The Nature of Judicial Power: Gautam Bhatia

This year, a lawyer’s petition before the Bombay High Court, had claimed that the trailers of The State vs. Jolly LL.B 2 (Jolly LLB 2) projected the Indian Judiciary and the Indian Legal System in a derogatory manner. The Court found that there was a  “prima facie” case of Contempt of Court. It constituted a three-member committee (out of which two members were lawyers) to watch the film, and submit their report. The producers moved the Supreme Court. It was argued that the High Court had no jurisdiction to pass the order that it did, because, effectively, it was setting up a parallel censorship mechanism that had no basis in any law.  Instead of deciding the ‘jurisdictional question’, the Supreme Court reposted the case for hearing, one day after the High Court-appointed “committee” was to submit its “report”. The committee recommended the deletion of four scenes from the film. The film’s release date was four days away. The producers had a simple choice: contest this, risk a potentially costly delay and a potential defeat at the end of it – or accept the cuts, and ensure that the film was released on time. The producers attempted a compromise, promising a partial deletion. The Bom HC accepted this compromise, and passed an order requiring deletion and re-certification of the film. The producers duly appeared before the Supreme Court on the next day, and withdrew their petition. 

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The incident (The Bom HC’s Legitimization of Constituting Special Committees to Review Movies) gave a fillip to CBFC to invite Royals and Historians to review “Padmavati”, recently.

Lawyer movies are on the rise in Bollywood. If the shenanigans of the CBFC is anything to go by, it might become routine for CBFC (or even High Court) appointed Lawyer/Retired Judge-Committees to vet movies commenting on the Indian Legal System. This is ‘something uniquely grotesque’ (@gautambhatia88).

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In 2007 we understood as much and in fact acknowledged that advocates as a class are incapable of being defamed. In Shah Rukh Khan v. State of Rajasthan, RLW 2008 (1) Raj 809 – before the Rajasthan High Court – Shah Rukh Khan, a popular Bollywood Actor, challenged the order of the Additional Chief Judicial Magistrate, Kota whereby the Learned Magistrate rejected the Actor’s application for discharge from the criminal offenses allegedly committed by him.

“In 1996, under the direction of Mr. Rajiv Mehra, a Hindi film Ram Jaane was released for public viewing after due certification by the Central Board of Certification. The petitioner played the role of the protagonist in the film. In the later part of the film, the hero is tried for triple murders. In the courtroom scene, the defense lawyer gets up to defend the hero who is, however, bent upon confessing his crime. He, therefore, questions the conduct of the lawyer and says: 

This lawyer well knows that I have killed the three persons, yet he tries to save me. Why? For the sake of money, no? For the sake of money, he sells his morals. He sells the laws. By selling the laws, you people have turned life into a misery.

Ram Jaane

According to the respondent-lawyers, when they went to see the movie in Kota, they found the above-noted dialogue as defamatory against the community of lawyers practicing in India. Because of the said dialogue, the respondents were subjected to ridicule and anger from those who were sitting in the movie theater. They also alleged that their neighbours ridiculed them. Hence, the respondent-lawyers filed a criminal complaint against Mr. Shah Rukh Khan (the petitioner) and others alleging defamation, before the Additional Chief Judicial Magistrate.

The Raj HC observed:

According to Explanation No. (2) of Section 499 IPC, defamation is not restricted to an individual alone; it may also be committed against “a company or an association or collection of persons”. However, the association or collection of persons should be definite and identifiable.

In the case of G. Narasimhan, (1972) 2 SCC 68 the Apex Court clearly stated: “When, therefore, Explanation (2) to Section 499 talks of a collection of persons as capable of being defamed, such collection of persons must mean a definite and a determinate body.” 

In the case of Asha Parekh, 1976 (9) PLJR 108 the Hon’ble Patna High Court dealt with a case where a group of lawyers had filed a defamation case against the actors, the actress, the director, the producer, the script. writer, etc., of the movie Nadan. In that case, the complainant alleged that one of the characters had played the role of an advocate and that there were defamatory statements made against the lawyers as a class. The Hon’ble Patna High Court observed as under: “although the word ‘person’ in Section 499 of the Code includes a company or an association or a collection of persons as well as provided in Explanation 2 of Section 499, but the class of person attributed to must be a small determinate body. Just as the constables of a particular police station formed an indeterminate body and thus were not capable of being defamed (Gopal Bandu Das, AIR 1922 Pat 101: 23 Cri LJ 433, advocates in general are incapable of being defamed. I have no manner of doubt that advocates as a class are incapable of being defamed.”

Thus, the law requires that the defamatory statement, in order to be actionable, be made against a definite and an identifiable group. However, lawyers taken as a class cannot be identified with any particular individual – indeterminate, indefinite, and unidentifiable as the members are: First, the members of this class are too varied to be reduced to a few traits. Their is not a homogenous class, but a heterogeneous one, made up of wonderfully different individuals. Secondly, they are spread over the length and the breadth of the land. Thirdly, the class is always in flux, ever changing, as new lawyers enter and old ones depart the profession. The entire members of the class are clearly unidentifiable and indeterminable. Moreover, it is not the case of the respondent-lawyers, that the Petitioner said anything specific about the lawyers of Kota, who arguably would form a definite collection of persons. The remark made by the petitioner was applicable to the lawyers as a community. Thus, a group of lawyers could not file a complaint against the petitioner. Therefore, the complaint is not even maintainable.

Clearly, Ram Jaane is no more defamatory of the legal profession than Charles Dickens’s Bleak House (1857) was defamatory of the barristers who argue a case of inheritance for generations till there is nothing left for the inheritors, all inheritance having gone to the learned barristers… In the 150 years that the novel has been in vogue, no barrister has thought of suing either the Dickens’s estate or the publishers who continue to print and distribute the novel that has done more to reform the Judiciary than many an act of the Parliament.

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Attorney and Client: Fortitude and Impatience by Hablot Knight Browne for Bleak House, p. 388 (ch. 34, “Attorney and Client”).

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In the Jolly LLB 2 matter, there was the question of undermining the dignity of the Judiciary and the matter as such transcended the ‘defamation of advocates’ threshold as noticed in the Ram Jaane Appeal. Can the ‘parallel censorship mechanism’ be justified on that ground alone? There is no moral assurance that the CBFC or a High Court will not in future approve of a committee of lawyers vetting a movie that makes fun of lawyers, even though the unopposed ‘parallel censorship mechanisms’ created, have till now only been reserved for the honor of Royals and Judges. Either we await that catastrophe, or the SC may be invited to answer questions pertaining to the powers and duties of the Censor Board, through a simple public interest litigation.