Book excerpt: Soli Sorabjee: Life and Times by Abhinav Chandrachud | Tamas and the case for free speech

A Muslim businessman filed a writ petition in the Bombay High Court and asked that Doordarshan be directed to stop showing the serial. On 21 January 1988 (Thursday), five days after the second episode had aired on television, and two days before the third episode was due to air that Saturday, a single judge of the Bombay High Court, Justice S.C. Pratap, issued an interim order restraining Doordarshan from showing the serial. He directed the parties to arrange a special screening for him that Saturday, so that he could decide whether the series was fit to be continued on air. Justice Pratap’s order was passed at around 1.15 p.m. However, at 2.45 p.m. on the same day, after the lunch break (which lasted between 2 p.m. and 2.45 p.m.) an appeal was filed before a division bench of the Bombay High Court. The appeal bench consisted of Justice B. Lentin and Justice Sujata Manohar, the first female judge of the Bombay High Court (she later went on to become the first female Chief Justice of the Bombay High Court, and a Supreme Court judge). Incidentally, Justice Manohar was the judge who had directed Stardust magazine to reveal its sources in the Bollywood actress libel suit—an order which Sorabjee had been successful in overturning on appeal. The bench decided to urgently see the entire Tamas series that following day (Friday) in order to decide whether it could be shown on television on Saturday.

On 22 January 1988 (Friday), a court holiday, Justice Lentin and Justice Manohar viewed all six episodes of Tamas between 10.45 a.m. and 4.30 p.m. at the ‘Blaze Minuet’, a high-end preview theater in Colaba, Bombay. The following day, a photograph appeared in the Times of India of the two judges ‘engrossed in discussion’ about the merits of the show at the Blaze Minuet, with Justice Lentin characteristically clutching his tobacco pipe in his right hand. The judgment of the court was delivered later that day at Justice Lentin’s residence, as it was a Saturday. The court allowed the appeal and permitted Tamas to be shown on television that night. In a powerful judgment, the court wrote: ‘Yes, violence has been depicted. But then, such was exactly the tragic past. Tamas is not entertainment. It is history. And you cannot wish away history simply by brushing it under the carpet.’ In a strong passage, the court held that even illiterate people in India, who might see the show, were not devoid of common sense. Even they would be able to understand that the fundamentalists and extremists depicted on screen were wrong to engage in violence.

Though the third episode was shown on television that night, the matter was far from over. Nihalani received two threatening phone calls and was subsequently provided an armed security guard by the Bombay police. The BJYM held a protest at Worli in Bombay, outside the office of Doordarshan. The Shiv Sena threatened to hold processions to protest the airing of the series. The general secretary of the BJP, Krishan Lal Sharma, said that Tamas was a ‘perverse piece and a distortion of history’. The Delhi police lathi-charged a group of protestors who turned violent outside the Doordarshan office.

In the meantime, tensions simmered at the Bombay High Court when Justice Pratap, whose order had been appealed against, requested the Chief Justice to assign the Tamas case to some other judge, when the case came up before him for further directions on 28 January. Pratap felt that Nihalani had abused the process of the court by filing an appeal against his interim order on the same day. He too would have been willing to watch the film on 22 January if the parties had asked him to, he said. ‘What was the grave urgency to act in this manner?’ he asked in his order, adding, ‘Were [the] heavens going to fall in the meanwhile?’ In turn, Justice Lentin remarked that they had to see the show because of the urgency of the case, since Justice Pratap was unable to see it on Friday. ‘We had no pleasure to waste a Friday (January 22) to see “Tamas”’, he said, adding that they had better things to do than ‘breaking [one’s] backs and ruining [one’s] eyes’ by watching the series. Each episode was between 50 and 55 minutes in length. ‘It was sheer hell’, Justice Lentin said. Senior lawyers at the Bombay High Court were divided over the question of whether the appeal court ought to have intervened when Justice Pratap was already seized of the matter.

However, while this tussle was taking place at the Bombay High Court, the matter reached the Supreme Court. Sorabjee was engaged by Nihalani to argue the cause of free speech. The standard for judging the serial, Sorabjee submitted to the bench of two judges of the Supreme Court, was not that of a fanatic. ‘If beauty lay in the eyes of the beholder’, he argued, ‘then smut lay in the eyes of one who was inclined to view things in a distorted manner’. When his opponent argued that truth, in some cases, had to be suppressed as truth was more dangerous than fiction, Sorabjee responded that it was strange that his ‘learned friend’ (the customary appellation for one’s opponent in court) spoke of suppressing the truth though India’s national emblem had the motto ‘Satyameva Jayate’ or ‘the truth always triumphs’. The court dismissed the appeal against the Bombay High Court’s judgment, and said that it would issue its reasons later on. The demonstrations against the serial, however, continued. Three days after the Supreme Court’s decision, the police in Hyderabad opened fire on BJP demonstrators who were protesting outside Doordarshan’s office. The police claimed that the protest had turned violent, though this was denied by the BJP’s leadership. Ironically, thousands of people thronged to buy the Tamas novel—far more than would have probably even heard about the book had the protests against the television series not taken place.

In the meantime, the sixth and final episode of Tamas aired on 13 February 1988. The Supreme Court delivered its judgment in the Tamas case a few days later, on 16 February. Accepting Sorabjee’s arguments, the court held that the test to be applied in such cases was not whether a fanatic would be unhappy after watching the show. The series had to be ‘judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view’. The test in free speech cases, said the court, must be formulated in such a manner that ‘we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read’. The court noted that Tamas had been cleared by the censor board. The court relied on the judgment delivered by the Bombay High Court, as the High Court’s judges had actually seen the show. Though Justices Lentin and Manohar were ‘two experienced Judges of one of the premier High Courts of this country’, and though average Indians may not have been ‘as sober and experienced’ as them, they had seen the film ‘from an average, healthy and commonsense point of view’, which was the correct yardstick to apply in such cases. Despite the fact that there were protests and scenes of violence occurring in the country, the court found that there was no apprehension that Tamas would be ‘likely to affect public order’ or incite the commission of an offence.

After the Freedom First case, decided by the Bombay High Court during the Emergency, Sorabjee had won his first major free speech case at the Supreme Court. Incidentally, the political party which entertained the greatest grievance against the airing of Tamas would one day form the government at the Centre and appoint Sorabjee as its Attorney General.

Excerpted from Soli Sorabjee: Life and Times by Abhinav Chandrachud, with permission from Penguin Random House India.