Creative Discretion & Liberty Has To Be Judged From Impact It Will Have On General Public Perception: Kerala High Court

The petitioner's theatre organisation has approached the Kerala High Court challenging the order of a Sub Divisional Magistrate directing them to alter the name of their drama called as 'Governorum Thoppiyum' on the misunderstanding that it was made as a reference to the Governor of Kerala.

“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”, stated Justice Devan Ramachandran

The petitioner-NATAK is an organization of artists, writers and activists registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, of 1955. They had organized a drama called 'Governorum Thoppiyum' for showing during the Cochin Carnival in December 2023. It was interdicted by an order to alter the drama's name by the Sub Divisional Magistrate, Fort Kochi.

The petitioner contended that the order issued by the Sub-Divisional Magistrate was a colourable exercise of power and manifestly against the law. It was argued that the drama 'Governorum Thoppiyum' was an adaptation of the famous novel by Friedrich Schiller, titled 'William Tell' and the title was given to reflect upon the lead character of the play. It was argued that if anyone views the drama, they would understand that there was no reference made to the Governor of Kerala, but only to the lead character in the play.

The Government Pleader submitted that the writ petition was not maintainable now since the Cochin Carnival was over and the petitioner need not have approached the Court after the event was over. It was also submitted that the Sub-Divisional Magistrate acted as the Chairperson of the Carnival Committee and was only verifying the performance to ensure that there were no law and order issues. It was also argued that the script of the drama was found objectionable to constitutional functionaries, and would have led to unrest and upheaval during the carnival.

It also found that the petitioner states that the drama has no reference to constitutional functionaries but only refers to the lead character in the play and that it was only an adaptation of another famous novel.

The Court stated that issues of such nature have to be considered on a case-to-case basis and the order stating that the drama was intended to degenerate constitutional functionaries was stretching it too far. It said: “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.”

The Court also took note of the submissions that the order of the Sub-divisional Magistrate was not issued as a general injunction but was only meant to prevent law and order issues during the carnival. It added:  “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”.

However, the Court closed the writ petition since the Cochin carnival was already over. 

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

Counsel for the Respondents: Government Pleader Vidya Kuriakose

Citation: 2024 LiveLaw (Ker) 174

Case title: NATAK v State of Kerala

Case number: WP(C) NO. 6343 OF 2024

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