Targeting free speech

Aamir Khan is a distinguished actor who speaks in many voices. He sells Coca-Cola with wit and panache. The multinationals live off him — adding legitimacy and profit to their commercial product.
He has strong views that the Narmada oustees must be rehabilitated in the interests of social justice. His artistic, commercial and personalised public views are slotted in different compartments.
So, if the multinational Coca-Cola seller anguishes for the homeless, what is there to say? Is he right on both counts? Or is it that if he contradicts himself, he is free to do so? Coca-Cola for the masses, sympathy for oustees.
It might be fitting for actors who speak on public issues to consider the totality of their fractured speech to explain — at least to themselves — the integrity and nexus of their commercial speech with their statements on social issues.
But irrespective of which part of Aamir's speech represents the real Aamir, there can be little doubt that he is entitled to all or any forms of speech even if they represent fragments of a divided self.
Fanaa is an entertainer — and a good one at that. The social ban on Fanaa in Gujarat is politically motivated and twists Aamir's remarks on the Narmada dam as an attack on the Narmada project.
But Fanaa has nothing to do with the Narmada project. So, the logic of social censorship in Gujarat is that since Aamir is wrong on the Narmada oustees, he will be denied any kind of artistic speech in Gujarat.
The attack on Fanaa is a perverse show of strength. Both the Narmada Tribunal as well the Supreme Court reinforced a simple formula of rehabilitation.
Aamir's antagonists have not taken this dispute to the market place of ideas for public discussion. Instead, Aamir has been drawn into the political market of lumpen power — the world of street censorship based on threats of intrigue and violence.
This is coercive censorship of the worst kind. There is no exchange of ideas. This is simply blackmail with threats of criminality. Criminalised bullying will not prevent people from watching Fanaa on pirated CDs.
The hype will increase its popularity. Aamir's speech has to be considered with the free speech rights of his colleagues, which constitutionally include not just the right to make a movie but also circulate it.
Equally the peoples' right to know, watch and enjoy a film cannot be ransomed to threat-based regimes of hoodlum street censorship which threaten disorder.
Should the state take the side of a person who is lawfully exercising his free speech or the side of those who deny this lawful right under threat of disorder and riot? People have a right to reject Fanaa by refusing to see it.
But, there is a vast difference between peaceful protest by not seeing a film and coercively preventing the film from being screened at all — by any means, fair or foul.
India's system of pre-release film censorship has saved many films from the clutches of excessive broadcast and film censorship. In Satyam, Shivam, Sundaram and Bandit Queen, the court gave protective recognition to the Film Board's certificate.
In Shankarappa's case (2001), Justice Variava denied the state powers of censorship to sit in appeal over the Film Board. Successive governments claim to censor film distribution because of law and order.
Rejecting this spurious argument, the Supreme Court said: "Once an expert has considered the impact of the film on the public and cleared the film, it is no excuse to say that there is a law and order situation...
In such a case, the clear duty of the government is to ensure that law and order is maintained by taking appropriate action against persons who choose to breach the law".
In the Fanaa hearing on June 5, the Supreme Court reiterated this and advised seeking protection from state authorities but went no further. This applies with equal force to the ban on The Da Vinci Code by Punjab, Tamil Nadu, Nagaland, Andhra Pradesh, Kerala, Assam and Goa.
Films cannot be banned on the pretext of law and order. This is breeding fundamentalist censorship. Are films to be watched under police protection? Hoodlums need to be told that they cannot hold free speech to ransom.
The writer is a senior Supreme Court advocate.