Mallika Sherawat and the Moral Police: Arbitrary Outrage and Law

The Bombay High Court’s ruling is a lesson for carelessly errant magistrates

In India, sometimes it becomes difficult to distinguish between the magistracy and the moral police. One is frequently jolted by reports of trial court judges issuing summons and arrest warrants against actors and actresses for “obscenity”. These processes, under criminal law, are initiated at the instance of private complainants – those self-anointed guardians of morality and virtue, who are haunted by the spectre of cleavage and skin having a ruinous effect on society.

Sunny Leone, Aamir Khan, Shilpa Shetty, Reema Sen – one could go on and on. They have all borne the brunt of the outrage of offended individuals, who rush to court both out of an itching for publicity as well as a sense of offence and injury. The higher judiciary has not been too successful in reining in these “virtuous” magistrates, and has usually desisted from passing stern rulings which would act as a deterrent.

However, the Bombay High Court’s Nagpur Bench, while ruling in favour of Mallika Sherawat on October 29, has taken a decisive step by strongly commenting on a magistrate for not applying his mind.

Short Clothes, “Obscene” Scenes, and Arbitrary Judges

In 2009, Daluramji Borele, a local businessman of Kelapur in Maharashtra, contended that Sherawat’s attire and steamy scenes in films such as Murder and Shadi Se Pehle were particularly obscene, and must be barred from public viewing. Borele sought to substantiate his claims by providing the testimonies of the vice president of the local municipal council, a mechanic and a carpenter.

The local magistrate did not care to go into the details of these claims, and issued process against the actor. In his order he recorded that going by the oral and documentary evidence, he was of the view that Sherawat should face prosecution for obscenity under Section 292 of the Indian Penal Code.

Strangely, he did not deem it suitable to mention or refer to any particular piece of evidence, or reasons as to how he arrived at this conclusion. It is this arbitrariness that came in for strong criticism from the high court.

The criminal law on obscenity works in a distinctly weird fashion. Anybody can go and file a complaint, and the person complained against does not, under the law, get a chance to defend herself or himself before the court takes cognizance of the matter. And this situation which arises out of Section 204 of the Code of Criminal Procedure has been held as valid by no less than the Supreme Court.

And, as the case makes its way through the alleys of the Indian legal system, the process becomes the punishment. This case itself is an example – it took six years for good sense to prevail, and the summons to be quashed.

Judges Cannot be Super-Censors

Nobody in their right mind would claim that everything is hunky dory with the Central Board of Film Certification (CBFC) more commonly known as the Censor Board. Its track record had compelled the quip – ‘sense and censorship hardly go hand-in-hand in India’.

But its dubious credibility doesn’t give a court the licence to act in violation of the Cinematograph Act, the law governing censorship of films and documentaries in India. Section 5 of the Act makes it abundantly clear that once a film has been cleared by the CBFC, and a certificate has been issued under Section 5A (IA) no court has the power to stall its release, or demand cut(s).

In case an individual is offended or hurt, he has to approach the Censor Board with a plea to review their decision. In 1979, Raj Kapoor’s Satyam Shivam Sundaram faced a similar predicament, and both the trial court and high court gladly ruled in favour of the complainant who must have both blushed and fumed at the contents of the film.

The Supreme Court protected Kapoor from censorious indignation, and held that the CBFC shall have the exclusive word on censorship issues. Of course, this power wasn’t unlimited – any decision of the censors would have to be in consonance with the fundamental right to freedom of expression, and courts would intervene if that right was violated.

The high court, while holding for Sherawat, observed that the magistrate’s actions were driven by ignorance – both of the relevant law and binding Supreme Court precedent, also commenting that they revealed complete non-application of mind.

As of now, the high court has rescued Sherawat from protracted harassment. But would it, and its counterparts in other states, be more proactive in keeping at bay angry prudes and their benefactors from the magistracy?