The ‘Tamas’ Case: Partition, Free Speech, And Tensions Inside And Outside Court

From its slow beginnings in earlier decades, television in India in the 1980s had come a long way. Black and white television sets in India were replaced by colour TV around 1982 when the Asian Games were held in Delhi. Things drastically changed, however, with the INSAT-1B satellite being launched in 1983. In 1984, India’s first indigenous Hindi serial, Hum Log, aired on television at 9:20 p.m. The 22-minute episodes, shown on television between 1984-85, were a huge success. Touching on social themes like alcoholism, domestic abuse, dowry, respect for elders, and so on, each episode typically ended with the famous Bollywood actor, Ashok Kumar, explaining the moral of the story to viewers. Some 50 million viewers across the country tuned in to watch Hum Log, on around 6 million TV sets. In the commercial break, viewers saw advertisements for a new product called Maggi Noodles.

After the last episode of Hum Log aired in December 1986, a number of popular Indian serials appeared on television in the coming years. Buniyad, which aired between 1986-87, and Ramayana, which started in 1987, were crowd favorites. By 1987, India had 80 million television viewers, accounting for around 10% of the population. It was against this silent small-screen revolution which was occurring on Indian television that in August 1987, Govind Nihalani wrapped up the shooting for his much-anticipated new Hindi television serial, Tamas. Set in partition-era Lahore, Nihalani’s Tamas was based on a Hindi novel written by Bhisham Sahni, which had won the Sahitya Academy Award in 1975, though some details from the novel were changed in the television show. A six-part Hindi series, Tamas portrayed scenes of Hindu-Muslim communal violence during India’s partition.

The first two episodes of Tamas aired on the second and third Saturday of January 1988. They were shown at 9:50 p.m. after the news in English. A few days after the second episode aired on television, the Bharatiya Janata Party and the Bharatiya Janata Yuva Morcha held demonstrations at Doordarshan centers to protest against some scenes in Tamas. The young president of the BJYM, Pramod Mahajan, held a press conference and demanded that Doordarshan withdraw the serial as it was provocative and would jeopardize communal harmony in India. At a protest held in Amritsar, effigies were burned of the writer and producer of the serial. Hindu political organizations were unhappy over the fact that Tamas appeared to portray Hindus in a negative light and as being responsible for partition, though Nihalani denied that this was the message of the series. One scene, in which a Hindu boy killed a Muslim perfume-seller saying that his “Guruji” had directed him to do so, was particularly controversial. Another scene, in which a dead animal was dumped outside a house of worship, also raised eyebrows.

A Muslim businessman filed a writ petition in the Bombay High Court and asked that Doordarshan be directed to stop showing the serial. On Thursday, Jan. 21, 1988, five days after the second episode had aired on television, and two days before the third episode was due to air that Saturday, a judge of the Bombay High Court, Justice SC Pratap, passed an interim order restraining Doordarshan from showing the serial. He directed the parties to arrange for a special screening for him that Saturday so that he could decide whether the series was fit to be continued on air. Justice Pratap’s order was passed at around 1:15 p.m. However, at 2:45 p.m. on the same day, after the lunch-break at the Bombay High Court (which lasted between 2 p.m. – 2.45 p.m.), an appeal was filed before a division bench of the Bombay High Court. The appeal bench consisted of Justice B Lentin and Justice Sujata Manohar, the first female judge of the Bombay High Court (she later went on to become the first female Chief Justice of the Bombay High Court, and a Supreme Court judge). The bench decided to urgently see the entire Tamas series that following day (Friday) in order to decide whether it could be shown on television on Saturday.

On Friday, Jan. 22, 1988, a court holiday, Justice Lentin, and Justice Manohar viewed all six episodes of Tamas between 10:45 a.m. and 4:30 p.m. at the “Blaze Minuet”, a high-end preview theater in Colaba, Bombay. The following day, a photograph appeared in the Times of India of the two judges “engrossed in discussion” about the merits of the film at the Blaze Minuet, with Justice Lentin characteristically clutching his tobacco pipe in his right hand. The judgment of the court was delivered later that day at Justice Lentin’s residence, as it was a Saturday. The court allowed the appeal and permitted Tamas to be shown on television that night. In a powerful judgment, the court wrote: “Yes, violence has been depicted. But then, such was exactly the tragic past. Tamas is not entertainment. It is history. And you cannot wish away history simply by brushing it under the carpet.” In a strong passage, the court held that even illiterate people in India, who might see the show, were not devoid of common sense. Even they would be able to understand that the fundamentalists and extremists depicted on screen were wrong to engage in violence.

Though the third episode was shown on television that night, the matter was far from over. Nihalani received two threatening phone calls and was provided an armed security guard by the Bombay police. The BJYM held a morcha at Worli in Bombay, outside the office of Doordarshan. The Shiv Sena threatened to hold processions to protest the airing of the series. The general secretary of the BJP, Krishan Lal Sharma, said that Tamas was a “perverse piece and a distortion of history”. The Delhi police lathi-charged a group of protestors who turned violent outside the Doorshan office. The police opened fire at a protest in Hyderabad.

In the meantime, tensions simmered at the Bombay High Court when Justice Pratap, whose order had been appealed against, requested the chief justice to assign the Tamas case to some other judge, when the case came up before him for further directions on Jan. 28. Pratap felt that Nihalani had abused the process of the court by filing an appeal against his interim order on the same day. He too would have been willing to watch the film on Jan. 22 if the parties had asked him to, he said. “What was the grave urgency to act in this manner?” he asked in his order, adding, “Were [the] heavens going to fall in the meanwhile?” In turn, Justice Lentin remarked that they had to see the show because of the urgency of the case since Justice Pratap was unable to see it on Friday. “We had no pleasure to waste a Friday (Jan. 22) to see ‘Tamas’”, he said, adding that they had better things to do than “breaking [their] backs and ruining [their] eyes” by watching the series. Each show was between 50-55 minutes in length. “It was sheer hell”, Justice Lentin said. Senior lawyers at the Bombay High Court were divided over the question of whether the appellate court ought to have intervened when Justice Pratap was already seized of the matter.

However, while this tussle was taking place at the Bombay High Court, the matter reached the Supreme Court. The court held that the test to be applied in such cases was not whether a fanatic would be unhappy after watching the show. The series had to be “judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.” The test in free speech cases, said the court, must be formulated in such a manner that “we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.”

The court relied on the judgment delivered by the Bombay High Court, as the High Court’s judges had actually seen the show. Though Justices Lentin and Manohar were “two experienced Judges of one of the premier High Courts of this country”, and though average Indians may not have been “as sober and experienced” as them, they had seen the film “from an average, healthy and commonsense point of view”, which was the correct yardstick to apply in such cases. Despite the fact that there were protests and scenes of violence occurring in the country, the Supreme Court found that there was no apprehension that Tamas would be “likely to affect public order” or incite the commission of an offence.

In the meantime, the sixth and final episode of Tamas aired on Feb. 13, 1988. Ironically, thousands of people thronged to buy the Tamas novel – far more than would have probably even heard about the book had the protests against the series not taken place. Interestingly, around a decade later, when Prime Minister Atal Bihari Vajpayee’s BJP-led coalition government came to power at the center, it picked Nihalani’s advocate, Soli Sorabjee, to be its Attorney General.

Abhinav Chandrachud is an advocate at the Bombay High Court. He writes a Marathi column on similar themes in the Loksatta.

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