies to the publishers of the news and current affairs content and publishers of online curated content.

"Online curated content is defined in Rule 2(q) as any curated catalogue of audio visual-content, other than news and current affairs content, which is owned by, licensed to, or contracted to be transmitted by a publisher of online curated content and made available on demand, including but not limited through subscription, over the internet or computer network, and includes films, audio visual programmes, documentaries, television programmes, serials, podcasts and other such contents."
"Rule 9 of Part III of Rules, 2021 says about the observance and adherence of the code. Rule 9(3) says that for ensuring observance and adherence to the code of ethics by publishers operating in the territory of India and for addressing the grievance made in relation to publisher under Part III, there shall be a three tire structure as Level I-self regulation by publishers, Level II-self regulation by self-regulating bodies of the publishers and Level III- oversight mechanism by the Central Government."

In view of the above, the Court noted that prima facie, petition is not maintainable, because the petitioner has not availed the alternative remedy, that is available as per Rules, 2021. 

"it is clear from the Rules, 2021 that if the petitioner has got any grievance against the movie Churulim there is a grievance redressal mechanism as per Rules, 2021. Admittedly, the petitioner has not availed of such alternative remedies."

Remarking on grievance raised by the petitioner in the writ petition, the Court stated that the only restriction for the freedom of speech and expression is mentioned in Article 19(2) of the Constitution. As per Article 19 (2) nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercises of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Whether there is anything to restrict the freedom available to a film maker as per Article 19(1) of the Constitution of India?

The Court observed that it is a settled position that artistic freedom is covered by Article 19(1) (a) of the Constitution. It added that writer and the director of a film are the masters of that film

"A film is a creation of an artist. Artistic freedom generally means a freedom to imagine, create and distribute cultural expressions. Article 19(1)(a) of the Constitution of India envisages a fundamental right to freedom of speech and expression to all citizens, but of course with an exception mentioned in Article 19(2) of the Constitution."

For the particular movie in question, the Court decided to get the opinion of the State Police Department regarding the alleged violation of the law enacted to ensure public order, decency, and morality.

After watching the movie, the after watching the movie, the Special Team reported that there is absolutely no statutory violation of any law and it is also stated in the report, which is produced as Annexure R2(b) that no criminal offence is made out as alleged in the writ petition.

Therefore, even according to the State Police Department, there is no violation of any existing statutory rule in the film, and no criminal offence is made out in exhibiting the above film in the OTT platform, the Court stated.

Noting that a film is to be assessed after watching the film in full. Without watching a movie in full, it is not proper to comment based on some isolated dialogues in the film, the Court held that whether those dialogues are necessary for the facts and circumstances of the story in the movie is a matter to be decided by the filmmaker and this Court also can look into the same to find out whether the filmmaker exceeds his right of freedom of speech and expression. It cited The State of Bihar Vs. Shailabala Devi, 1952 Latest Caselaw 36 SC, K. A. Abbas Vs. The Union of India & ANR, 1970 Latest Caselaw 201 SC.

"motion pictures can stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. Therefore, the Apex Court observed that the classification of films into two categories of 'U' films and 'A' films is a reasonable classification."

It further referred to Ranjit D. Udeshi Vs. State of Maharashtra, 1964 Latest Caselaw 177 SC, Raj Kapoor & Ors Vs. State & Ors, 1979 Latest Caselaw 222 SC,  Samaresh Bose & ANR Vs. Amal Mitra & ANR, 1985 Latest Caselaw 205 SC, Odyssey Communications Pvt. Ltd. Vs. Lokvidayan Sanghatana & Ors, 1988 Latest Caselaw 177 SC, Bobby Art International, Vs. Om Pal Singh Hoon & Ors, 1996 Latest Caselaw 395 SC

In view of the above, the Court noted:

"A film is to be assessed based on its entirety. Whether the dialogues of a film correlate to the story in the film is the point to be decided. The film is to be considered as a whole in a fair, free and liberal spirit without dwelling too much upon isolated dialogues or strong words used in the film here and there. The film is a creation of an artist. The filmmaker is trying to depict a story and the only point to be looked into is whether the dialogues in the film are within the four corners of the story and whether the dialogues in the movie are relevant in the facts and circumstances of that story. If this Court starts to interfere with the exhibition of films, saying that some dialogues in a movie are obscene or some dialogues are foul language, there will be no end to it. A film is an exhibition of a story by the filmmaker. He is entitled to use his artistic freedom. There is no compulsion to view this film by each and every citizen of this country."

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Sheetal Joon