In February 2017, a prominent Malayalam (Mollywood) film industry actress was abducted and sexually assaulted by a gang of men in a speeding car in Kochi. Actor-survivor co-worker and lead actor Dileep is named as a defendant/conspirator for paying money to sexually assault him and tape the crime on camera. A criminal case has been registered and is still awaiting trial. About 20 witnesses have become hostile to the prosecution given the defendant’s powerful influence, and recently a new case was filed against a defendant accused of threatening investigators with dire consequences.
This incident, however, triggered a series of complaints by actresses, highlighting the victimization of actresses due to the practice of casting couch widespread in the Malayalam film industry and the resulting “sexual harassment”. A memorandum (to shed light on the discrimination and harassment faced by female performers in Mollywood) was submitted by the Women in Cinema Collective (WCC) to Chief Minister Pinarayi Vijayan, who then spearheaded the creation of a three-member committee under the chairmanship of a retired High Court judge, Justice K. Hema, tasked with making recommendations for the implementation of ‘gender justice in Malayalam cinema’. The committee was set up on July 1, 2017 and after two years, on December 31, 2019, a 5000-page report was submitted. Since then, the report has remained “confidential” due to the “sensitivity” of the information it contains. All of RTI’s requests for disclosure of the report were denied. According to recent reports, the Committee’s recommendations are currently being analyzed and studied by relevant officials working in the Department of Cultural Affairs.
The word “information” as described in the Right to Information Act 2005 (Section 2(f)) means and includes “any material in any form, including…reports…to which a public authority may access under any other law for the time being in force”. Section 3 of the Act confers a “right” to such “information” on all citizens “subject to the provisions of this Act”.
While the need to prevent disclosure of ‘sensitive’ information is paramount and therefore the need to keep a ‘confidential’ record, one cannot be blinded to the fact that this ‘duty’ must be balanced with other “right(s)” that exist in law, as long as this “information” is “severable”. Neither the Committee member(s) nor the State Government have commented on the “severability” of the information contained in said report and have instead (by speech and conduct) treated the contents of the report as being “entirely” confidential. A reading of Sections 8 and 10 of the Right to Information Act 2005 together makes it clear that although there is no obligation to give a citizen, “…information the disclosure of which would put endanger the life or physical safety of any person or identify the source of the information…” and/or “…information relating to personal information the disclosure of which would result in an unjustified invasion of the privacy of the individual…”, “access may be granted to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be separated from any part containing exempt information”.
Two years have passed since the presentation of the report and, for reasons well known to the state government, even the “list of recommendations” made by the Committee has not seen the light of day, let alone made known. of the WCC, who, being aware of the “felt needs” of female artists, could have made constructive suggestions and thus helped the state government and its instruments to define the future course of action, as promised, to put in place tailor-made guidelines for the film industry in Kerala.
As much as the measure of setting up a committee was a seemingly serious step taken by the government in pursuit of the need to ensure that “No woman shall be subjected to sexual harassment in any workplace”, the expression “place of work” including “2(v) any place visited by the employee by reason of or in the course of employment, including transportation provided by the employer to undertake such travel…”, the question to which to be answered is whether the “non-disclosure” of the contents of the commission’s report (i.e. withholding information) results in providing a solution to the problem it set out to solve. A segway to this question is whether the state government’s inaction over the past two years since the submission of the report is, at all, justified given that victims have been forced to present their accounts on various cases of sexual harassment before the members of the Committee in the hope that their grievances would be taken into account and that the perpetrators would no longer be allowed to be unharmed.
It is undeniable that there are laws in place for the redress of grievances in cases of sexual assault, sexual harassment, sexual harassment in the workplace and sexual violence in general, an example being the sexual harassment of women. at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which was enacted to ensure that women’s constitutional rights under Sections 19(1)(g) and 21 of the Constitution are not violated but are more meaningful. There is also the state policy named NIRBHAYA which was formulated by the government of Kerala and came into force on March 13, 2012 to combat sexual violence and sex trafficking of women and children.
A radical position on the question in question would then be whether it was necessary to create such a committee when all that was needed was to implement the law already in place. But since such a report was prepared at the behest of the state government to determine and/or suggest the way forward, maintaining absolute silence on this issue and keeping the victims in the dark, the content of the report does not move in any direction. In the absence of any forthcoming affirmative action from the Kerala state government based on the submitted report, it would be difficult to judge this silence/confidentiality maintained by the state government as a “proactive measure “aimed at guaranteeing women artists (and/or artists in general) protection against sexual harassment and thus guaranteeing that their right to exercise their profession without fear or favor is not infringed.
The guidelines given in the Supreme Court’s decision in Vishaka v. state of rajasthan [reported in (1997) 6 SCC 241], even after 24 years of its declaration, remains an illusion. The film industry benefits from the lack of regulation within it, and it is surprising that despite the mandate given to the Hema Commission, the report is not shared even with stakeholders/aggrieved parties. It now appears from the events that have unfolded so far that the witness who came to testify before the commission testified in vain.
Article by Daisy Hannah, Registered Barrister, Supreme Court of India. Opinions are personal.