'Why Govt Was Inactive For 4 Years?' :
Kerala High Court Directs State To Hand Over Unredacted Hema Committee Report To SIT
Tellmy Jolly & Manju Elsa Isac
10 Sept 2024 11:50 AM
The Kerala High Court today directed the State government to hand over the unredacted version of Justice Hema Committee Report, which disclosed large scale sexual harassment in the Malayalam film industry, to the Special Investigating Team (SIT) to probe offences disclosed in the Report.
The report, handed over to the State back in 2019, also revealed other issues faced by women in cinema, like gender discrimination, lack of safety in the workplace, insufficient basic facilities, wage disparities etc. The DGP was given a copy of the report in February 2021.
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Thus, the Court expressed strong displeasure over the State's inaction in the matter for 4 long years. It orally observed,
“Why is the State Government inactive or silent from 31.12.2019 to now…When the state government has received a report based on an enquiry or committee set up by its own for gathering information...when the state government is apprised of a malady in society and commission of several offences, what is the bare minimum that the state government has to do? We are curious, rather, we are surprised or taken aback by the inaction on the part of the statement government.
In our view, the bare minimum expected of the state government when it received the report or at least when the DGP was given a copy in 2021, we are in 2024. And the state government has done nothing…One thing is assuring confidentiality of women who may have given the statements, we understand that. You may also have to assure confidentiality with regard to so called persons who have been named in the statements having committed the offence. They do have the right to privacy and reputation but despite all this when the state government is confronted or told that practices which are derogatory to women exist in the society, what is the bare minimum that you should do?”
It added, "Why do you say registration of crime is not done when several offences are narrated in the report. Prima facie offences under IPC and POCSO Act are made out. Why no action?...We understand privacy and confidentiality. You can take necessary action. Report prima facie shows many offences, not just sexual offences but about remuneration etc. You can take action and if the victim does not want to prosecute then that is alright. But why cannot an investigation be started?"
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The Court has now asked the SIT to submit an action taken report on the next date, whereafter it will open the sealed cover containing the unredacted version of the report and decide whether SIT's action/ inaction is justified.
The matter was heard by the Special Bench of Justice A. K. Jayasankaran Nambiar and Justice C. S. Sudha, constituted to hear matters connected with the report of Justice Hema Committee, which was constituted by the Government in 2017. The report was published on August 19, 2024.
The Court has also orally cautioned against media trial, adding that it is not issuing any formal gag order. It said the media will act responsibly and it should not put any pressure on the SIT to act in haste, as it might trample the investigation and affect the rights of the people involved. Further, the Court said that there should be restraint and caution from the side of the officers so that the privacy of both parties- accused and victims are protected.
The Court said, "We are also hopeful that since this Court is now in seizin of this matter, and will be monitoring the progress of the investigation by the SIT, the print, electronic and social media will ensure that undue pressure is not applied on the Investigating Team through posts or news articles which may have the effect of pressurising the investigating agencies to act in a hasty manner. Since we are hopeful that the print, electronic and social media will show due respect to the rights of the individuals in the Society in a sensitive matter such as the present, we do not feel any need to pass a formal order restraining the media in this regard."
The Court added that the State is not prevented from taking action on the report just because the SIT is looking into the offences. "SIT can look into criminal offences referred to in the report. But there are other issues also like labour issues, economic issues faced by women which must be looked into by the Govt. Such issues have to be dealt with by the government," it orally remarked.
The Court also pointed towards the "peculiar demographics" of Kerala where the population of women is higher than men, adding that the issue is one "affecting the majority in our state.”
The Court stated that the SIT will go through the Report and see whether an offence, cognizable or otherwise has been made out and proceed to take action as per law. It directed the SIT to submit an action taken report before the Government, who in turn will submit it before the Court along with their affidavit.
The matter will now be heard on October 03.
Case Number: WP(C) 29846/ 2024 and other matters
Case Name: Navas A @ Paichira Navas v State of Kerala and other matters
Kerala HC Directs State To Place Entire Justice Hema Committee Report Before It In Sealed Cover, Suo Moto Impleads Women's Commission
Tell My Jolly
22 Aug 2024 12:59 PM
The Kerala High Court has directed the State Government to make available the entire Justice Hema Committee Report, including the redacted portions before the Court in a sealed cover. The Court also suo moto impleaded the Kerala State Women's Commission.
The Court passed the above order while considering a Public Interest Litigation seeking to initiate criminal proceedings against offenders who committed sexual crimes against women in the Malayalam film industry. The Justice Hema Committee was constituted by the Government in 2017 and was tasked to study issues faced by women in the Malayalam film industry. The report was published on August 19, 2024.
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The Division Bench comprising Acting Chief Justice A.Muhamed Mustaque and Justice S Manu ordered thus:
"If any cognizable offence is disclosed in the committee, whether a criminal action is necessary or not is to be decided by this court. The Government is as of now unable to proceed in this matter for the simple reason that no one has come forward with a complaint. But the fact remains that the report discloses sexual exploitation and harassment of women. how to protect these vulnerable women and what action can be taken against the perpetrators of the crime is something that the Court needs to address. Accordingly, we admit this writ petition and await the government's stand on this. We also implemented Kerala State Women's Commission suo moto in this matter. we also direct the government to make available the entire committee report in a sealed cover before this Court, only one copy."
The Counsel for the petitioner submitted before the Court State has a responsibility to prosecute individuals who committed cognizable offences against women in the film industry based on the information disclosed in the Justice Hema Committee Report.
The Counsel appearing on behalf of the State Government submitted that even the Government does not have details of witnesses or victims since the report was made confidential by the State Information Commission. It was submitted that the Justice Hema Committee was constituted to study the issues faced by women in the film industry and was taken to suggest measures, unlike a judicial commission.
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It was stated that parties disclosed details before the Committee based on the promise of confidentiality. It was stated that individuals with grievances could approach the Police or authorities with complaints for action to be taken.
The Court noted that the Justice Hema Committee Report indicates instances of sexual harassment and exploitation against women in the Malayalam film industry and some action has to be taken in this.
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The Court noted that the issue is that parties want to maintain anonymity and they are a vulnerable section of women who do not wish to disclose about the harassment in public. The Court noted that this issue has to be addressed and actions need to be taken to protect these vulnerable women.
The Court orally enquired as to what action could be taken based on the Committee's report. It also noted that the entire exercise will become futile if no action is taken based on the Report. It orally said, “But can we ignore this issue now that is the problem for all of us. In what manner can we approach this issue?”
The matter is posted to September 10 for further hearing.
The plea has been moved by Advocates Sekhar G Thampi, Akhil Sussendran, Abhishek Nair M R
Case Number: WP(C) 29846/ 2024
Justice Hema Committee Proposes Special Law & Tribunal To "Liberate Women From Evils Of Malayalam Film Industry"
Tellmy Jolly
19 Aug 2024 6:54 PM
After much speculation, the Justice Hema Committee report was made public today. The Committee was constituted in 2017 by the Kerala Government to study and report on the issues faced by women working in the Malayalam film industry and to suggest solutions.
The Justice Hema Committee suggested that issues faced by women in the film industry could only be resolved by the enactment of a new statute and by the constitution of an independent Tribunal to address their grievances.
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“We have absolutely no hesitation to state that there must be an independent forum which must be constituted by the government, as per a statute, to deal with the problems of women in cinema. Then and then alone the women can be liberated from the evils of Malayalam film industry”, stated the report.
The Committee's study revealed that women in the film industry face numerous issues, including, sexual demands, sexual harassment, abuse and assault in workplace. They also face problems of transportation and accommodation. It also stated that women lack basic facilities like toilets and changing rooms in film sets, leading to human rights violations. Additionally, the report highlighted the issues of lack of safety and security for women, gender discrimination, male domination. The report further stated that women faced gross disorderly conduct from others who are under the influence of alcohol and drugs , vulgar comments, cyber harassment, payment disparity etc. The Committee emphasised that women were unaware of their rights and that there is an absence of a legally constituted authority to redress their grievances.
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No Purpose In Constituting Internal Complaints Committee
The Committee suggested that the problems faced by women cannot be resolved by forming an Internal Complaints Committee (ICC) in the film industry. The recommendation for constitution of ICC was made based on the Apex Court decision in Vishaka v State of Rajasthan (1997) and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. However, the Committee felt that ICC could not address the problems faced by women in cinema since individuals working in cinema will only be the president and members of the ICC. It also stated that women will be scared to divulge details of harassment before the ICC if its members are from the film industry itself.
The report said, “we are fully satisfied of the fact that as long as the power structure exists in the Malayalam film industry, they will take full control of it and account constitution of ICC comprising of persons in cinema will be of no use at all to protect any woman in Malayalam film industry from sexual harassment/assault/abuse in cinema.”
Kerala Cine Employers and Employees (Regulation ) Act 2020
The report suggested that the existing statutes such as the Cinematograph Act, Cinemas (Regulation) Act (Kerala), Cine Workers and Cinema Theatre Workers (Regulation), Cine Workers Welfare Cess Act and Cine Workers Welfare Fund Act were insufficient to deal with the challenges faced by women in present times. It also stated that the problems faced by women in cinema cannot be adequately dealt with under the provisions of the IPC and POSH Act.
The Committee thus suggested that enacting a separate Act can only address the specific issues women face in the film industry. It proposed enacting the Kerala Cine Employers and Employees (Regulation) Act and establishing a Tribunal under this statute.
The Report suggested that a District Retired Judge must head the Tribunal and a revision against the Tribunal's order could be preferred before the High Court. It suggested that proceedings before the Tribunal must be confidential and will be held in camera. Further, the report stated that the statute must also lay down illegal acts prohibited under the statute and provide penalties.
Other Suggestions
The report concludes by giving other suggestions to redress the issues faced by women in cinema.
Having a written contract stipulating terms and conditions of services and remuneration would resolve many difficulties.
Mandatory, basic online training in gender awareness to prevent exploitation against women and to ensure respect and dignity for all.
Alcohol and drugs must be banned from workplaces in cinemas.
The huge gap in remuneration based on gender must be reduced and minimum remuneration must be fixed for junior artists.
Ensure proper accommodation for women.
Mandatory background checks for staff.
Ensure that a police complaint is filed if any criminal offence is committed.
Enact a comprehensive film policy focussing on gender equality.
Film studies could be introduced as an optional course in government colleges in every district and women who pursue such courses could be offered fee concessions, scholarships etc.
A digital platform for girl technicians must be formed in all colleges where they could share ideas and support each other.
The report further suggested creation of a welfare fund for women who have to stay away from their jobs due to delivery or physical disability. Further, it was suggested that film scenes must not glorify gender injustice or violence against women.
Background
The Justice Hema Committee Report was submitted before the Chief Minister in 2019 and the decision to make the report public was taken on July 5, 2024. Initially, a stay was granted by the Kerala High Court against the publication of the report in a writ petition filed by film producer Sajimon Parayil. However, the single bench dismissed the writ petition and ordered that the report could be made public.
A writ appeal was preferred against the order of the single judge by film actress, Renjini, despite not being a party in the writ petition. Her writ appeal was dismissed today by the High Court and she was granted liberty to file a fresh writ petition.
DR. A.K.JAYASANKARAN NAMBIAR, J. & C.S. SUDHA, J. ------------------------------- W.P.(C).NOS.29846, 31639, 31205 & 31332 OF 2024 & W.A.NO.1248 OF 2024 ----------------------------------- Dated this the 10th day of September, 2024 O R D E R Dr. A.K. Jayasankaran Nambiar, J. All these matters were posted before us today. At the outset, the learned Advocate General informed us that the full text of the Justice Hema Committee Report was available with him for handing over in a sealed cover as directed in the order dated 22.08.2024 of this Court. However, we requested the Advocate General to keep the sealed cover in safe custody in his office till we require the same for perusal at a later stage. We then took note of the submission of the learned Advocate General that a Special Investigation Team [SIT] had been constituted by the Director General of Police cum State Police Chief vide order dated 25.08.2024 in the wake of complaints that were received by the Police Department on issues related to the Justice Hema Committee Report. The SIT constituted comprises of the following persons: 1. Sri. Sparjankumar IPS, IG & Commissioner of Police, Tvpm City. 2. Smt. Ajeetha Begum IPS – DIG, Tvpm Range 3. Smt. Poonkuzhali IPS – AIG, Coastal Security. 4. Smt. Aishwarya Dongre IPS – Asst. Director, KEPA W.P.(C).No.29846, 31639, 31205 & 31332/24 & :: 2 :: W.A.NO.1248/24 5. Smt. Merin Joseph IPS – Supdt. of Police (HQ), Crime Branch. 6. Sri. Ajith V. IPS – AIG to ADGP (L&O). 7. Sri. Madhusoodhanan IPS – SP, Crime Branch, Tvpm. and is to be supervised by Sri. H. Venkatesh IPS, Addl. Director General of Police, Crime Branch. 2. It is also seen that Sri. Sparjankumar IPS, IG & Commissioner of Police, Thiruvananthapuram City will head the SIT and Sri. Madhusoodhanan IPS, SP, Crime Branch, Thiruvananthapuram is designated as the Investigation Officer [IO]. 3. Finding, however, that the constitution of the SIT aforementioned was only for the purposes of investigating into the complaints received in the recent past, after the publication of the Justice Hema Committee Report in its redacted form, we enquired with the learned Advocate General as to what action the State had taken pursuant to the receipt of the report from the Justice Hema Committee as early as on 31.12.2019. The learned Advocate General then submitted that other than entrusting a copy of the report to the Director General of Police in February, 2021, no further action was taken by the State Government. We are also informed that even the Director General of Police, to whom the report was handed over, did not take any further action on the report till the constitution of the SIT vide order dated 25.08.2024. W.P.(C).No.29846, 31639, 31205 & 31332/24 & :: 3 :: W.A.NO.1248/24 4. We must observe that we are rather perplexed by the inaction of the State Government. In a State where the population of the female has always exceeded that of the male, and the birth population ratio of females has always been higher than the national average, the interests of women cannot be treated as a minority interest, or their rights equated to minority rights. As per a study conducted by the State Government itself in 2013, the literacy rate among females in our state has always been very high, at above 91%, and it is only marginally below the male literacy rate that stands at around 96%. The life expectancy for women in our State is in the region of 76.30 as against 71.40 for men. Therefore, the State has to see the problems faced by women as problems affecting a majority of the literate people in the State. 5. In the instant case, the conduct of the State Executive has been alarmingly lethargic. Although the report of the Justice Hema Committee was submitted to the State Government as early as on 31.12.2019, there was no action taken thereon for well over four years, and even thereafter, it took a litigation to spur the State into action, and that too only in respect of one of the many issues that were flagged by the Justice Hema Committee. While it may be a fact that the Committee was only in the nature of a fact-finding body for the State Government, when we consider the public money spent for the W.P.(C).No.29846, 31639, 31205 & 31332/24 & :: 4 :: W.A.NO.1248/24 effective functioning of the committee, and the high profile nature of the Committee itself, headed as it was by a retired Judge of the High Court, we are of the view that the bare minimum that was expected of the Government was to take a prompt decision as whether or not it agreed with the findings of the Committee. Apparently, this was not done. 6. Silence and inaction not being options available to the State Government any more, we are of the definitive view that the State government must take immediate steps to address the various issues generally faced by women in our society, including those faced by women in connection with their respective vocations. While the Directive Principles of State Policy enumerated under Part-IV of the Constitution, especially Articles 38, 39 (a), (d), (e) & (f), 42, 43 & 46 that are relevant in the present context, make it obligatory on the State to apply the said principles in making laws, Article 51-A (e) of the Constitution makes it the duty of every citizen, inter alia, to renounce practices derogatory to the dignity of women. The State will do well to remind itself that the collective duties of the citizens in society translates into a duty of the State and hence it cannot afford to remain a mute spectator to the social and economic injustice that is meted out to women in general, who constitute a significant section of its citizenry. W.P.(C).No.29846, 31639, 31205 & 31332/24 & :: 5 :: W.A.NO.1248/24 7. Taking note of the present situation, therefore, we issue the following directions: (i) The State Government shall, forthwith, furnish a full copy of the Justice Hema Committee Report, together with all its annexures - documentary and otherwise - to the SIT constituted in terms of the order dated 25.08.2024. The SIT shall, on its part, go through the report in its entirety to see whether any offence, cognizable or otherwise, has been made out at the instance of any person and proceed to take suitable action in accordance with law by treating the contents of the report as “information” for the purposes of setting the law in motion. (ii) The SIT shall, in particular, be mindful of the sensitivities that are required to be observed during investigation, and shall take note of the legal provisions regarding the privacy rights of the victim as well as those against whom allegations/accusations have been levelled by the alleged victims of crimes. The preliminary enquiry and consequent action shall be done in a manner that is fair to all concerned. The SIT shall then forward a report, on the action taken by it, to the State Government within two weeks from today and upon receipt thereof, the State Government shall include a copy of the action taken report along with the counter affidavit filed to the averments in the various writ petitions and writ appeal referred above. W.P.(C).No.29846, 31639, 31205 & 31332/24 & :: 6 :: W.A.NO.1248/24 (iii) The members of the SIT shall refrain from giving press conferences or communicating with the media on any aspect of the investigation conducted in connection with the report of the Justice Hema Committee. We make it clear however that the restriction against giving press conferences shall not be seen as preventing the investigating team from giving such information, without mentioning the names of any person, as would indicate the progress that they have made in their investigation. (iv) This Court believes that the print, electronic and social media would exercise restraint and adhere to an appropriate code of conduct in the matter of publishing news governing any aspect of the Justice Hema Committee Report by according due respect to the privacy rights of persons who are allegedly victims of offences committed against them, as also of persons against whom such allegations/accusations have been made. They shall bear in mind that even an accused person has a fundamental right to a fair investigation and trial of the case against him/her and a trial by media would throw to the winds the guarantee of fundamental rights assured to the individual under our Constitution. The safeguard of the fundamental right to privacy under our Constitution is assured to the individual not only by the State but also at the instance of fellow citizens who are obligated under Part IV-A of our Constitution to abide by the Constitution and respect its ideals as also to promote harmony and the W.P.(C).No.29846, 31639, 31205 & 31332/24 & :: 7 :: W.A.NO.1248/24 spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women. (v) We are also hopeful that since this Court is now in seizin of this matter, and will be monitoring the progress of the investigation by the SIT, the print, electronic and social media will ensure that undue pressure is not applied on the Investigating Team through posts or news articles which may have the effect of pressurising the investigating agencies to act in a hasty manner. (vi) Since we are hopeful that the print, electronic and social media will show due respect to the rights of the individuals in the Society in a sensitive matter such as the present, we do not feel any need to pass a formal order restraining the media in this regard. Post on 03.10.2024. Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- C.S. SUDHA JUDGE prp/10/9/24
13.7%of the population is undernourished
35.5%of children under five are stunted
18.7%of children under five are wasted
2.9%of children die before their fifth birthday
