Right To Constructively Criticize & Be Critical Is Inherent In A Democracy, But Subject To Reasonable Restrictions: Kerala HC

The Kerala High Court remarked that right to constructively criticize and be critical is inherent in a democracy but subject to reasonable restrictions. 

The Court was deciding a writ petition filed by an association registered under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and was an organisation of artists, writers, and activists “working in areas associated with theatre”.

A Single Bench of Justice Devan Ramachandran said, “The holdings in Ext.P1, that a play which is intended to denigrate constitutional functionaries cannot be allowed, perhaps is taking issues too far; and this will certainly depend on case to case. An omnibus declaration of such nature will not behoove a constitutional democracy, since the right to constructively criticize and be critical, is fundamental to the nature of such systems and which is inherent, but subject to reasonable restrictions.”

Advocate K.N. Abhilash appeared for the petitioner while Government Pleader Vidya Kuriakose appeared for the respondents.

In this case, the petitioner association stated that they proposed to host a drama by name “Governorum Thoppiyum”, as part of the “Cochin Carnival”, proposed in December, 2023; but that this was interdicted by the Sub Divisional Magistrate, Fort Kochi, through Ext.P1. They asserted that Ext.P1 was a product of colourable exercise of power and was manifestly in violation of law. The counsel for the petitioner explained that the drama in question was an adaptation of the famous work of Friedrich Schiller, titled “William Tell” and that the title given by his client was only a reflection of the lead character in the play.

He submitted that however, the Sub Divisional Magistrate appears to have misunderstood this to be a reference to the Governor of Kerala and hence issued Ext.P1, stipulating that the title of the drama ought to be altered since it denigrates persons holding constitutional posts. The counsel argued that, if one is to go through the script of the drama, or if the performance is to be viewed, it would become manifest that there is not even a whispering reference to the Governor of Kerala, but only to the character in the play. He thus prayed that Ext.P1 be set aside.

The High Court in the above regard noted, “That said, it is the specific contention of the petitioner, as I have already recorded above, that the play in question has no reference to or reflection on, any constitutional functionaries; and that its title has connection only to its lead character. Coupled with this, is the assertion that the Drama is an adaptation of Friedrich Schiller's novel, titled “William Tell”; and obviously, therefore, creative discretion and liberties will have to be judged from the angle of impact, it may have on general public perceptions.”

Furthermore, the Court observed that the specific contention of the Government Pleader is that, Ext.P1 is not intended to be a general injunction against the petitioner, but was only for the “Cochin Carnival”, which was expected to attract a large number of people; and thus designed to ensure that there were no law and order issues, or chances of skirmishes or such violence, on account of the impact that the Drama may have on multifarious sections of people.

“I find favour with the afore submissions of the learned Government Pleader because, Ext.P1 only mandated that the petitioner must alter the title of the Drama; and that if it is not so, then any consequences of its performance would have to be borne by the petitioner. The Sub-Divisional Magistrate was certainly referring to the consequences of a law and order breach and nothing else, to the best assessment of any person who reads Ext.P1 in its proper perspective”, it added.

The Court concluded that the writ petition does not require to be considered by it any further on its merits, especially when the Government Pleader says that Ext.P1 was intended only for the “Cochin Carnival” and for no other.

Accordingly, the High Court closed the writ petition.

Cause Title- Natak [REGD. NO-TSR/TC/135/2018] v. State of Kerala & Ors. (Neutral Citation: 2024:KER:18756)

Appearance:

Petitioner: Advocates K.N. Abhilash, Sunil Nair Palakkat, Rishi Varma T.R., Rithik S. Anand, K.M. Tintu, Sreelakshmi Menon P. and Anu Paul.

Respondents: GP Vidya Kuriakose

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