Wednesday February 08, 2023

Unnecessary censorship suffocates a society: SHC

November 26, 2022

KARACHI: The Sindh High Court on Friday said that transgender persons are equal citizens of Pakistan in all respects, and the stories of their lives, their struggles, and their human relationships deserve equal space and recognition.

Issuing a detailed order on a petition against the release of the Pakistani motion picture film “Joyland,” the SHC’s division bench, comprised of Chief Justice Ahmed Ali M Sheikh and Justice Yousuf Ali Sayeed, said that unnecessary censorship suffocates a society and stifles its creativity and growth.

Dismissing the petition against the exhibition of Joyland in cinemas, the judges observed that they were confident that Islam, being the great global religion that it is, is strong enough to withstand a cinematic work portraying a purely fictional account of a relationship humanising a transgender character.

The judges said that they were equally sanguine that Pakistani society is not so weak as to crumble as a consequence. The court observed that where a cinematic work has passed through the censors, who have examined its content and cleared it for release with the appropriate certification, an individual cannot be allowed to trump that decision through a court proceeding based on his conception of morality.

The court said that it is not its function under Article 199 to make a moral judgment to curtail the freedom of speech and expression of a filmmaker, as safeguarded under Article 19 of the Constitution.

The court observed that the default position of the court under Article 199 ought to be that of fully safeguarding the fundamental right by giving as expansive an interpretation to Article 19 as possible and, in the event of a restriction being imposed by the board or any other authority that may be competent in that regard, testing the reasonableness of that restriction stringently to ensure that the same is reasonable in the strictest conceivable sense.

The court said that, in the absence of any restriction imposed by the concerned quarter, whether it be the board or the provincial government, it is not the court’s responsibility to morally police the public by deciding what should or should not be viewed and to take on the function of devising and imposing a restriction.

The court stated that unnecessary censorship suffocates a society and stifles its creativity and growth. The court observed that the petitioner did not point out any legal flaw or procedural lapse in the certification process and merely sought to argue that the theme and content of the work offended the Constitution.

It said observed that the petitioner did not make any attempt to show how any articles of the Constitution would be violated by the screening of the film other than limiting his argument to the extent that the theme and storyline thereof offended Article 227 of the Constitution.

The court observed that the petitioner could not cite any instance of any transgression when asked whether the film in question contained any vilification of Islam, its sacred texts, or any religious place or personage, or indeed contained any content whatsoever that otherwise violated any law.

The court observed that the petitioner conceded that he had no empirical knowledge of the matter at all, as he had not viewed the film or any part thereof. The court observed that the petitioner’s admission aptly demonstrates the superficiality of his contentions and the frivolity of his claim.

It said that the petitioner also does not properly qualify as an aggrieved person for Article 199, as his fundamental rights have not been infringed. The court observed that the petitioner has had the privilege of exercising a personal choice and has done so by opting not to view the film, but cannot claim a personal grievance if a similar privilege is allowed to others. Petitioner Moulvi Iqbal Haider had requested in the petition that the exhibition of the film be banned as it portrays a relationship between a married man and a transgender person.