Kochi: The Kerala High Court on Monday ruled that the witness statements presented before the Hema Committee constitute "information" upon which legal action must be taken.
The Committee report, which was released in August, found widespread sexual harassment in the Malayalam cinema industry, and the court ordered the Special Investigation Team (SIT) investigating the charges to take action. The SIT is also entrusted with investigating complaints of substance and alcohol abuse within this industry.
A special High Court bench composed of Justices AK Jayasankaran Nambiar and CS Sudha, which was appointed on September 5 to hear issues pertaining to the Hema Committee, ruled that survivors should not be coerced to submit testimony or have their names made public during the probe.
First Information Reports (FIRs) registered in this respect are not to be posted or distributed to anybody other than the survivors. According to the court, the accused is only entitled to a copy of the FIR once the final report has been filed.
The SIT has been directed to commence proceedings under Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This Section empowers police personnel to file an FIR after receiving information about cognisable offences - offences for which arrest and investigation can be commenced without a warrant or court order. A court order is required to conduct an investigation into non-cognisable offences.
Section 173(3) authorises an investigating officer to conduct an initial investigation to determine whether there is a case. An FIR should be filed within 14 days of the inquiry, and if there is a case, the officer can move further with the investigation.
The court agreed with one of the petitioners' arguments that crimes are committed not just between people but also against society, and it added that in cases of sexual misbehaviour, the state must punish the accused on behalf of the survivors.
“The SIT on registration of a crime, shall take necessary steps to contact the victims/survivors and record their statements. In case the witnesses do not cooperate, and there are no materials to proceed with the case, appropriate steps as contemplated under Section 176 of the BNSS shall be taken,” the bench said. Section 176 deals with the procedure of investigation, the News Minute reported.
During the hearing, advocate Saiby Jose Kidangoor, representing producer Sajimon Parayil, who contested the release of the Hema Committee report, contended that granting the SIT the power to register cases would be an "abuse of law". However, the court shut him down, stating that everything cannot be viewed from the perspective of a man.
“When a victim comes and files a statement it has to be taken from the victim’s perception. You cannot construe everything from the point of view of a man… understand that it is for the trial court to decide whether an offence is made out or not. When a crime is registered based on a statement of the victim a lot of factors are to be considered, the nature of the relationship between the victim and accused, the circumstance of the alleged act, the intention behind it etc,” the HC bench said.
During the hearing, the court also considered creating a compensation or insurance mechanism for junior artists who are wounded on film sets.
Furthermore, the court asked the SIT to investigate and take action on the widespread use of alcohol and drugs on film sets and other related industries, as noted in the Hema Committee report. The bench also commented orally on actors and celebrities portraying women in derogatory ways in films.
"If a famous actor portrays himself or herself in a role which is derogatory towards women, they may claim artistic freedom, but what message is being sent? When you're influential, your rights are reduced to that extent, and you bear greater responsibility,” the court observed and asked if an artist can claim fundamental freedom above all, even when it is derogatory.
However, the bench stated that it was not referring to a restriction, but rather self-restraint. “We're discussing self-restraint, not restrictions. Celebrities often avoid endorsing harmful products. A person with influence has a responsibility to make ethical decisions,” the bench observed.
The bench also admonished the media to preserve survivors' identities when reporting on the Hema Committee. The court stated that violations will be treated as significant interference with the administration of justice. The next hearing in this case has been set for October 28, 2024. Previously, on September 10, the first day of the hearing, the bench had come down harshly on the state government for its inaction on the depositions in the report.
“We are surprised by this inaction. When it received the report or when DGP was given a copy in Feb 2021, some action must have been taken. Assuring confidentiality of women, we understand that. But the state govt is confronted with practices derogatory to women, what has it done? What is it that you are doing to address problems facing women, not just in cinema?” the court asked.
The HC constituted the special bench on September 5 while hearing an appeal filed by producer Sajimon Parayil contesting a single-judge ruling allowing the release of the Hema Committee Report.
On July 6, the State Information Commission (SIC) issued an order mandating the Kerala government to provide the Hema Committee report to RTI petitioners by July 25, after redacting the names and identities of witnesses. While the report was set to be disclosed by 4 p.m. on July 24, Sajimon went to court and obtained a stay, saying that the report would violate his privacy. However, the HC directed that the report be released, which was done on August 13.
The version made accessible to the public has been severely redacted to preserve the privacy of individuals who deposed, with all identification erased, including the names of the alleged perpetrators. The report, however, has inspired many women in the sector to openly reveal their horrible experiences, sparking another #MeToo wave in Kerala.