CASE ANALYSIS

OF
KODUNGALLUR FILM SOCIETY V/S UNION OF
INDIA
(2018) 10 SCC 713

BY:-
ANSHIKA GAUTAM
3RD YEAR
SYMBIOSIS LAW SCHOOL,PUNE
Mob:- 8181938515
EMAIL: anshikagautam1803@gmail.com
 www.probono-india.in

BRIEF FACTS OF THE CASE

On 25th of January 2018, the Kodungallur Film Society filed a writ petition in the Supreme
Court of India due to the infringement of their fundamental rights which is the right to
freedom of speech and expression, and is protected under Article 19(1)(a) of the Constitution
of India.The issue was protests taking place against the release of many films. There are some
groups who, in the name of protecting their culture/religion, cause violence against the people
and destroy public and private property and issue threats to the people related to these films.
The petitioner filed the case due to acts of violence and threats being issued against the
artistic expression of the citizens. The kind of violence and threats imposed by the members
of the KarniSenasurrounding the film Padmaavat has been faced by a lot of films in today’s
time. All the films which are released, get certified by the authorities according to the law
under the Cinematograph Act, 1952. But these groups act as “super sensors” and exercise
their power and control over these artists without any unlawful authority or the permission of
the government. They unlawfully impose restrictionsupon citizens’ artistic freedom which
results in unlawfully stopping them in exercising their fundamental rights. Among other
fundamental rights, the citizens of India have a right to freedom of speech and expression 1
which also protects the artistic expressions of the film-makers or anyone related to that field.
However, the law also gives power to the authorities to impose any restrictions, if it seems
necessary.2 This power lies with the Central Board of Film Certification. Only after the
makes obtain this certificate, their films can release. But the respondent State Government
ban the release of the films due to the law and order problems and without knowing the actual
root causes that is causing these law and order problems, which are these groups who alter
mindset of people and commit violence in the name of protecting their cultural and religious
sentiments. The petitioner also contented that some political parties extend their supports to
such groups which gives them more power and confidence in committing such acts of
violence.

1
Article 19(1)(a) of the Constitution of India
2
Article 19(2) of the Constitution of India
 ISSUE/S OF THE CASE

The petitioner filed this writ petition under Article 32 of the Constitution of India. The fact-
in-issue in this case is infringement of the fundamental right provided under Article 19(1)(a)
of the Constitution of India which guarantees the right of freedom of speech and expression
to all the citizens of India. In this case, the freedom of artistic expression of the Kodungallur
Film Society comes under the freedom of speech and expression and they should not be
restricted in exercising their right. Only the right authority has the power to restrict them, and
that authority is the Central Board of Film Certification. The Cinematograph Act, 1952
certifies films as per the prescribed procedure in the Act. It is the Central Board of Film
Certification and the Cinematograph Act that lays down the conditions as which movie can
be released and which can be not.

ARGUMENTS FROM THE APPELANT’S SIDE

The appellant’s side prayed to the apex court for some reliefs, and they are:

1. Issue an order directing the respondents to strictly follow and implement the
guidelines provided in the case of Destruction of Public and Private Properties v/s
Government of Andhra Pradesh3 which contain guidelines regarding mass protests
and destructions and also regarding recovering compensation for damages caused.
2. Issue an order directing all the State governments to take action against the offenders
under the Indian Penal Code, 1860 and the Prevention of Destruction to Public
Property Act, 1984.
3. Issue an order to the respondents directing them to recover the additional expenditure
involved in providing security to film release centres from the people who impose
threats against it.
4. To conduct proper and complete investigation and trial in such cases within a
stipulated time, to protect the interest of justice.
5. Issue order directing the respondents to the file status reports regarding the
implementation of actions being taken with respect to the guidelines provided in the

3
[2009] 5 SCC 212
 case of Destruction of Public and Private Properties v/s Government of Andhra
Pradesh4.

ARGUMENTS FROM THE RESPONDANT’S SIDE

The respondent’s side argued:

1. Ban of the film due to law and order problems created due to the content of the film.
2. Ban of the film due to religious and cultural sentiments of the people being offended
and hurt.

LEGAL ASPECTS

The para 1 of the case clearly states that this case was mainly filed due to the protests,
violence, threats, demonstrations which have been taking place in all parts of the country
against the film fraternity. The strongly opiniated, fundamentalist outfits and fringe
groupsattack the freedom of the artists to exercise their artistic expression. They attack them
under the pretext of protecting their culture and religious sentiments. It can be agreed that
India is quite a religious country and certain things may hurt the feelings of the people, but
the problem arises when these groups spread false rumours which alter the mindset of the
people. By altering the mindset of other people, these groups achieve their motives. This is
basically how mob lynching takes place under any circumstances. To punish all the members
of the mob who have been involved in mob lynching is difficult and hence there is no specific
punishment for it. In case the mob has committed a murder, they will be punishable under
Section 302 of the Indian Penal Code, 1860. Acts of criminal nature done by a mob has never
been right and never will be. Mob lynching incidents has been increasing day by day and
soon stricter laws have to be implemented. Usually, behind such activities of a mob there is
some political personality or leader. As contented in the judgement in para 1 of the case,
political parties do extend their support which makes these groups fearless. These political
leaders hide behind these groups and create unrest in the country. They usually do this to

4
Ibid.
create trouble for the opposite party but little do they realise that it is taking lives of innocent
people.

The reports of the two committees has been taken into consideration to set guidelines. One
committee is headed by Justice K.T. Thomas, and the other one by Mr. F.S. Nariman. Justice
Thomas Committee recommended the amendment of the Prevention of Damage to Public
Property Act, 1984. It should include provisions to make leaders of such organisations who
commits the offence, guilty of abetment and a provision for rebuttable presumption shall also
be made. It should also incorporate a rebuttable presumption (after two views have been
formed) that the accused is guilty of the offence or not. The Prevention of Damage to Public
Property Act, 1984 should also enable the police officers to arrange videography of the
activities damaging public property as it would help in recognising the faces of the people
involved and they will not be able to prove their false alibi. The procedure suggested by the
committee is that the prosecution should prove that the public property has been damaged in
a direct action called by an organisation and that the accused was involved in the direct
action. After establishing such facts, the burden of proof shifts from the prosecution to the
accused to prove his innocence. The committee also suggested that the bail procedure for
such offenders shall also be stringent. Granting of a bail is to the discretion of the court and
the court should restrict in granting bail in such cases. It should only grant the bail if it feels
that it is reasonable to presume if the accused is not guilty of the offence. The F. S. Nariman
committee stated that “There is a connection between tort and crime - the purpose of the
criminal law is to protect the public interest and punish wrongdoers, the purpose of tort-law is
to vindicate the rights of the individual and compensate the victim for loss, injury or damage
suffered by him”. It recommends that as strict laws are made for damage of public property,
strict laws should be made for damage of private property as well. The law of torts should not
stand weak in front of criminal laws. As the interest of public is secured, so shall the interest
of a private individual be, as damage is suffered by him or her too. Usually, damage to a
property is a tort in law. But can damage to public property can also be considered as a tort?
When it comes damaging public and private property out of vandalism, riots, or any kind of
intentional violent behaviour will be considered as a crime. The punishment of such crimes
shall be deterrent in nature so that people avoid from getting into similar behaviour in future.
The Prevention of Damage to Public Property Act, 1984 should become stricter.
 INDIA AND UNITED STATES

The right to freedom of speech and expression is provided in the Constitution of India and as
well as in the Constitution of United States. The US constitution among other rights and
freedoms, guarantees the freedom of expression by restricting the Congress from putting any
sort of restriction on the press or the rights of the individuals to speak freely. The Congress
has no power to make law in respect of the restriction of any right. The citizens of US can
also petition the government in case they want a redressal of any grievance.5
Similarly, in India, the Constitution not only provides for the freedom of speech and
expression, but also protects its by making it a fundamental right which shall be possess by
each and every citizen of the country.

INDIA AND UNITED KINGDOM

The citizens of UK also have a freedom of speech and expression which is protected under
Article 10 of the Human Rights Act, 1998. As per this Article every citizen has a right to hold
opinions, share ideas without the interference of the state. But the exercise of this freedom is
limited in certain circumstances as the freedom of expression is a qualified right in UK and it
is necessary in a democratic society to protect a legitimate aim. These circumstances usually
include political matters and matters of public interest. Article 10(2) 6 states that freedom of
expression while being a right, is a duty as well. In the interest of the national security,
territorial integrity, prevention of crime, protection of health, protection of rights, protection
of the reputation, preventing disclosure of information which is received in confidence, and
for maintaining the authority of law and maintaining impartiality in the judicial system.7
Similarly, in India, the citizens enjoy the freedom of speech and expression8 which is
provided and protected under the Constitution of India. But there are certain restrictions as
well. These restrictions include matters of national security, prevention of crime, territorial
integrity, sedition, etc.

5
First amendment of the Constitution of United States
6
Human Right Act, 1998
7
Limits on Freedom of Expression: United Kingdom, https://www.loc.gov/law/help/freedom-
expression/uk.php#_ftn3
8
Article 19(1)(a) of the Constitution of India
 PRECENDENTS OF HIGH COURT AND/OR SUPREME COURT

1. Destruction of Public and Private Properties v/s Government of Andhra Pradesh 9: the
guidelines of this judgement were meant to be strictly followed and implemented.
This judgement contains measures regarding the mass protests and property damage.
It also talks about fixing liability of the offenders and recovering compensation for
damage caused. The liability was fixed not only for the members of the organisations,
but also for the leaders of that organisation.
2. Tehseen S. Poonawala v/s Union of India 10: This case was also filed due to the issue
of mob violence due to freedom of speech and expression. The court propounded that
states had the duty to ensure that individuals or groups did not take the law into their
own hands to prevent untoward incidents and to prevent crime which may include
damage caused to property. The also observed “Mob vigilantism and mob violence
have to be prevented by the governments by taking strict action and by the vigil
society who ought to report such incidents to the state machinery and the police
instead of taking the law into their own hands. Rising intolerance and growing
polarisation expressed through spate of incidents of mob violence cannot be permitted
to become the normal way of life or the normal state of law and order in the country.
Good governance and nation building require sustenance of law and order which is
intricately linked to the preservation of the marrows of our social structure.”
3. Shakti Vahini v/s Union of India11:This case contained the issue of honour killing.
The Court issued directions to the States to take measures to evolve a robust
mechanism to meet the challenges of the agonizing effect of honour crimes by Khap
Panchayats.
4. M.C. Mehta v/s Union of India: In this case, the court observed that there is need to
lay down principles on which liability could be fastened and damages assessed in
cases in which due to behaviour of mobs and riotous groups damaging public and
private property, vandalizing and loss of life and cause injury and damage to innocent
people.

CONCLUSION AND SUGGESTIONS

9
[2009] 5 SCC 212
10
[2018] 6 SC 72
11
[2018] 7 SCC 192
This case boldly brings out the issue of vandalism. The literal meaning of vandalism is an
action of causing destruction of public and private property voluntarily. Vandalism is
increasing day by day. Maybe due to illiteracy, it is easier to alter the mindset of people and
cause such destruction. The lack of strict laws for mob lynching can also be considered as a
reason because people find ways to commit crime and get away with it. Article 19(1)(a) of
the Constitution is being abused by such incidents. It should be well understood by the people
that laws should not be taken in their hands. A proper system of law and order has been made
for a reason.
Vandalism calls for attention of not only of the general public, but also of the leaders of the
political party. These leaders are influential and diverts the minds of the people, especially of
those who are uneducated. The freedom of speech and expression is provided so that the
system of democracy can be established smoothly, so that the citizens of the country have the
power to point out the wrongs taking place in the society, but the law/right has been
definitely misused and the government and the judiciary has to take measures to control it.

REFERENCES

1. Article 19(1)(a) of the Constitution of India

2. Article 19(2) of the Constitution of India
3. Article 32 of the Constitution of India
4. Cinematograph Act, 1952
5. Destruction of Public and Private Properties v/s Government of Andhra Pradesh,
[2009] 5 SCC 212
6. Tehseen S. Poonawala v/s Union of India, [2018] 6 SC 72
7. Shakti Vahini v/s Union of India, [2018] 7 SCC 192
8. First amendment of US Constitution
9. Human Rights Act, 1998 of the European Convention
10. Limits on Freedom of Expression: United Kingdom

BIO OF THE AUTHOR

Anshika Gautam is a student of 3rd year BALLB(Hons.) studying in Symbiosis Law School,
Pune.