While sexual assaults in West Bengal and Maharashtra are making news, the disclosure of the Hema committee report, which was submitted to the Kerala state government way back in 2019 with investigations and recommendations for women working in the Kerala film industry facing sexual harassment and poor working conditions, has recently been made public, whipping up a storm.
The certified copy of the Hema committee report compiled under the chairmanship of a former judge, justice K Hema, constituted in 2017 and submitted in 2019, was time and again rejected under the RTI Act, despite multiple RTI applications to the department of cultural affairs, Kerala. Various points of Section 8 of the RTI Act were reasoned for not providing the information. In fact, an order by a state information commissioner (SIC) in 2020, rejected the second appeal for a copy of the report.
However, one of the earlier RTI applicants, a journalist, once again filed a RTI application on 13 February 2024, seeking access to the permissible parts of the justice Hema committee report, by excluding those which cannot be disclosed under the provisions of the RTI Act.
Last fortnight, SIC, A Abdul Hakeem directed the secretary and the public information officer (PIO), department of cultural affairs, to provide the copy with specific instructions “to sever information that is exempt from disclosure’’ under the exemption clauses under Section 8 of the RTI Act. The following are the points of his order:
* The PIO is directed to provide all the information and attested copies of all relevant pages from the justice K Hema committee report, except which is exempt from disclosure under the RTI Act.
* To make operational the above-mentioned orders, the PIO is directed to personally scrutinise the justice K Hema committee report to identify and sever information that is exempt from disclosure.
* The PIO should issue notice to the appellants informing that only parts of the requested records, after severance of exempt information, are being provided. The notice should also specify which portions are not being provided.
* Since most of the appellants are journalists, the SPIO should ensure that the copies of the justice K Hema committee report are disseminated simultaneously to all the appellants before 25 July 2024.
* While providing the attested copies of the justice K Hema committee report, the SPIO should ensure that the materials do not lead to the identification of individuals referenced in the said report or compromise their privacy.
* Even though the SPIO can reasonably sever and disseminate the information due to larger public interest, the following portions from the justice K Hema committee report are exempt from disclosure: para 96 (page 49) para 165 to 196 (page 21 to 100) and the appendix.
* After implementing the above orders, the respondents are directed to file a compliance report. The state public information officer and the first appellate authority are directed to remain personally present before this commission, if there is any lapse in compliance of the above orders.
* The secretary to government (cultural affairs) is directed to ensure time-bound implementation of the above orders without any lapses or loopholes.
* Grievances, if any, arising from the implementation of the above orders by any of the parties involved in this case may be brought before this commission which remains available to adjudicate such matters in accordance with the provisions of the RTI Act.
The challenge in this writ petition is against Ext.P3 order of the state information commission, directing the state public information officer (SPIO) to provide the information and attested copies of all relevant pages of the justice K Hema committee report, except the portions exempted from disclosure under Right to Information Act 2005.
A safe environment for women employed in the Malayalam film industry. Acting on the request, the government constituted a three-member expert committee headed by justice K Hema (retd.) to study and make recommendations for solving the issues arising out of gender discrimination in Malayalam cinema. The terms of reference in the relevant government order (G.O. No. 16/2017 CAD dated 1 July 2017) reads as follows:
a. Issues faced by women in cinema (like security, etc.) and solutions to the problems.
b. Service conditions and remuneration for women in cinema.
c. Measures to enhance participation of women in all fields connected to cinema.
d. How to bring more women into the technical side of cinema, by giving concessions including scholarships, etc.
e. How to help women into the technical side of cinema when they have to remain out of work due to delivery, child care or other health issues.
f. How to ensure gender equality in the content of cinema.
g. How to encourage cinemas in which 30% of women are engaged in production activities.
On 11 January 2020, an application under Section 6(1) of the RTI Act was submitted for obtaining a copy of the report. The SPIO rejected the application and the rejection was affirmed in appeal vide ext.P2 order of the SIC. The SPIO having denied the information, an appeal was filed before the state information commission. The appeal was considered along with similar appeals and allowed as per 2. For the purpose, SPIO shall be instrumental as per Section 10(1) and Section 10(2)-(a) and (b) of the RTI Act.
The application seeking a copy of the justice Hema committee report was earlier dismissed by ext.P2 order. Therefore, the state information commission committed gross illegality by allowing a second application submitted for that purpose. Efflux of time or change in the individual manning the office of the chief information commissioner are not reasons to pass a different order. (ii) Issuance of copy of the report even after redacting some portion will make it possible to identify the persons who had given the statement and persons against whom allegations are made, thereby breaching their privacy. In fact, justice K Hema (retd.) had alerted the government about the need to keep the report confidential, since it contains details of sexual assault, harassment and abuse which were disclosed to the committee in privacy in in-camera proceedings.
(iii) As issuance of copies of the report would result in disclosure of information with respect to third parties, the procedure prescribed in Section 11 of the RTI Act was bound to be followed. The apex court, in central public information officer, Supreme Court of India vs Subhash Chandra Agarwal [(2020) 5 SCC 481] has held the procedure stipulated in Section 11 to be mandatory when third-party interest is involved. (iv) In the impugned order, the state information commission has only dealt with the exemption under Section 8(j), in spite of the report being exempted as per Sections 8(1) (e), (g) and (h) as well. Even if Section 8 (1)(j) alone is taken into consideration, ext.P3 is bad, since the provision prohibits disclosure of personal information. This crucial change brought about to Section 8 (1)(j) by virtue of Section 44(3) of the Digital Personal Data Protection Act, 2023 was omitted to be noticed.
(v) In the light of the categoric finding in ext.P2 that the report of the committee cannot be bifurcated as contemplated under Section 10 of the RTI Act, the state information commission went wrong in entering a contrary finding in ext.P3, that too, without assigning any cogent reasons.
(vi) The 5th respondent is a journalist and his only interest is to capitalise on the report by making up sleazy stories about the persons and the instances mentioned in the report. As such, no public interest is being subserved by issuing copies of the report. On the other hand, the result of unwarranted media coverage of the report would be irreparable damage to individuals and the industry as a whole.
(vii) Based on the recommendations in the report, the government has already constituted a committee. The applicants, who had never appeared before the committee, are more interested in accessing the report rather than taking measures to expedite the implementation of the committee’s recommendations.
(6) The learned counsel appearing for the state information commission commenced his counter argument by challenging the locus standi of the petitioner to challenge ext. P3 order. It is contended that the petitioner is not personally affected by the impugned order, nor are any of his fundamental rights directly or substantially invaded. In support of the contention, reliance is placed on the division bench decision of this court in Ferosh M. Basheer (Dr) vs University of Kerala, Tvm. [ILR 2022 (4) Kerala 819]. According to the counsel, the very objective of the RTI Act, which is to ensure participatory democracy, will be defeated, if such frivolous challenges are entertained.
The learned counsel appearing for the 5th respondent pointed out that the RTI Act is intended to give effect to the right to know, which is an integral component of the right to freedom of speech and expression guaranteed in Article 19(1) (a) of the Constitution of India. This invaluable right cannot be circumscribed by raising technical objections, that too by a person who is not in any way affected by the impugned order. 10. Learned Counsel appearing for the members of the Women’s Commission as also the members of the Women in Cinema Collective supported ext.P3 and submitted that the government of Kerala is the first in the country to initiate measures for protecting the interest of women employed in the film industry. Not only the recommendations of the justice Hema committee, but also the reasons which prompted the committee to make the recommendations should be discussed in public domain prompting the government to act and thereby reducing the misogynistic tendencies in Malayalam cinema. This would ensure the right to work as well as the right at work for women. On the other hand, the writ petitioner’s attempt is to keep the unhealthy practices in the film industry under wraps. Therefore, the writ petition is only to be dismissed.
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Issues faced by women in cinema (like security, etc) and solutions to the problems; service conditions and remuneration for women workers in cinema; measures to enhance participation of women in all fields connected to cinema; how to bring more women into the technical side of cinema, by giving concessions including scholarships, etc; how to help women in cinema when they have to remain out of work due to delivery, child care or other health issues; how to ensure gender equality in the content of cinema; how to encourage cinemas in which women are engaged in production activities.
Abdul Hakeem also observed in his order that the burial of the Hema committee report by officials of the department of cultural affairs is an example of how some bureaucrats misrepresent ideas put forward by the government in good interest. “This report comprises findings that are intended to course-correct and address the problems faced by women associated with a grand enterprise like cinema, which has the power to influence society. It is not good for officials to conceal the contents of such a crucial report,” he mentioned.
The department of cultural affairs was also pulled up for being “prejudiced and withholding information without carefully examining the intention of the petitioners.” Mr Hakeem further criticised the withholding of the report for so long, citing that it undermines the purpose of forming the Hema committee itself, the first of its kind in the country established by a state government to probe the issues faced by those working in the film industry.
It was in 2017 that the then-newly formed Women In Cinema Collective (WCC) met with chief minister Pinarayi Vijayan, demanding a probe into the problems faced by women in Malayalam cinema, in the aftermath of a sexual assault on a woman actor in Kochi, allegedly masterminded by actor Dileep. Headed by former justice K Hema as chairperson and comprising yesteryear actor Sharada and former bureaucrat KB Valsalakumari as members, the committee was formed on 16 November 2017.
(Vinita Deshmukh is consulting editor of Moneylife. She is also the convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005 and the Chameli Devi Jain Award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book "To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte" with Vinita Kamte and is the author of "The Mighty Fall".)
