Observing that a section of society may perceive homosexuality as akin to “social evils”, the Supreme Court has effectively pushed into cold storage the release of a Gujarati film that depicts the “sufferings of a homosexual” prince from the state.
While admitting an appeal by Gujarat against a High Court order allowing entertainment tax exemption to the film, a bench of Justices Anil R Dave and Adarsh K Goel on Tuesday granted leave in the matter. The bench also stated that its interim order, denying tax exemption to K R Devmani’s Meghdhanyshya — The colour of life, shall continue.
Granting leave, as per court procedure, means that the case would be heard only after arguments in all cases, filed and admitted for hearing before it, are concluded. In effect, Devmani’s case, filed in 2014, will not be listed for hearing in ordinary course at least for three years from now.
Meghdhanyshya — The colour of life is based on the true story of the “gay prince of Rajpipla”, Manvendra Singh Gohil, and has been cleared by the Censor Board.
“I think the movie is killed,” Devmani told The Indian Express. “It cannot wait for another three or four years when there is no certainty that the court will eventually rule in my favour. It is ironical that movies showing extra-marital relationships and containing scenes of rape and violence are given the exemption but a movie depicting sufferings of a homosexual person does not pass the state’s muster,” he added.
The Gujarat government grants 100 per cent exemption from entertainment tax to all Gujarati colour films produced after April 1, 1997. This relief, however, is not meant for films depicting evil customs, blind faith, sati, dowry and such “social evils,” and those “against national unity”.
But Devmani’s movie was denied exemption by the State Tax Commissioner, who said that it would send a message that the state was endorsing and encouraging homosexuality, and would create friction in the society. He added that “no decent family” can watch the movie.
When Devmani moved the High Court, Gujarat’s counsel argued that “the film will be a threat to the national unity” and that it promotes an activity defined as an offence under Section 377 (unnatural sex) of the IPC. The state also argued that the movie depicts “social evil” and is “opposed to public policy”.
Devmani argued that the Tax Commissioner cannot play the “super Censor Board”. “Denying tax concession because subject is controversial or unpopular is hostile discrimination and curtails fundamental right to freedom of speech and expression. Being homosexual is not illegal per se under Section 377, IPC,” he argued.
In February 2014, the Gujarat High Court snubbed the government, saying its decision deprived Devmani of his fundamental right to freedom of expression, and held that a movie cannot be stalled only because it is based on a controversial subject.
It was then that the state government approached the Supreme Court, contending it had denied tax exemption after considering the “social structure” and “public policy” as the movie came under the ambit of showing “social evils”.
Last April, the apex court stayed the High Court order. In October, it said the matter should be listed in the second week of January 2015 for a final hearing, as one of the judges on the bench wanted to examine the issue in detail.
However, the matter got listed only on Tuesday. Appearing for Devmani, senior advocate Anand Grover told the bench: “If my lords are granting leave in this matter, it would virtually mean I have lost the case since a movie cannot wait so long for a decision.”
The bench responded: “If you think like this, let that be. We have already passed our order.”
Grover argued that personal views had nothing to do with the case and that the movie can be denied tax exemption only if it depicts “evil customs, blind faith, sati, dowry and such social evils and those which are against the national unity.”
He pointed out that another movie on the subject of homosexuality, ‘I am’ by filmmaker Onir, was in fact given the National Award for the best film. The bench responded: “We agree there can be different views. We know your personal views. But there are people in whose views this may be akin to social evils.”
It said that Devmani can release the movie without seeking tax exemption. But Grover pointed out that apart from the “small-time” filmmaker’s financial compulsions, the issue also relates to an individual’s fundamental right to speech and expression, along with his right to equality with other filmmakers who have been given this benefit.
The bench, however, remained unimpressed. Incidentally, the bench had first passed its order in the absence of Grover, who later appeared and protested. The court then heard him for a few minutes and reiterated its order.