With the Kerala High Court admitting a writ petition seeking a directive for the Director General of Police to initiate criminal proceedings based on the Justice Hema Committee Report, the state government's claim of having "taken all possible action" faces a significant setback. The court directed the Pinarayi Vijayan government to submit the entire Justice Hema Committee Report, including the redacted portions, in a sealed cover. The Court questioned what actions could be taken based on the report and emphasized that the report would be meaningless if no action followed.
Although released in a redacted form to protect respondents' privacy, the Hema Committee's report revealed alarming details about the prevalence of sexual harassment, exploitation, and the casting couch culture in the Malayalam film industry. The report highlighted that Malayalam cinema is largely controlled by an all-male "power group" with significant influence over casting and production decisions, leaving most women in the industry fearful of retaliation or blacklisting if they speak out.
The petitioner argued that the state government has a responsibility to prosecute individuals who committed cognizable offenses based on the testimonies in the Hema Committee Report. Meanwhile, the government’s counsel argued that they lacked details of witnesses or victims because the report was made confidential by the State Information Commission. This is similar to the blame-shifting the government has engaged in since the report's release. In his first press conference after the report's release, Chief Minister Pinarayi Vijayan placed the responsibility on a letter from Justice Hema in February 2020 and an order by the State Information Commission chairman in October 2020, as the reason for keeping the report untouched and shelved for more than four years.
"Justice Hema has repeatedly insisted in her letter that the committee's report should not be released under any circumstances, as the testimonies provided by women in the cinema sector are highly confidential," the Chief Minister explained a day after the report's release. Interestingly, the CM highlighted this excerpt from the letter: “We have been following the principles laid down by the Supreme Court in various decisions, in keeping the matter extra confidential. It would also take the liberty to alert you to follow these principles, before parting with the report to anybody in a routine manner.’’ This clearly shows that Justice Hema was stressing the importance of protecting respondents' privacy according to Supreme Court guidelines, not that the report should never be released.
Regarding the Kerala Police's inaction on the report, the CM gave a peculiar response, stating that the police received a document from the Culture department emphasizing the need for confidentiality. He also added that Justice Hema did not recommend filing a case or conducting an investigation based on the report. "Moreover, there is a need to protect the privacy of those who testified. However, there hasn’t been a single instance, including the 2017 actor abduction case, where legal action has been spared," the CM said in defence of his ministry.
Notably, the CM made the odd argument that the government would take legal action if any actor comes forward with a complaint and listed several instances where the police acted upon receiving formal complaints. However, legal experts point out that the police do not need to wait for a formal complaint to register an FIR if they become aware of a cognizable offense. In fact, the Supreme Court, in Lalita Kumari v. Government of Uttar Pradesh (2014), observed that the police are duty-bound to register an FIR if they receive information disclosing the commission of a cognizable offense, regardless of the source.
Despite the government's rhetoric about its "commitment" to protecting women in cinema, the weakness of its stance is clear. Paragraph 53 of the Hema Committee Report lists 17 types of issues that women in cinema commonly face, many of which constitute cognizable offenses.
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T. Asaf Ali, former Director General of Prosecution of the state, told THE WEEK that the government committed “criminal negligence and an unpardonable sin” by remaining mum and failing to act on the report submitted in 2019. He emphasized that, for the purpose of initiating a criminal investigation, mere information is sufficient. According to Section 176 of the Bharatiya Nagarik Suraksha Sanhita 2023 ( or CrPC Section 157), when a police officer suspects an offense has been committed he has to set the law in motion for investigation..
"Imagine the police receive an anonymous call about a large-scale gang riot in a village. When they arrive, they find the report is true, but no one comes forward to lodge a complaint, either orally or in writing. Can the police simply say, 'Since there is no complaint, we cannot proceed'? In such a situation, the police are required to file a suo moto FIR," Ali explained.
Notably, the opposition leader criticized the government for not filing a single FIR based on the Hema Committee report. "The government had all the testimonies and evidence in hand, yet took no action," he said. "The Chief Minister, who also holds the home ministry portfolio, should read Section 199 of the Bharatiya Nyaya Samhita. If such [cognizable] incidents are not investigated and action isn't taken, it constitutes a criminal offense. The government has been protecting perpetrators of crime for four and a half years."
Interestingly, state finance minister K.N. Balagopal’s statement today that a case could be registered for cognizable offenses even without a complaint was interpreted by the opposition as support for their stance. The Leader of Opposition emphasized that this issue is not political for them, though it is evident that the controversial report is becoming a significant political flashpoint.
