The Kerala High Court, on Monday, October 14, said that the witness statements deposed before the Hema Committee amount to “information” upon which legal action must be initiated. The Committee report, which was released in August, revealed rampant sexual harassment in the Malayalam film industry, and the court directed the Special Investigation Team (SIT) probing the allegations to take action. The SIT is also tasked to investigate allegations of substance and alcohol abuse in the industry.
A special HC bench comprising Justices AK Jayasankaran Nambiar and CS Sudha, formed on September 5, to exclusively hear cases related to the Hema Committee, said that during the investigation, survivors must not be forced to give statements and their names should not be made public. First Information Reports (FIRs) registered in this regard are not to be uploaded anywhere or issued to anyone other than the survivors. The accused is entitled to a copy of the FIR only after the final report is filed, the court said.
The SIT has been asked to initiate proceedings under Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This Section gives police officers the power to register an FIR upon receiving information on cognisable offences – offences in which arrest and investigation can be initiated without a warrant or court order. For non-cognisable offences, an investigation cannot be done without a court order.
Under Section 173(3), an investigating officer is empowered to conduct a preliminary enquiry to ascertain whether there is a case. An FIR should be registered within 14 days of the enquiry and if there is a case, the officer can proceed with the investigation.
Agreeing with one of the petitioner’s argument that crimes are not just between individuals but also against society, the court further said that in cases of sexual misconduct, the state must prosecute 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.
During the hearing, advocate Saiby Jose Kidangoor, appearing for producer Sajimon Parayil, who challenged the release of the Hema Committee report, argued that if the SIT is given the power to register cases, there will be an “abuse of law”. However, the court shut him down saying everything cannot be looked at 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 contemplated devising a compensation or insurance structure for junior artists who get injured during film shoots. Further, the court directed the SIT to conduct an investigation and take action into the rampant use of alcohol and drugs in film shooting sets and other connected workplaces, as mentioned in the Hema Committee report.
The bench also orally remarked about actors and celebrities taking up movie characters that depict women in a derogatory manner. "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's derogatory.
However, the bench said that it was not referring to a restriction, but 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 warned the media to protect the identity of survivors while reporting on the Hema Committee. The court said that violations will be viewed as a serious interference with the disposal of justice. The case has been posted to October 28, 2024, for the next hearing.
Earlier, on September 10, the first day of the hearing, the bench had come down heavily 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 special bench was formed on September 5 by the HC, while the court was hearing an appeal filed by producer Sajimon Parayil challenging a single-judge order that allowed the release of the Hema Committee Report.
On July 6, the State Information Commission (SIC) had passed an order directing the Kerala government to issue the Hema Committee report to RTI applicants before July 25, after redacting the names and identities of witnesses. While the report was scheduled to be released by 4 pm on July 24, Sajimon went to court and got a stay claiming that the report would affect his privacy. However, the HC directed to release the report, and it came out on August 13.
The version now available to the public has been heavily redacted to protect the privacy of those who deposed, with all identifiers removed, including the names of the alleged perpetrators. The report, however, has since emboldened many women in the industry to publicly share their traumatic experiences, triggering another #MeToo wave in Kerala.