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Mockery of the law

There is something wrong with our legal, moral, and social priorities when a court in Jaipur can issue a warrant of arrest against an American actor for planting a kiss on the cheek of a Bollywood actress at a public function — but no law enforcement agency in the country is prepared to take action against Shiv Sena chief Bal Thackeray for inciting his supporters to indulge in violence. Thanks to a Jaipur magistrate's order, Richard Gere runs the risk of being arrested for his playful, Bollywood-parody of affection. But Mr. Thackeray — who has called for the burning of all copies of Richard Laine's Shivaji: Hindu King in Islamic India (Oxford University Press, 2003) now that the Bombay High Court, following the Supreme Court's quashing of criminal proceedings against the author, has lifted the Maharashtra government's senseless ban on that scholarly book — is sitting pretty. Is the Gere case a one-off instance of a lack of application of the judicial mind? Every year mischievous litigants and publicity seekers with plenty of time and little work on their hands file `obscenity' cases, or other frivolous complaints invoking draconian provisions of the Indian Penal Code up and down the country against actors, cultural personalities, writers, and journalists. Many lower courts are surprisingly indulgent towards such petitions.

To be sure, the respondents are almost always exonerated but not before being forced to make one or several court appearances over a period of months if not years. When the process is the punishment, the eventual acquittal is poor consolation. Under the rule of law, citizens have a legitimate right to expect a proper application of the judicial mind before cases are entertained and summons and arrest warrants issued. It is really up to the higher judiciary to ensure that the Indian criminal justice system does not continue to be abused in a way that can make it the laughing-stock of the world. The reference point for all such cases is what the Supreme Court of India elaborated in its landmark free speech judgment on the film Ore Oru Gramathile (S. Rangarajan vs. P. Jagjivan Ram & Ors., 1989). The court held that the yardstick for judging whether anything was inflammatory or, by extension, obscene, was the perception of an ordinary person "with common sense and prudence and not that of an out of the ordinary or hypersensitive" individual. Litigants who feel the urge to rush to court because of a send-up kiss or an actress's mode of dress or a historical biography are precisely the kind of "hypersensitive" individuals the Supreme Court had in mind. Such cases must be given short shrift with deterrent penalties imposed on the mischief-makers.

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