SCOPE OF FILM CENSORSHIP IN INDIA AS A REASONABLE RESTRICTION ON FREEDOM OF SPEECH AND EXPRESSION

SCOPE OF FILM CENSORSHIP IN INDIA AS A REASONABLE RESTRICTION ON FREEDOM OF SPEECH AND EXPRESSION
Author: Vinayak Gupta, 
3rdYear Law Student,
 School of Law, Christ (Deemed to be University),
Bengaluru.

Abstract
The Constitution of India has gifted the people of India with various fundamental rights which include Right to freedom of speech and expression but these rights are not absolute and are restricted by provision under the Constitution and other statutes. The problem arises when the exercising of these rights is challenged based on its restrictions which remain quite vague even after many judicial pronouncements. Looking at the current scenario, the Indian filmmakers are the most affected by this problem as their  films or parts of their films are being, frequently, banned by CBFC, the film certification board of India on the basis of them being ‘too offensive for public’, ‘bad influence on the younger generation’ and many other reasons like violence, misogyny, obscene etc. This paper, in particular, talks about the scope of right of freedom of speech and expression of the filmmakers and attempts to bridge the gap between the right to freedom of speech and expression and its reasonable restrictions.
Introduction
The film censorship in India is one of the most stringent in the world.[1]This, in a country that claims to grant its citizens the fundamental right to “freedom of speech and expression,” subject only to “reasonable restrictions” in the interests, inter alia, of state security, public order, friendly relations with foreign states, and decency or morality.[2]
Nevertheless, it was only up until recently that commentators, both within and without the government[3], and the courts have begun to seriously question both the wisdom and the constitutionality of the prevailing scheme for film censorship in India. The potential changes in the substance and manner of film censorship that may occur as a result of this period of legal and extralegal testing, however, are significant for several reasons. First, in light of the vast size of the Indian motion picture industry on world-wide scale, it seems clear that any change in the latitude of expression now granted to film producers will have a liberalizing or alternatively, chilling effect on the tenor of freedom of speech and expression in the society as a whole. Indeed, such changes may assume extra-territorial importance and effect because of the increasing international influence of the Indian film industry. Secondly, the degree of public expression granted to the film industry and other mediums of communication will undoubtedly affect in vital way the future course of modernization and democracy in India.
In Indian society, the co
nstitutional limits of lawful speech and expression-delineated as they are in terms of non-obligatory[4]“reasonable restrictions”-provide but little guidance to those seeking a fair and proactive approach to the issue of civil liberties in a developing society. The burden of developing such an approach, therefore, must ultimately come to rest on the courts and enlightened governmental officials. In the area of film censorship, however, the process of weighing new alternatives for the old censorship system has just begun.
In this light, it will be the objective of this paper to consider and evaluate possible alternatives to and modifications of the present system of film censorship in India. This paper questions of the constitutionality of the laws relating to film censorship, in the light of the recent Indian Supreme Court decision in K.A. Abbas v. Union of India[5]and draw upon similar developments the film censorship law in the United States. Other than this, an attempt has been made to evaluate various other alternatives to film censorship been proposed in India or, alternatively, tried in other countries, the proposals of the 1968 Khosla Committee on Film Censorship American experience of self-censorship by the motion picture. Lastly, it seeks to assess the impact of and need for film in a developing country such as in India.
Cinematograph Act, 1952
     A.   Organisational Framework
The 1952 Act specifies that a Board of Film Censors shall be constituted by the central government composed of a salaried chairman and not more than nine other members appointed by the central government.[6]These latter members’ precise terms and conditions of service are not specified in the Act itself, but are to be provided by supplementary legislation instead.[7] To that end, the Act empowers the central government to enact rules outlining, inter alia, the exact number of board members, the process for screening and certifying films, the appointment of subordinate boards and officers, the conditions that may be imposed on a film certificate, and the manner in which the censor board’s decision is appealed.[8]
In compliance with these enabling laws, in 1958[9]the government issued a series of rules setting out in some detail the administrative structure and functioning of the boards of censorship of films in India.< a href="file:///C:/Users/LENOVO/Downloads/Research%20Paper%20(3).docx#_ftn10" name="_ftnref10" style="mso-footnote-id: ftn10;" title="">[10]The rules created a Film Censors Central Board composed of a full-time chairman and six other members to be appointed by the central government. This Board is headquartered in Bombay[11]and is required to submit annual reports of its work to the central government, and to guide and monitor the work of subordinate regional boards, where the actual process of censorship takes place.[12]In each of the cities of Bombay, Calcutta, and Madras, there is a regional and assistant regional official.[13]Both the Censorship and the Censorship Rules provide for the appointment advisory panels consisting of an unspecified number of persons “qualified in the opinion of the Central Government to judge the effect of films on the public”, in each of the above regional centres to assist in the examination and certification of films.[14]
Upon receipt of a film certification application for public exhibition, the regional officer is expected to appoint a review committee that objectively examines the film and proposes a relevant certification.[15]In the case of news-reels documentaries, cartoons or instructional films the review committee consists of one advisory panel member and regional or assistant regional officer; whereas in the case of any other film the committee consists of four advisory panel members and regional or assistant regional officer. Immediately after viewing the film in question, the members of the reviewing committee will decide whether the film will obtain an “U” (suitable for unrestricted public display) or an “A” (suitable for adult-restricted public display) or no certificate, or whether a “U” or “A” certificate may be given if certain parts of the film are expurged.[16]The rules require that the opinion of the committee members with regard to recommended certification be recorded,[17]but the actual deliberations of the committee, however, are never transcribed.[18]
The final decision about a film’s certification shall be valid in India for a period of ten years[19], at the end of which time it may be extended without further scrutiny.[20] Notwithstanding this, the central government may, on its own initiative, order (1) that a film already certified by the board be uncertified, (2) that a “U” certificate be changed to an “A” certificate, or (3) that a film’s exhibition be suspended for a period of up to two months, during which time it shall be considered to be uncertain.[21]Moreover, either the central government or the board may call for a re-examination of a previously certified film on a request from a board member or one of its advisory panels.[22]The Cinematograph Act and the Censorship Rules also provide for the cancellation of a certificate and the imposition of criminal penalties for the exhibition of a film in a manner otherwise than as prescribed by the certificate.[23]
With this review of the procedural framework of the Cinematograph Act, substantive rules which are currently applied to films in India would now be considered in some details in this paper. It is these substantive provisions which have been the focus of recent judicial and popular criticism.
      B.   Substantive Rules
The Cinematograph Act sets forth the principal tenet which should guide the censorship authorities in certifying films for public exhibition. Section 5B(1) of the Act provides :
[A] film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interest of the security of the State, friendly relations with foreign states, public order, decency or mortality, or involves defamation or contempt of court or is likely to incite the commission of any offense.
The Cinematograph Act and the Censorship Regulations both provide for the cancelation of a certificate and the enforcement of criminal penalties for film exhibition in a manner other than that prescribed by the certificate.[24]
Pursuant to this provision, the Ministry of Information and Broadcasting issued its latest set of directives on February 6, 1960 which set forth the specific rules designed to guide the various censorship boards in sanctioning films.[25]These rules are classified into general principles and application of general principles. These are the following principles[26]:
   ·       The film medium should remain responsible and sensitive to society’s values and expectations and the film should be of aesthetic value and a good standard cinematically, as far as possible
    ·       No unduly curbing artistic expression and creative freedom, and qualification should be open to social change;
     ·       The film should be analyzed in the light of the time portrayed in the film, context, theme and persons to which the film relates, and should be judged from the point of view of its overall effect and the country’s contemporary standards.
     ·       Notwithstanding any of the above, a film should not be approved for exhibition if, in the Board’s view, the film or any portion thereof is contrary to the interests of India’s sovereignty and independence, the protection of the State, friendly ties with foreign States, public order, decency or morality, or involves defamation or contempt of the courts, or is likely to incite commissions of any offence.
     ·       Subject to the provisions set out above in sub-section (1) and (2), the Central Government may issue directions as it may deem fit to lay down the principles to guide the Board when granting a certificate under the Cinematograph Act for the sanctioning of films for public display.
In addition to the above instructions, some other unwritten rules regulating appropriate film motifs have found their way into the censor’s authority’s ambit. Perhaps the most popular of these is the virtual prohibition of kissing between people of the opposite sex in Indian movies. The film censors have applied this unwritten rule with such rigor that it is not appropriate to display even kisses shared in a distinctly non-incestuous way between a mother and her son or father and his daughter. Although public displays of affection, like kissing, are not traditional or acceptable conduct in India, the proscription of
the film censor against kissing raises significant constitutionality problems in connection with other substantive rules of the code, which are only now recognized by the courts and legal commentators. In a similar league, though having more precedent in applying the general principles provided by the Central Government is the peculiar fascination of the film censor with proper coverage of the female bust.[27]
The K.A. Abbas Decision[28]: New Theory on Film Certification
K.A. Abbas, a noted Indian journalist, playwright, film producer, and former member of the 1968 Enquiry Committee on Film Censorship, produced in 1968 a short documentary film entitled a “Tale of Four Cities,” in which he sought to contrast, by way of social statement, the self indulgent life of the rich in Calcutta, Bombay, Madras and Delhi with the squalor and destitution of the labouring masses who helped to construct the imposing residences, factories, and other industrial complexes utilized by the rich. The documentary is further described by the Supreme Court follows:
The film is in black and white and is silent except for a song which the labourers sing while doing work and some back- ground music and sounds for stage effect. The film in motion sequences or still shots shows contrasting scenes of palatial buildings, hotels and factories – evidence of a few, and shanties, huts and slums – evidence the masses. These scenes alternate and in between are other scenes showing sweating labourers working to build the former and those showing the squalid private life of these labourers. Some shots mix people riding in lush motor cars, with rickshaw and handcart pullers of Calcutta and Madras. In one scene a fat and prosperous customer is shown riding a rickshaw which a decrepit man pulls sweating and panting hard. In a contrasting scene the same rickshaw puller is shown sitting in the rickshaw pulled by his former customer… on view are the statues of the leaders of Indian Freedom Movement looking impotently from their high pedestals, in front of palatial buildings on the poverty of the masses.
In this case, censorship under the Cinematograph Act and Rules framed thereafter in 1983 was challenged on the ground of it being violative of Article 19(1) (a) of the Constitution. The appellant argued that the clause stated in various sections of the Act, i.e. section 5(1)(B), section 4 and the refusal by the CFBC to grant his film a certificate without multiple cuts, clearly violated the constitutional right to freedom of speech and expression. The Supreme Court, however, took a stand in this case in favor of reasonable censorship and tested the said provisions of the challenged Act on the touchstone of fair restraint provided for in Article 19(2) of the Constitution. The Supreme Court observed that censorship is a valid exercise of power in the interest of the public morality and decency.
However one of the landmark case, where in the Supreme Court zealously protected the freedom of expression is that of Rangarajan v. P.Jagjivan Ram[29]. In this famous case, the Supreme Court overturned the Madras High Court judgment which had revoked a ‘U’ certificate awarded to the film Ore Oru Gramathille. This film which was based on the critical aspect of the government’s reservation policy was seen by the Madras High Court as portraying a theme which could cause widespread unrest and law and order problem in the state of Tamil Nadu. But the when the matter went to the Supreme Court as an appeal, the Court demolished the argument of the state that the film ought to be refused a ‘U’ certificate on the apprehension that it may create a public stir. The Court stated that:
“It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inabilit
y to handle the hostile audience problem”.[30]
The latest case in which the Central Board of Film Certification stepped in and whipped over its overreach in the courts is that of the controversy surrounding the film Udta Punjab. In this case, the Board refused to approve the film Udta Punjab based on the prevalent drug problem in Punjab State. Apart from its reluctance to approve, the board recommended nearly 13 cuts in the film as a compulsory step to obtain certification. Nevertheless, at the filmmaker’s appeal, the Bombay High Court criticized the Film Certification Central Board for its actions and poor handling of the issue. The Court made a very important observation that the Board does not actually have the power to censor videos. The word censor doesn’t appear in the Cinematograph Act. The board may make changes to the film, but this power must be exercised in line with constitutional guarantees and orders of the Supreme Court.[31]It can reasonably be assumed that in this situation, the Court’s decision would certainly act as a landmark that can pave the way for the Certification Board’s long pending reformation. It can be seen that the Board has wrongly extended its authority, which in reality meant being restricted only to the approval of films for exhibition, to now also include the power to censor within it. Such a Board mentality, which is politically motivated several times, will jeopardize the citizens ‘ rights.
Procedural Inadequacies in Censorship Laws
In the Abbas case, the court declined to go into the matter of the procedural inadequacy of the Film Code on the assurance of Solicitor-General that legislation would be effected in the near future to fix reasonable time-limits for the decisions of the film censors and for providing an appeal to a court of law or independent tribunal rather than to the Central government. Unfortunately, little has been done to implement these proposals, despite court prodding and heated criticism from the film industry itself.
Everyone in a democratic country has the right to express his views on different matters. Every day millions of views are shared in different ways throughout the world. A lot of Indians don’t support many of themBut does that mean scrapping those out? Or must the writers smash the courts ‘ doors on every occasion if their opinions fail to satisfy a billion people? Movie is a legitimate and one of the most important medium for tackling general problems. Moreover, they are not openly screened for everyone. It is available to only those people who are willing to buy tickets, go to the theatres and watch them. Unwilling people can always choose to stay away from the movies. The case of the Sree Raghavendra Films brings out the unfortunate truth about how decisions on restricting films are passed on in this country without any factual basis. It would not be shocking if, instead of being an exception, such is the order of the day. A filmmaker has the right to disseminate his own views which may not be accepted by others but which do not dissuade his right to express himself and form his creations. Neither all expressions of the opposing point of view nor expressions which do not attract the approval of those holding State power can be deemed to be detrimental to the State or public order.[32]
The legislation intended under Article 19(2) of the Constitution is to be implemented in such a way that it serves the wider public good; but it has, sadly, been used on many occasions in practice to strangulate the freedom of speech and of expression. The grounds listed in it were often interpreted quite broadly, at the slightest opportunity, to clamp down on films. The question arises under such circumstances-do we really need such a restriction? After seeing all those arbitrary assaults on freedom of speech, it seems that ‘ fair ‘ restriction really requires consideration in order to match the so-called globalized and liberal environment. The above debate makes it clear that under specific circumstances censorship of the motio
n pictures was not enforced on legitimate constitutional or legal grounds but to serve the interests of various powerful groups, whether financial, religious or political. Censorship of the aforementioned type can be justified under no circumstances. India’s argument to be a diverse country with specific set of problems has often been put forward and the need for restrictions has been overemphasized. But the constraints in fact have worked more in the negative sense than in the positive development. In several cases, the concept of public interest or public good that was regularly used by the State as a shield when censoring films is somewhat peculiar. Either’ Deshdrohi’ or the Gujarat riot films or otherwise, the State did not provide a solution to the real problem, but whenever any film attempted to focus on the issue, it was immediately banned. If the State does not provide the healing touch to the victims, then at least, the State is not safeguarding anybody’s interest by censoring films.[33]
Conclusion
It’s absolutely absurd to ban movies in the interest of keeping public peace, respecting people’s feelings and similar reasons. Via indirect perception it may send the public wrong message. It is also the best thing that the spectators themselves watch and shape their own opinion. In a country like ours, general public may be stripped of proper education but not always of common sense. It is groups with distorted biases that deliberately misrepresent the subject matter and deceive others to further their own ends. Instead, no group is taking the role of a proper guide.
After a thorough review of all those events, judgements and rules, it becomes highly debatable the practices and reasoning of creating a Censor Board. If we need such a body at all, it needs to be more independent, rather than a pawn in the government’s hands. Furthermore, scrapping movies regardless of the Censor Board’s clearance is not just an arbitrary act but a disturbing pattern of growing intolerance. Overall, the country’s higher courts have done a praiseworthy job but recurrence of similar issues is the subject of debate. Therefore a permanent solution is important. Enacting a new law is imperative. In that direction, court judgments, particularly of Shankarappa and Ranarajan, may act as the bacon light. It is better to have a rating body in the prevailing circumstances than a Censor Board of the very nature that we have at the moment. The scope of power to censor should be very limited. The most important criterion for such body should be that the Government may forward its suggestions/recommendations but the decision must be taken by it independently. Censorship authority granted to States must be significantly narrowed down. We will satisfy the Central Authority as to why the ban is necessary in their jurisdiction, and why there is no alternative left.
The right to impose restrictions is not the power available to be used in an arbitrary manner or in order to promote the interests of those in authority or to suppress dissent. Although we assert the right to information enthusiastically[34], we can’t sit back and ban movies and thus censor information. Unless India’s authors, playwrights and filmmakers are to properly exercise their right to free speech, the utmost requirement is to abolish the restrictive clauses provided for in Article 19(2). If, in the extreme cases, any restriction is to be found, it is left to the judiciary on which the nation has had tremendous confidence since its inception. In addition, the judiciary will recover from the recent hiccups and faithfully uphold the right as it had done throughout. In the event that any illegal means are adopted by any person(s) to stop film screening, the Government must ensure that law and order are upheld by taking appropriate action against the person. It is also bound to take necessary preventive measures. Otherwise, it should be held for contempt of court.
On a whole, the test for allowing restrictions upon free speech should strive to be somewhat more stringent. Legal restraints upon individual freedom of speech should only be tolerated where they are absolutely necessary to prevent infliction of actual harm. Therefore, if democracy is to evolve, it can be correctly inferred that film and documentary screening should never be refused for reasons based on pure speculation since banning motion pictures is equal to banning the right to freedom of speech and expression. Some developments concerning the subject are indeed encouraging; however, we have greater heights to reach.

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[1] N. Hunnings, Film Censors and the Ļaw 18 (1967), Journal of the Film Industry


[2] Art. 19(1) (a), The Constitution of India, 1950

[3] A.G. Noorani, India’s Constitution and Politics, 1970

[4] M.P. Jain, Indian Constitutional Law 522-34 (2nd ed. 1970).

[5] AIR 1971 SC 481

[6] S. 3(1), (2), Cinematograph Act, 1952

[7] S. 3(3), Cinematograph Act, 1952

[8] S. 8, Cinematograph Act, 1952

[9] The Cinematograph (Censorship) Rules, 1951

[10]The Cinematograph (Censorship) Rules, 1958, published in the Gazette of India Oct. 11, 1958

[11] Rule 6, The Cinematograph (Censorship) Rules, 1958

[12] Rule 11, The Cinematograph (Censorship) Rules, 1958

[13] Rule 10, The Cinematograph (Censorship) Rules, 1958

[14] S. 5, Cinematograph Act, 1952

[15] Rule 23(1), Cinematograph (Censorship) Rules, 1958

[16] Rule 23(3) (a), (b) and (c), Cinematograph (Censorship) Rules, 1958

[17] Rule 23, Cinematograph (Censorship) Rules, 1958

[18] Levin, Hearing Procedures of Three Indian Administrative Agencies, J.I.L.I. 205, 209(1962).

[19] S. 5A(3), Cinematograph Act, 1952

[20] A re-examination is dispensed with, provided that the regional officer and the chairman of the Central Board agree upon such a course of action. Rule 28(2), Censorship Rules, 1958.

[21] Rule 32, Censorship Rules, 1958

[22] Rule 33, Censorship Rules, 1958

[23] S. 7, Cinematograph Act, 1952; Rule 29, Censorship Rules, 1958. Although the Cinematograph Act provides for the imposition of criminal penalties, the courts have held that the Act is not strictly speaking a criminal statute, but rather that, in regulating the exhibition of films, its purpose is largely recreative or educational. Net Ram Agarwalla v. State of West Bengal , A.I.R. 1955 Cal. 609.

[24] S. 5B(2),Cinematograph Act, 1952

[25] Ministry of Information and Broadcasting, Principles For Guidance In Certifying Films, G.S.R. 168 (Í966) in Cinematograph Laws Research Institute.

[26] Report of the Committee of Experts to examine issues of certification under the Cinematograph Act, 1952,

[27]Bruce Michael Boyd, Film Censorship In India : A “Reasonable Restriction” On Freedom Of Speechand Expression, Journal of the Indian Law Institute, Vol. 14, No. 4 (October-December 1972), pp.501-561

[28] K.A. Abbas v. UOI, A.I.R. 1971 S.C. 481.

[29] Rangarajan v. P Jagjivan Ram, (1989) 2 S.C.C. 574.

[30] Id

[31] Punjab with one little cut, INDIAN EXPRESS, http://indianexpress.com/article/india/india-news-india/censor-wanted-13-cuts-court-clears-udta-punjab-with-one-2850991/ (July 13, 2016, 06:50 am).

[32]Subhradipta Sarkar, RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY


[33] Vijay G., A STUDY ON BANS AND CENSORSHIP ISSUES IN INDIAN CINEMA, International Journal of Pure and Applied Mathematics, Volume 120 No. 5 2018, 1603-1617

[34] Right to Information Act, 2005, No. 22 of 2005.

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