Censorship, Section 377 ruling and the rise in right-wing assault

[dropcap]O[/dropcap]n October 13, 2018, the play "Shiva" — a performance on sexuality and gender, directed by artist Dayasindhu Sakrepatna — had to be shelved because right-wing elements from Bharata Punarutthana Trust, an affiliate of Vishwa Hindu Parishat, filed a complaint against Jagriti theatre, the institution hosting the play, as well as the individuals involved in it. In their letter to the DCP, Whitefield division, Bangalore, they claimed that Shiva was their devata (God) and this play hurt their religious sentiments. These right-wing elements landed up at Jagriti theatre, along with the police, who claimed that Jagriti did not have valid permission for sound systems, and also they had not informed the police about staging the play. The police served a notice to the organisers, and asked them to appear in the police station. There, the police asked them to halt the shows "fearing a law and order situation", and said that they cannot provide adequate protection to the cast and crew of the play.

It has to be noted that when the members of the play confronted the complainants, they revealed that they hadn't even watched the play, and as they have mentioned in their complaint dated October 12, 2018, they think the play "is communal & targeted to HINDU community, Religion, & GODS (sic)". Based on this frivolous complaint, the Commissioner of Police, T Suneel Kumar, said the police will review the contents of the play to see if it offends religious sentiments and if not, they will provide protection. Now the question is, how did the police get such unhindered power to censor artistic expressions? What special qualifications do they have to appreciate, or dismiss art?

Performances in colonial India depicted the plight of the indigo planters (Nil Darpan), the visit of Prince of Wales (Gajadananda and the Crown Prince) or representing the ill-treatment of the commoners by the English police (The Police of Pig and Sheep). These, among others, enraged the British government, and consequently, the Dramatic Performance Bill was introduced in 1876, later enacted into a law.

The Karnataka Dramatic Performance Act, 1976 was drafted along the lines of the colonial law. Section 2(1) of the Act defines an "objectionable performance" including performances that are likely to incite violence, deliberately outrage religious feelings of any class or is grossly indecent or obscene. The Madras High Court deemed the definition to be too vague to act as a restriction to the freedom of speech and expression.

The State Government and the Deputy Commissioner have been empowered to prohibit performances that they deem to be "objectionable". The Deputy Commissioner has the authority to pass such an order without issuing a notice of the same to the concerned performers. An appeal from the said order is dealt with by the same authority. The Act makes no mention of any express procedure that needs to be followed by the authorities in order to ensure that the principles of natural justice are upheld. Furthermore, Section 13 of the Act protects any acts of the authorities that have been done in good faith, paving the way for arbitrary decisions.

The Bombay Police Act, which ordered that the performance must be reviewed and approved by the relevant authority, with the necessary censorship, was challenged in the Bombay High Court in September, 2016. The case is pending before the Court, having seen several orders of adjournment passed, granting the petitioners no interim relief.

The theatre group "Pareeksha" in Tamil Nadu received approval to present a censored version of their play just an hour or two prior to their performance, leading to its inevitable delay. Subsequently, the Madras High Court was moved to challenge the validity of the Act.

The Court identified that in a play, time is of the essence, and a defective order could not be cured by an effective appeal. The mandate of review that requires submission of the script was questioned, as a live play would be improvised to some extent every night. The nature of the discretionary powers given to the evaluating authorities was questioned, along with their artistic integrity. The Court cited a case stating that fundamental rights of citizens cannot depend solely on presumed fairness and integrity of officers of the State. This indicates a statutory defect as the power has not been channelled through the appropriate machinery. The findings of the Court lead to the ultimate dismissal of the Act.

Since the decriminalisation of consensual same-sex relationships by the Supreme Court, there has been a sudden upsurge in attacks and cases filed against LGBTQ+ community by various right-wing elements. In September, right after Section 377, IPC was read down in Navtej Singh Johar v. Union of India, a complaint was filed at the Cubbon Park police station by the Cubbon Park Walkers Association, specifically by a lawyer who is associated with right-wing organisations, alleging that homosexual individuals were indulging in illegal activities in the park. LGBTQ persons have always had safe access to Cubbon Park and yet, suddenly after the judgment, they became a "nuisance". Similarly, in October, trans-women were brutally attacked in Maharashtra, Kerala, and Telangana for simply accessing public spaces. The most recent assault on the play "Shiva", which navigates the complicated terrain of gender and sexuality, by portraying the difficulties faced by LGBTQ+ population — only exacerbates the malaise.

In such a situation, it is important to note that Justice D Y Chandrachud in Navtej judgment observed: "Confronting the closet would entail ensuring that individuals belonging to sexual minorities have the freedom to fully participate in public life, breaking the invisible barrier that heterosexuality imposes upon them. The choice of sexuality is at the core of privacy. But equally, our constitutional jurisprudence must recognise that the public assertion of identity founded in sexual orientation is crucial to the exercise of freedoms."

He went on to say: "It must be acknowledged that members belonging to sexual minorities are often subjected to harassment in public spaces. The right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference."

Further, Justice Rohinton Nariman stated that "…all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment."

Now that the Section 377, IPC has been read down, the conservative communal elements are targeting sexual minorities by resorting to cunning ways to reinforce regressive social morality over constitutional morality. The Navtej judgment might be a positive and much required step forward, however there are laws like the Beggary Acts of different States, Section 36A of Karnataka Police Act, 1963, which still has the potential to victimise trans-women, and Karnataka Dramatic Performances Act, 1964, which gives immense power to State machineries. One sure way ahead is to challenge the constitutionality of these draconian laws, and simultaneously file police complaints and take collective actions against people blatantly trying to misuse existing laws to humiliate and discriminate sexual minorities in the name of public nuisance, offending religious sentiments, and so forth.

[Author's note: Eshani Vaidya, intern at Alternative Law Forum, assisted in the writing of this article.]

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