Kerala High Court criticizes state government over Hema Commission report

On Tuesday (September 10), the Kerala High Court heavily criticised the state government for failing to take prompt action against the sexual abuse exposed in the report of the Justice K Hema commission on working conditions of women in the Malayalam film industry.

The two judges criticised the Left Front government and stressed that they are concerned over the state’s inaction, including not registering FIRs after the commission first submitted its report in 2019. The court also reprimanded the state government, saying that they had done nothing in 4 years except attending to the report. While criticising the state government, the Supreme Court also orally observed that “silence is not an option”.

Notably, a special bench comprising Justices AK Jayasankaran Nambiar and CS Sudha is hearing several cases, including a petition under a Public Interest Litigation (PIL) seeking criminal action against the persons accused of sexual offences in the report.

The Special Bench has directed the Kerala government to hand over the unredacted version of the Justice Hema Committee Report to the Special Investigating Team (SIT). The Pinarayi Vijayan government has formed a seven-member SIT which is currently investigating sexual offences reported in the wake of the report’s release.

Key observations of the Kerala High Court

On Tuesday, September 10, the High Court noted that the Justice Hema Committee report was submitted to the state government way back in 2019 and criticized the state government for its inaction. The court said, “We are particularly concerned about the state’s inaction, including not registering FIRs… You have done nothing in 4 years except sitting on the report.”

The court stressed that ‘silence’ was not an option for the government.

The Court observed: “When the report revealed such a malady in the system, what is the bare minimum that the State Government should have done? We are baffled by the inaction of the State Government. It is one thing to ensure the confidentiality of the women who spoke to the Commission and even those who have been accused may have a right to privacy. But apart from this, when such issues are revealed in the report, should there not be some action from the government?… Why has the government done nothing so far?… It is mandatory for the State to act on this. Silence is not an option.”

The Supreme Court also stressed that “prejudice and discrimination” against women must change.

The Supreme Court questioned the Kerala government and said, “What are you doing to address the issues faced by women in the society? Not just the film industry. The situation is bad and that too in a state like ours. We have a larger population of women in our state. This is not a minority issue for us… The SIT should look into all this.”

The bank further asked the SIT to submit its status report by the next date, adding that it will then decide whether to open the sealed envelope containing the unredacted version of the report or not.

The court pointed out that the Hema Committee report also mentioned cases of exploitation even before the production of a film began, which does not fall under the purview of the Prevention of Sexual Harassment at Workplace (POSH) Act. Consequently, the court asked the Kerala government to formulate legislation to address these issues faced by women.

It added: “In such situations, it may not be possible to invoke the POSH Act. If issues are not addressed through existing laws, the government will have to come up with new laws.”

It also proposed arbitration and mediation procedures for non-criminal violations. The court noted: “Some cases can be brought under mediation. We are not talking about criminal violations. For example, problems faced by make-up artists, such as gender discrimination.”

The court asked the SIT not to reveal any important findings of the investigation in press conferences or to the media, which could lead to a “media trial”. However, the court refrained from imposing a gag order on the media. But it asked the media not to pressure the SIT to act hastily.

Justice Sudha said, “No press conferences by the SIT. No media trial in this case. We are not saying that the investigating officers cannot talk to the press, but they cannot divulge any details.”

Justice Nambiar observed: “We do not think there is any need to impose a gag order on the media. The media can be responsible. No gag order on the media now… It is not only courts that have to protect fundamental rights. The state also has a duty. Even the media has a duty to respect the right to privacy of individuals.”

Report of the Hema Justice Commission

The Kerala government formed the Justice Hema Committee in February 2017 after a gruesome case of sexual abuse of an actress came to light. It is notable that a prominent Malayalam actress was abducted, sexually assaulted and filmed in a moving car. The investigation revealed that actor Dileep had allegedly orchestrated the attack to “teach her a lesson”.

After much ado, the Hema Justice Commission was set up, which submitted its report to the Kerala government on December 31, 2019.

However, the report’s findings were made public on Monday (August 19, 2024), five years after it was submitted to the Kerala government, amid claims that it contained a lot of sensitive information that needed to be redacted before it was made public. They believed that publishing the full report would harm the industry.

The 63 pages that were redacted contained portions that could infringe on the privacy of the individuals named in them, as ordered by the State Information Commission (SIC). However, the state government is facing widespread allegations that it was trying to protect the accused and omitted more information than was recommended.

Now the court has come down heavily on the state government, highlighting the five-year delay and the lack of determination by the LDF government to take prompt action in the last five years.