In anticipation of legal proceedings following the findings of the Hema committee

The recent order by the Kerala High Court to submit the full report of the Hema Commission has once again exposed the Kerala government’s inaction in addressing the serious issues of sexual harassment and gender inequality in the Malayalam film industry. The Hema Commission was set up in 2017 and was tasked with looking into these issues following the shocking abduction and assault of a prominent actress. However, nearly five years later, the government has failed to make the report public or take meaningful action on its findings, raising serious concerns about its commitment to justice and women’s safety. The Hema Commission report is said to contain damning revelations, including reports of widespread sexual exploitation, including of minors, and even a drug mafia operating within the industry. Despite the gravity of these findings, the Kerala government has shown inexplicable reluctance.

Deliberate slowness? The role of government examined

The Kerala government’s handling of the Hema Commission report has always been questionable. The commission was set up in response to immense social and political pressure and was tasked with investigating the conditions within the Malayalam film industry, with a particular focus on the harassment faced by women. The findings were horrific, revealing not only widespread cases of sexual harassment but also the presence of a ‘Power Group’ controlling the industry, including the distribution of illegal drugs.

But instead of acting swiftly on these findings, particularly on the information about the statement about the sexual exploitation of a 17-year-old girl and the drug mafia, the government chose to ignore the report, refusing to release it in full or take decisive action. This inaction by the left-wing government can only be interpreted in two ways: either the government is reluctant to confront the powerful figures named in the report, or it is simply indifferent to the plight of the victims and the broader issue of gender justice. Both possibilities are deeply troubling and point to a broader malaise within the political establishment.

Failure to effectively address the report’s findings has left victims and the general public disillusioned, further undermining confidence in the government’s ability to deliver justice. Furthermore, this delay has allowed those named in the report to continue their activities unchecked, perpetuating a culture of impunity that is all too common in cases involving powerful individuals.

The Legal Way Forward: Opportunities and Challenges

The recent order by the High Court to submit the full report could open the door to legal action against those named in the Hema Commission report, if any. Once the report is fully in the public domain, it is imperative that the legal community, civil society and the victims themselves push for accountability. The report will inevitably have a much more effective impact.

When the court receives a report on such a sensitive issue, it has several possible courses of action, which fall under the ‘suo motu’ jurisdiction of the court. Firstly, the court can take cognizance of the report and immediately direct the state government to take appropriate action. This direct intervention ensures that the state is held accountable for addressing the problem promptly and effectively. Alternatively, the court can direct the police to file a First Information Report (FIR) based on the findings in the report. This legal action would formally initiate an investigation, leading to the possible prosecution of those involved.

Most significantly, the court can recommend the formation of a judicial commission to thoroughly investigate the case. This is the most effective approach, as it ensures that the investigation is conducted with the utmost confidentiality, accountability and transparency. A judicial commission can independently assess the situation, protect the identities of those involved and provide a comprehensive report on its findings, providing a clear path to justice in place of a commission.

In cases where survivors or witnesses of exploitation are willing to give evidence against the exploiters, as required by law, the court can ensure their protection by ordering closed proceedings. According to the Supreme Court ruling, these proceedings will be held in private, protecting the identity of the survivors from disclosure. This approach not only protects the victims from potential retaliation, but also encourages others to come forward, knowing that their privacy will be respected. This process maintains the dignity and safety of the survivors and ensures that justice is done without compromising their anonymity.

It is unlikely that the full report will be made public because of the potential legal and personal implications for those involved. The individuals named in the report may be influential and well-known, and if their names were made public, they could bring criminal defamation proceedings against the survivors who have given statements. These survivors may have given their testimony under the condition of confidentiality, without intending for their words to be made public.

The risk of such legal backlash adds a layer of complexity to the situation, making disclosure a potentially problematic issue. If the court recognizes this, it will be more likely to opt for the appointment of a judicial commission, a more effective and secure method of addressing exploitation. This commission can legally register exploitation claims while ensuring the privacy and protection of survivors. By doing so, the court can uphold the integrity of the judicial process, defend the rights of survivors, and still work to deliver justice without jeopardizing anyone’s safety or reputation.

In light of precedents set by various court-appointed judicial commissions, the court is well-placed to consider the recommendation to constitute a commission to address the current issues raised in the commission report. In particular, the , following the Delhi gang rape itself, reflected the proactive role of the court in addressing such issues. The commission further demonstrates the commitment of the judiciary to address these critical concerns. The , charged with investigating sexual harassment against women, laid down crucial norms and guidelines to ensure the safety and security of the women. The recommendations significantly shaped the policy and reinforced the commitment of the judiciary to ensure safer and more responsible working environments for women.

These precedents, along with many others including commissions set up for the Bhopal tragedy, the Delhi and Godra riots, the Babri Mosque issue and many other policy imperatives, show that there is no legal impediment to appointing a commission to ensure transparency and accountability in the handling of sexual abuse cases. This underscores that such a move is in line with established legal practices for handling sensitive cases.

However, legal proceedings are not without their challenges. The slow pace of the Indian justice system, combined with the potential for witness intimidation and evidence manipulation, pose significant obstacles. The actor’s own sexual assault case, which has dragged on for more than six years, is a glaring example of how justice can be delayed to the point of being denied.

What now?

The Kerala High Court’s order to release the entire Hema Commission report can be seen as a call to action. The court could continue to maintain strict oversight to ensure that the report is not just another document gathering dust in government archives. Swift and transparent legal action should follow the release of the report, with the courts holding the government accountable for any further delays or attempts to shield powerful individuals from scrutiny.

It is clear that public pressure has already played a significant role in bringing the Hema Commission and its report to the attention of the public. It ensures that continued activism will be essential to ensure that the report’s findings lead to tangible change. Media attention, public debate and continued advocacy can help keep the issue in the spotlight and prevent it from being buried by political maneuvering.

Despite all the criticism of the Left government’s inaction, the Hema Commission report is a litmus test of the Kerala government’s commitment to gender justice and the rule of law. The prolonged inaction on the report’s findings, coupled with the continued delays in the actor’s sexual assault case, paints a bleak picture of a state apparatus more concerned with protecting its own interests than delivering justice. The recent Supreme Court verdict is a step in the right direction, but it is just the beginning. The real test will be whether the government, the judiciary and society at large can come together to ensure that the report’s findings are implemented vigorously and those responsible for the atrocities it details are held accountable. Anything less would be a betrayal of the victims and a failure of the justice system itself.

Nabeel Kolothumthodi is the Parliamentary Secretary to a Lok Sabha MP and an alumnus of the Law Faculty of Delhi University. The views expressed here are the author’s own.