GRANTING OF CERTIFICATE TO FILMS UNDER CINEMATOGRAPHIC ACT -Kaviya Singh INTRODUCTION India has the widest movie industry in the world, taking on a mean of nearly one thousand feature films and nearly fifteen hundred short films per annum. Film production and exhibition occupy a crucial place within the field of culture, tradition and lifestyle of any country. Films play a very vital role in shaping popular opinion and imparting knowledge and understanding of lives and traditions of people. The favored appeal and accessibility of films make them a crucial instrument of aesthetic education for broad sectors of the population. To exhibit the films made in the country there is a Central Board of Film Certification which presently views the content overdoing decency and morality and doesn't violate the liberty of speech and expression. Presently, there's no government control or regulation during production, except just in case of films produced by Doordarshan and National Film Development Corporation where they approve the story beforehand. Constitution enshrines “Freedom of speech and expression” which is also an integral concept in modern liberal democracies. Films are a cinematographic interpretation of this constitutional right. Hence, we often face dialect when a film is banned; fundamental right of liberty of speech and expression? Films are banned due to issues associated with obscenity, sex and violence but this text doesn't shall get into those factors rather it explores the opposite factors. Many films are banned or targeted within the name of maintaining public order; respecting beliefs, sentiments and traditions; or for criticizing the state on a particular issue and these are the areas the article primarily focuses on. The project here doesn't enter intricacies of the subjective matter of the problems; instead, it limits itself to testify the legal validity of the bans within the light of the liberty of speech and expression. during this quest, it presents some controversies within recent times, highlights certain judgments and relevant legal provisions and eventually verifies the legality of such bans. In general, censorship involves the suppression of speech or other public communication, which raises problems with freedom of speech, which is nominally protected by the Indian constitution. It guarantees freedom of expression but places certain restrictions on content, with a view towards maintaining communal and religious harmony, given the history of communal tension within the state. FREEDOM OF SPEECH AND EXPRESSION 2.1 Article 19(1) (a) - Freedom of Speech and Expression India has a free press, and the same freedom applies to cinema, which is free enterprise outside the control of the Government, except the Films Division and Doordarshan which are aimed at education and information while entertaining. The press in India is said to be the most free of control compared to other countries of the world, and the same applies to cinema. However, neither cinema nor the press is separately listed in the constitution; all those freedoms are a constitutional right. This is because Press and Cinema fall under the fundamental Rights Chapter of the Constitution, particularly article 19(1) (a) which says all persons shall have freedom of speech and expression. “The freedom of expression means the right to express ones opinion by word of mouth, writing, painting, picture or any other manner, including movies”. The phrase “speech and expression” used in Article 19(1) (a) has been given a broad connotation by Indian judiciary. This right includes the right to communicate, print and advertise the information. In India, freedom of the press is implied from the freedom of speech and expression guaranteed by Article 19(1) (a). The freedom of the press is regarded as a “species of which freedom of expression is a genus”. In Maneka Gandhi v. Union of India, BHAGWATI J. has emphasized on the significance of the freedom of speech & expression in these words: “Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential.” 2.2 Article 19(2) - Reasonable Restrictions Patanjali Shastri,J. in A.K. Gopalan case, has observed, “man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals”. Explaining the scope of freedom of speech and expression Supreme Court has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation. But this right is subject to “reasonable restriction” on grounds set out under Article 19(2) of the Constitution. Reasonable limitations can be imposed in the interest of the sovereignty and integrity of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Thus the framers of the Indian Constitution felt it necessary to put certain reasonable restrictions in the larger interest of the community and country and strike a proper balance between liberty guaranteed and the social interests specified under Article 19(2). Furthermore, it is the duty of the state to protect the freedom of expression since it is a liberty guaranteed by it. It is, therefore, clear that while the media print, electronic, film or any other, is free to express opinion and thought, it is only in the larger public interest that there should be some control however, miniscule. Furthermore, since the reasonable restrictions are in public interest, it becomes the duty of the public to ensure that this freedom is not violated by the unscrupulous elements in society, bent upon misusing the liberty given to them by the State and the Constitution. 2.3 Ambit of Censorship After the freedom of press was involved under the ambit of Freedom of Speech and Expression, the challenges doubled with the changing times and the increasing rate of globalization. The new legal challenges included the issues of individual privacy, intellectual property, obscenity, morality, social mores rather than political speeches. In the area of films, immorality, indecency and obscenity became the biggest threat, and they challenged the governing system of the country and posed a question whether the FREEDOM GIVEN SHOULD BE ABSOLUTE OR FETTERED? Various acts were enacted to embody the restrictions, namely: The Indian Penal Code, 1860, The Cinematographic Act, 1952, The Dramatic Performances Act, 1876, The Customs Act, 1962, The Post Office Act, 1898, The Indecent Representation of Women (Prohibition) Act, 1980, The Young Persons (Harmful Publications) Act, 1956, The Information Technology Act, 2000, The Cable Television Networks (Regulation) Act, 1995. 2.3.1 MEANING OF WORDS DECENCY AND MORALITY cannot be ascertained due to their vagueness and elastic notions. Supreme Court has stated in the case of kalyandas1 that such notions vary from country to country, depending upon the standards of the morals of contemporary society. But in a country like ours, which is socially disparate and culturally diverse, there are wide varying standards and it becomes extremely difficult to define or straitjackets these concepts. 2.3.2 THE RELATIONSHIP BETWEEN OBSCENITYAND INDECENCY is established as the latter has a wider notion and includes the former in every circumstances, so anything which is obscene will definitely be indecent but it is not important that whatever is indecent will always be obscene. Obscenity as been defined under the S-292 of Indian Penal Code, 1860 as: “For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one ofits items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”. ______________________________________________________________________________ (1969) 2 SCC 687 2.3.3 INTERPRETATION OF THE WORD OBSCENITY has been given a very wide interpretation by the apx Court. In the case of Samaresh Bose vs Amal Mitra2, the Supreme Court differentiated between obscenity and vulgarity saying: "A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novels, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences." The courts have also been careful in distinguishing between mere references to sex or sexual explicitness from obscenity or indecency, in the cases of: In K.A. Abbas v. Union of India3 the Supreme Court observed that sex and obscenity are not always synonymous and that it was wrong to classify sex as essentially obscene or even indecent or immoral Bobby Art International v. Om Pal Singh Hoon4 was another case where the Supreme Court drew a distinction between nudity and obscenity. The petition was filed by a member of the Gujjar community seeking to restrain the exhibition of the film Bandit Queen on the ground that the depiction in the film was "abhorrent and unconscionable and a slur on the womanhood of India" and that the rape scene in the film was "suggestive of the moral depravity of the Gujjar community". The Court rejected the petitioner's contention that the scene of frontal nudity was indecent within Article 19(2) and Section 5-B of the Cinematograph Act and held that the object of showing the scene of frontal nudity of the humiliated rape victim was not to arouse prurient feelings but revulsion for the perpetrators. In Ranjit Udeshi v. State of Maharashtra5 the Court remarked: That treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. (1985) 4 SCC 289 (1970) 2 SCC 780 (1996) 4 SCC 1 Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881, para 7, at p. 885 The Court drew a difference between obscenity and pornography. It was held that while pornography denotes writings, pictures etc. intended to arouse sexual desire, obscenity may include publications not intended to do so but which have that tendency. While both offend against public decency and morals, pornography is obscenity in a more aggravated form The first sub-section of Section 292 ... does not make knowledge of obscenity an ingredient of the offence. The prosecution need not prove something which the law does not burden it with. If knowledge were made a part of the guilty act (actus reus), and required the prosecution to prove it, it would place an almost impenetrable defence in the hands of offenders. Something much less than actual knowledge must therefore suffice. ... the difficulty of obtaining legal evidence of the offender's knowledge of the obscenity of the book etc. has made the liability strict. Tests of Obscenity: The Supreme Court has recognized that there can be no uniform test of obscenity and that each case would have to be judged on its own facts. Thus, the Court has, through various judgments laid down the broad parameters to be followed in judging whether a particular publication amounts to obscenity: (1) HICKLINS TEST: Cockburn, C.J.6 laid down the test as: "... I think the test of obscenity is this whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall ... it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character." The Hicklin test was based upon the effect of a publication on the most vulnerable members of society, whether or not they were likely to read it. The Supreme Court in India chose to adopt it in Ranjit Udeshi v. State of Maharashtra7 holding that  R. v. Hicklin, (1868) 3 QB 360 the Hicklin test should not be discarded on the ground that "it makes the court the Judge of obscenity in relation to an impugned book etc. and lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influences" This was contrary to the definition contained in Section 292(1) of the Indian Penal Code which stresses upon the effect the publication had on "persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, and not just on any person into whose hands the publication may accidentally fall”. The Ranjit Udeshi case arose out of an appeal in the Supreme Court against the conviction of a bookseller and his partners by the Bombay High Court for being in possession of an "obscene" book, Lawrence's Lady Chatterley's Lover. The Supreme Court relied on the test in Hicklin's case and further interpreted the word "obscene" to mean that, which is "offensive to modesty or decency; lewd, filthy and repulsive". In determining what can be classified as "obscene", the Court held that regard should be had to "our community mores and standards" and whether the material "appeals to the carnal side of human nature or having that tendency". (2) THE LIKELY AUDIENCE TEST The "most-vulnerable-person" standard laid down by Hicklin23 was thus replaced by the "likely-reader test" recognized under Section 292(1) of the Indian Penal Code. Therefore, what must be considered is the impact on those who could be reasonably be expected to gain access to the publication. In other words the test was based on the target audience, not the person whose hands the book might stray into. This was confirmed by the Supreme Court in Chandrakant v. State of Maharashtra8 thus: "What we have to see is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds." ______________________________________________________________________________  Ranjit Udeshi, AIR 1965 SC 881, para 19, at p. 888  Chandrakant, (1969) 2 SCC 687, para 12, at p. 694. (3) LITERARY MERIT AND PREPONDERING SOCIAL PURPOSE Where art and obscenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its "obscene" content. Supreme Court in Ranjit Udeshi case9 held: “Where art and obscenity are mixed, the element of art must be so preponderating as to overshadow the obscenity or make it so trivial/inconsequential that it can be ignored; Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech...." There was, however, a change in the Court's outlook in K.A. Abbas v. Union of India10 where the Supreme Court held: "The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. ... Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censor's scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother…Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor's scissors but how the theme is handled by the producer." Hidayatullah, C.J. criticized the failure of Parliament and the Central Government to separate the artistic and socially valuable from the obscene and indecent and to appreciate that the artistic presentation of an episode could negate or render inconsequential its potential to deprave. The Court expressed its dissatisfaction that the law showed more concern for the depraved rather than the ordinary moral man. (4) THE AVERSION DIVISION Nudity and sexual explicitness do not by themselves constitute obscenity. Authors and film-makers sometimes depict nudity not to arouse sexual desire but on the contrary to arouse horror ______________________________________________________________________________ Ibid, 7 Ibid, 4 the "aversion defence". Perhaps, the best example of the aversion test in India could be seen in Bandit Queen case11. The petitioner in that case had challenged a scene of frontal nudity where Phoolan Devi had been paraded naked before the village after days of being gang-raped by members of the Gujjar community. Rejecting the challenge under Section 5-B of the Cinematograph Act, the Court held: "The object of the scene of frontal nudity was not intended to 'titillate' the cinemagoer's lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was not at Phoolan Devi's nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse the baser instinct. ... We do not censor to protect the pervert or to assuage the susceptibilities of the oversensitive. "Bandit Queen" tells a powerful human story and to that story the scene of Phoolan Devi's enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: her rage and vendetta against the society that had heaped indignities upon her.” The Court quoted with approval, the comparison made by the Appellate Tribunal with the scene of naked men and women being led to their death in a Nazi concentration camp in the film Schindler's List and took the view that a film that condemns social evil must necessarily show that evil and that the scenes of nudity and rape were intended not to arouse prurient or lascivious thought but revulsion against the perpetrators and pity for the victim. Such powerful portrayals are not to be censored in the name of perverts who would feel titillated rather than revulsed even at such scenes. As Hidayatullah, C.J. (as he then was) remarked in K.A. Abbas12: "If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped." (5) CONTEMPORARY AND NATIONAL STANDARDS In judging as to whether a particular work is obscene, regard must be had to contemporary mores and national standards. Clause 1(a) of the Guidelines issued and revised under Section 5-B of the Cinematograph Act, sets out the principles which guide the Censor Board in granting certificates ____________________________________________________________________________ Bobby Art International v. Om Pal Singh Hoon (1996) 4 SCC 1 Ibid, 10. to films for public exhibition. It lays down: "1. The objectives of film certification will be to ensure that- the medium of film remains responsible and sensitive to the values and standards of society; Clause 3(ii) reads thus: "The Board of Film Certification shall also ensure that the film— (ii) is examined in the light of the period depicted in the film and the contemporary standards of the country and the people to which the film relates, provided that the film does not deprave the morality of the audience." While the Supreme Court in India held Lady Chatterley's Lover13 to be obscene, in England the jury acquitted the publishers finding that the publication did not fall foul of the obscenity test.  Perhaps "community mores and standards" played a part in the Indian Supreme Court taking a different view from the English jury. The test has become somewhat outdated in the context of the internet age which has broken down traditional barriers. (6) JUDGING THE WORK AS A WHOLE It is necessary that publication must be judged as a whole and the impugned passages should also separately be examined so as to judge whether the impugned passages are so grossly obscene and are likely to deprave and corrupt. Likewise, clause 3(i) of the Guidelines issued under Section 5-B of the Cinematograph Act provides that: "The Board of Film Certification shall also ensure that the film- is judged in its entirety from the point of view of the overall impact;..." (7) OPINION OF LITERARY/ARTISTIC EXPERTS In Ranjit Udeshi’s  case the Supreme Court held that the delicate task of deciding what is artistic and what is obscene has to be performed by courts and as a last resort by the Supreme Court and therefore, the evidence of men of literature or others on the question of obscenity is not relevant.  R. v. Penguin Books, 1961 Cri LR 176. (8) CLEAR AND PRESENT DANGER In S. Ragarajan v. P. Jagivan Ram14, while interpreting Article 19(2), the Supreme Court borrowed from the American test of clear and present danger and observed : "the commitment to freedom demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably like the equivalent of a 'spark in a power keg'." (9) TEST OF ORDINARY MAN The test for judging a work should be that of an ordinary man of common sense and prudence and not an "out of the ordinary or hypersensitive man". As Hidayatullah, C.J. (as he then was) remarked in K.A. Abbas15: "If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped." ______________________________________________________________________________ (1989) 2 SCC 574. Ibid, 4.  CHAPTER 3: CENTRAL BOARD OF FILM CERTIFICATION (CBFC) INSTITUTED UNDER CINEMATOGRAPHIC ACT, 1952. The Central Board of Film Certification is a central body governing and supervising the categories of films being released every year. There are more than 10,000 movies being released every year in broad three types of celluloid, video and digital. The Board is mainly concerned with possible unhealthy influence of the films on the viewing public,  regularly orders directors to remove anything it deems offensive, including sex, nudity, violence or subjects considered politically subversive. Films can be publicly exhibited in India only after they have been certified by the Central Board of Film Certification. According to the Supreme Court of India16: “Film censorship becomes necessary because a film motivates thought and action and assures a high degree of attention and retention as compared to the printed word. The combination of act and speech, sight and sound in semi darkness of the theatre with elimination of all distracting ideas will have a strong impact on the minds of the viewers and can affect emotions. Therefore, it has as much potential for evil as it has for good and has an equal potential to instill or cultivate violent or bad behaviour. It cannot be equated with other modes of communication. Censorship by prior restraint is, therefore, not only desirable but also necessary.” The Central Board of Film Certification works with a vision17 of: To ensure healthy entertainment, recreation and education to the public.  To make the certification process transparent and responsible. To create awareness among advisory panel members, media and film makers about the guidelines for certification and current trend in films through workshops and meetings. To adopt modern technology for certification process through computerization of certification process and up-gradation of infrastructure. To maintain transparency about Board’s activities through voluntary disclosures, implementation of e-governance, prompt replies to RTI queries and publication of annual report.  "India's film censor wants to legalise porn", BBC News, 27 June 2002. Retrieved 29 May 2006. http://cbfcindia.gov.in/html/uniquepage.aspx?unique_page_id=20 3.1 CONSTITUTION OF THE BOARD The Board, set up under the Cinematograph Act, 1952 consists of 14 non-official members and a Chairman (all of whom are appointed by Central Government) and functions with headquarters at Mumbai. It has nine regional offices, one each at Mumbai, Kolkata, Chennai, Bangalore, Thiruvananthapuram, Hyderabad, New Delhi, Cuttack and Guwahati. The Regional Offices are assisted in the examination of films by Advisory Panels. The members of the panel are appointed by Central Government by drawing people from different walks of life like social sciences, education, legal, film making, art, etc. etc. The Regional Offices are assisted in the examination of films by Advisory Panels. The members of the panel are appointed by Central Government by drawing people from different walks of life like social sciences, education, legal, film making, art, etc. etc. 3.2 CERTIFICATES BEING GRANTED BY THE BOARD: Films are certified under 4 categories. Initially, there were only two categories of certificates – "U" (unrestricted public exhibition) and "A" (restricted to adult audiences). Two more categories were added in June 1983 – "UA" (unrestricted public exhibition subject to parental guidance for children below the age of twelve) and "S" (restricted to specialized audiences such as doctors or scientists). U (Unrestricted Public Exhibition) Films with the U certification are fit for public exhibition, and are often family friendly. These films can contain universal themes like education, family, drama, romance, sci - fi, and action etc. Now, these films can also contain some mild violence, but it should not be prolonged. U/A (Unrestricted Public Exhibition - but with a word of caution that Parental discretion required for children below 12 years) Films with the UA certification can contain universal to adult themes, that are not strong in nature and can be watched by a child under parental guidance. These films can contain some strong violence, frightening scenes and bad, abusive, filthy language etc. A (Restricted to adults) Films with the A certification are available for public exhibition, but with restriction to adults. These films can contain heavily strong violence, kissing scenes, implied sex, some coarse language and even some controversial and adult themes considered unsuitable for young viewers. Such films are often recertified for TV and video viewing, which doesn't happen in case of U and UA certified movies. S (Restricted to any special class of persons) Films with S certification should not be viewed by the public. Only people associated with science (Engineers, Doctors, Scientists etc.) have permission to watch those films. 3.3 CLASSIFICATION OF FILMS FOR CERTIFICATION For the Act of 1952, films are cinematographic films, defined under section 2(dd) inserted in the Act by Ins. by Act 3 of 1959, Cinematography (from Greek: κίνημα, kinema "movements" and γράφειν,graphein "to record") ‘is the science or art of motion-picture photography by recording light or other electromagnetic radiation, either electronically by means of an image sensor, or chemically by means of a light-sensitive material such as film stock’. 3.4 WHY IS FILM CENSORSHIP NECESSARY? While the media in our country is free, regarding films it is considered necessary in the general interest to examine the product before it goes out to the public because it is an audio visual medium whose impact is far stronger than that of the printed word. Film censorship or certification is thus the end product of a process of pre-viewing of films and it includes a decision either not to allow a particular film for public viewing or to allow it for public viewing with certain deletions and alterations. Furthermore, it is for ensuring that people do not get exposed to psychologically damaging matter. The Supreme Court in its judgment dated 30-3-1989 in Civil Appeal Nos. 13667- 68 of 1988 relating to the censorship of the film “Ore Oru Gramathile” (Tamil) held that the film censorship becomes necessary because “a movie motivates thought and action and assures a high degree of attention and retention. It makes its impact simultaneously arousing the visual and aural senses. The focusing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective. The combination of act and speech, sight and sound in semi-darkness of the theatre with elimination of all distracting ideas will have an impact in the minds of spectators. It can, therefore, be said that the movie has unique capacity to disturb and arouse feelings. It has as much potential for evil as it has for good. It has an equal potential to instill or cultivate violent or good behavior. With these qualities and since it caters for mass audience who are generally not selective about what they watch, the movie cannot be equated with other modes of communication. It cannot be allowed to function in a free market place just as does the newspapers or magazines. Censorship by prior restraint is, therefore, not only desirable but also necessary”. 3.5 GRIEVANCES FOR CENSORSHIP: A Film Certification Appellate Tribunal (FCAT) has also been constituted under section 5D of the Cinematograph Act 1952 for hearing appeals against any order of the CBFC. While the work of certification of films is a Central subject, the states have to enforce these Censorship provisions and initiate legal proceedings against offenders. The organizational structure of the CBFC is based on the provisions of the 1952 Act and the Cinematograph (Certification) Rules 1983. The Chairman and members are appointed for a term of three years or till such time as the Government may direct. They comprise of eminent persons from different walks of life such as social sciences, law, education, art, films and so on, thus representing a cross-section of society. The CBFC is assisted by the Advisory Panel in various regional offices which are headed by Regional Officers. The members of these panels are also representative of cross-section of society and interests. These members hold office till such time as the Government may direct but not exceeding two years. However, members can be re-appointed. The CBFC has divided into Examining and Revising Committees to provide a two tier system for certification of films. In the event of a difference of opinion in the Examining Committee or the applicant not being satisfied with the decision of the Examining Committee, the film can be referred to a Revising Committee. An appeal against decision of the Board lies to the Film Certification Appellate Tribunal. The Tribunal is presided by a retired Justice of the High Court and includes four members. The Certification Rules also apply to foreign films imported to India, dubbed films, and video films. The certification does not apply to films made specifically for Doordarshan, since it has its own system of examining such films. 3.6 WHAT GUIDES THE CBFC IN ITS DECISIONS Section 5B(2) of the 1952 Act lays down that, in addition to the general guideline laid down in Section 5B(1), the Government may issue “such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition”. These directions, are commonly understood as guidelines issued by the Government and have also been amended from time to time, keeping in mind the changes in social outlook from time to time and also the kind of films being made.   The Guidelines issued on December 6, 1991 state as under: 1. The objectives of film certification will be to ensure that –   a)  The medium of film remains responsible and sensitive to the values and standards of society; b)  Artistic expression and creative freedom are not unduly curbed; c)  Certification is responsive to social changes; d)  The medium of film provides clean and healthy entertainment; and e)   As far as possible, the film is of aesthetic value and cinematically of a good standard.   2. In pursuance of the above objectives, the Board of Film Certification shall ensure that- i)  Anti-social activities such as violence are not glorified or justified; ii) The modus-operandi of criminals, other visuals or words likely to incite the commission of any offence are not depicted; iii) Scenes – a. Showing involvement of children in violence as victims or perpetrators or as forced witnesses to violence, or showing children as being subjected to any form of child abuse; b. Showing abuse or ridicule or physically and mentally handicapped persons; and c. Showing cruelty to, or abuse of animals, are not presented needlessly; iv) Pointless or avoidable scenes of violence, cruelty and horror, scenes or violence primarily intended to provide entertainment and such scenes as may have the effect of desensitizing or dehumanizing people are not shown; v) Scenes which have the effect of justifying or glorifying drinking are not shown; vi) Scenes tendering to encourage, justify or glamorize drug addiction are not shown; Scenes tendering to encourage, justify or glamorize consumption of tobacco or smoking are not shown vii) Human sensibilities are not offended by vulgarity, obscenity or depravity; viii) Such dual meaning words as obviously cater to baser instincts are not allowed; ix) Scenes degrading or denigrating women in any manner are not presented; x) Scenes involving sexual violence against women like attempt to rape, rape or any form of molestation, or scenes of a similar nature are avoided, and if any, such incident is germane to the theme, they shall be reduced to the minimum and no details are shown; xi) Scenes showing sexual perversions shall be avoided and if such matters are germane to the theme, they shall be reduced to the minimum and no details are shown; xii) Visuals or words contemptuous of racial, religious or other groups are not presented; xiii) Visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitudes are not presented xiv) The sovereignty and integrity of India is not called in question; xv) The security of the State is not jeopardized or endangered; xvi) Friendly relations with foreign States are not strained; xvii) Public order is not endangered; xviii) Visuals or words involving defamation of an individual or a body of individuals, or contempt of court are not presented; Explanation: Scenes that tend to create scorn, disgrace or disregard of rules or undermine the dignity of court will come under the term “contempt of court”, and xix) National symbols and emblems are not shown except in accordance with the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950) 3. The Board of Film Certification shall also ensure that the film   i) Is judged in its entirety from the point of view of its overall impact; and ii) Is examined in the light of the period depicted in the films and the contemporary standards of the country and the people to which the film relates provided that the film does not deprave the morality of the audience. 4. Films that meet the above – mentioned criteria but are considered unsuitable for exhibition to non-adults shall be certified for exhibition to adult audiences only. 5. While certifying films for unrestricted public exhibition, the Board shall ensure that the film is suitable for family viewing, that is to say, the film shall be such that all the members of the family including children can view it together. If the Board, having regard to the nature, content and theme of the film is of the opinion that it is necessary to caution the parents / guardian to consider as to whether any child below the age of twelve years maybe allowed to see such a film, the film shall be certified for unrestricted public exhibition with an endorsement to that effect. If the Board having regard to the nature, content and theme of the film, is of the opinion that the exhibition of the film should be restricted to members of any profession or any class of persons, the film shall be certified for public exhibition restricted to the specialized audiences to be specified by the Board in this behalf. 6. The Board shall scrutinize the titles of the films carefully and ensure that they are not provocative, vulgar, offensive or violative of any of the above-mentioned guidelines. 3.7 THE PROCESS OF CERTIFICATION The procedure to be followed for ranting certificates to the movies is done in accordance with the act of 1972 and the Cinematograph (certification) Rules, 1983. The Cinematograph (Certification) rules, 1983 have laid down the procedure that a producer must go through to get his film or vide film certified, explicitly stating the steps he has to undergo and also the fees he has to pay and other materials he should submit. The film or video film and other material specified in rule 2.1 have to be submitted to the regional officer of the concerned regional centre. On receipt of all the film materials, requisite fees and written matter required under the rules, the regional officer will form an Examining Committee to view the film. Under rule 22, this Examining Committee, in the case of a short film, will consist of an officer of the CBFC and one advisory panel member either of whom shall be a woman, and in the case of a long film / feature film, four of the two persons shall be women.  After the film has been previewed, the CBFC has to ensure that each member gives a report in writing about his recommendations about the deletions and / or modifications and the certificate the film should be given. The report is then given to the Chairperson who will ask the regional officer to initiate further procedures. However, if the Chairperson, on his own motion or on the request of the applicant, so feels, she may refer the film to Revising Committee under Rule 24. The Revising Committee will consist of Chairperson, in his absence, a board member and not more than nine members, drawn either from the CBFC or the advisory panel, provided none of them was on the Examining Committee formed earlier. The Revising Committee will view the same film print shown to the Examining Committee without any changes, and each member will be required to record his verdict before leaving the theatre.  If the Chairperson is no in agreement with the majority view, she may direct another Revising Committee to see the film. The quorum of the Revising Committee shall be five members of whom at least two persons shall be women: Provided that the number of women members shall not be less than one-half of the total members of a committee constituted under sub-rule (2). After the applicant in apprised of the decision of the Board, he will delete any portions (if so directed) and submit them to the regional officer, along with one copy of the film as certified. Before any order prejudicially affecting the applicant of a film is passed by the Board, he is given an opportunity to represent his views in the matter before the EC/RC. If the matter goes in appeal under section 5C of the 1952 Act to the Film Certification Appellate Tribunal which is headed by a retired judge as Chairperson and not more than four other members, the FCAT may hear both the applicant and he CBFC before coming to its judgment.  3.8 HOW DOES GOVERNMENT ENSURE CLEANER FILMS?  India today has more than 13,000 cinema halls spread over the length and breadth of her territory. Furthermore, there are lakhs of video libraries and video parlours in the country. Obviously, it is a very difficult task for the official machinery to check any violations of the film certification provisions. The citizen will have to step in more actively if he has to ensure that he gets wholesome and clean entertainment that does not violate his norms of decency. On its own, the Government has form time to time been alerting the State Governments and Union Territory Administration about the problem and urging them to take action. They have been asked to give greater priority to incidents of interpolations and exhibition of uncertified films. The law has laid down clear rules for dealing with this problem and has also strengthened the penal provisions. Under section 5E of the 1952 Act, the Central Government can suspend a certificate granted to any film for a fixed period or even revoke it if the film is being shown in a form other than the one in which it was certified. The applicant of the certificate will have a right to appeal / review of the order under section 5F. PENALITIES FOR VIOLATIONS Offences with regard to violations of certification provisions are cognizable. Furthermore, they are non-bailable. Section 7 of the1952 Act provides that if there is violation of certification provisions or if there are interpolations or tampering of certified films or if non-certified films are exhibited, or where films meant for adult audience are shown to non-adults or where an “S” certificate film is shown to persons other than those for whom it is meant, then penalties specified therein can be imposed. Penalty can also be imposed for failure to comply with section 6A which required that any person delivering a film to an exhibitor or a distributor will also give to him details of all cuts, certification, title, length and conditions of certification. Under section 7, a person guilty of violation is punishable with imprisonment for a term which may extend to three years, or with fine which may extend to Rs. 1 lakh or with both, and with a further fine upto Rs. 20,000/- for each day for a continuing offence. Showing of video films which violate the rules in the manner prescribed in this section will attract imprisonment of not less than three months but which may extend to three years and a fine of not less than Rs. 20,000/- but which may extend to Rs. 1 lakh and a further upto Rs. 20,000/- for each day for a continuing offence. Furthermore, the trial court can direct that the offending film be forfeited to the Government. Under section 7A, any police officer can enter a hall where an offending film is being screened, search the premises and seized the print.   CHAPTER 4: ISSUES WITH CERTIFICATION OF MOVIES The present Cinematograph Act was enacted in the year 1952. Cinema has undergone a radical change since. The medium of cinema, the tools and technology associated with it and even its cherished audience has metamorphosed through time. In Report Of The Committee Of Experts To Examine Issues Of Certification Under the Cinematograph Act, 1952 (28th September 2013, chaired by the Justice Mudgal (Supreme Court), legislations which regulates, certifies and license facets of this ever changing and precocious art form were reviewed and recommendations were given. From the Preliminary Statement of the India’s film industry, the change in name of India’s film censorship body from the “Central Board of Film Censors” to the “Central Board of Film Certification” (“CBFC”) did not improve the film certification process. The Board continues to function as a censorship board and not as a certification board. Several key problems in the workings of the CBFC remain.  These include political appointments of Board members, a vague rating system open to wide interpretation, and an appellate panel of limited jurisdiction. As mentioned by the Mudgal Committee Report of the Committee of Experts: “At almost every public hearing/ interaction held, the Committee was faced with grievances put forth by producers, directors, and Associations etc. that the present procedure for appointment of members of the Advisory panel, their eligibility criteria and the quality of such panel is far from satisfactory. At certain locations, members of such advisory panel lack any form of cinematic understanding, they perceive their role to be that of a Censor Board to cut and chop scenes and in some cases being affiliated to some political, religious or social group, impose without restraint, such political, religious or personal opinions upon content permissible in a film. As by way of a few examples, the Committee came across complaints where panel members had objected to use of words such as “boyfriend” or “kiss” used in a scene or even the uncharitably humorous representation of a political figure etc”18. Report of the Mudgal Committee, Ch. 4, para 13.1. Politically affiliated appointees continue to serve on the CBFC which is the advisory panel that reviews and certifies films.  There are still no criteria for the qualifications necessary to serve on the panel, nor on the overall composition of the Board, nor, even on the mode of appointment of panel members. The present appointments to the panel are largely of persons whose political allegiance is with the party in power. Presently, panel members tend to view any given movie through a political prism with the aim of censoring the movie to satisfy a political end, instead of watching the movie as a movie alone and only making suggestions/recommendations if need be. Thus, framers of further reforms must take the utmost care to ensure that the process of selection and appointment of such panel members is autonomous. The limited classification of films available today is also a major concern. Only four classifications currently exist: “U” (unrestricted public exhibition), “U/A” (unrestricted public exhibition with an endorsement), “A” (suitable for public exhibition restricted to adults) and “S” (suitable for public exhibition restricted to members of any profession or any class of persons). The present categories of classifications are insufficient, given the innumerable subjects, complex themes and content of the movies being produced today. . Another concern is that after certification of a film, religious groups/ individuals/ authorities may demand banning of the film under threat of demonstrations outside theaters. Their sentiments should be eschewed and it should be the responsibility of the State Government to see that there is peaceful screening of the movie after a Certificate is granted to a movie. Under the mandate of the present legislation only the applicant for certification may refer an appeal to the Film Certification Appellate Tribunal (“FCAT”). Therefore any other person aggrieved by the decision of the certification board is only left with the option of moving the High Courts and different High Courts take different stands. The limited jurisdiction of FCAT sometimes even leads to the unscrupulous elements stalling a movie by taking the aid of the High Court’s by filing a Writ Petition (under Article 226 of the Constitution of India). By the time the Court decides the fate of the movie the movie has lost its business and it does not matter to the film maker thereafter whether he succeeds eventually in the Court as the interim order banning the film has already caused irreparable damage to the producer of the banned film. The major difficulty encountered by film makers was the proliferation of fringe elements who for the sake of catching the public eye create trouble for the screening of films on the ground that the film hurts the sentiments of a particular community/group. This is generally done by going to a civil/writ court very close to the release of the film leading to financial and other troubles for the film maker when interim orders restraining the release of the film are passed. Most of the films are financed with a tight repayment schedule and any delay in the release of the film leads to a financial mess for the film producer. Occasionally collusive litigations are filed so as to garner publicity for the film. The vast network of judicial fora i.e. 24 High Courts with writ jurisdiction and vast numbers of civil courts in numerous States give a handle to the litigant to stall a movie to garner publicity or to extract its pound of flesh from the producer of the  film. This is what persuaded the Expert Committee to recommend in the 2013 bill, the enhancement of jurisdiction of the FCAT so as to ensure that there is only one forum where film certification related disputes can be litigated. Guiding Principles in Evaluating a Film On the issue of guidelines, the Committee recognized in its Report: “This aspect was perhaps the most vexed issue, which the Committee encountered. The Committee is of the opinion that there can never be watertight and rigid guidelines for certification of films. Cinema is a form of art and by its inherent character, capable of varied forms of representation and consequently myriad forms of interpretation. The courts have over the years attempted to grapple, with little success one might add, to give precise meanings to terms such as morality, obscenity and excessive violence etc. These are concepts that are incapable of surgically precise definitions and interpretation of such terms will vary from person to person”19. ______________________________________________________________________________ Report of the Mudgal Committee, Ch. 4, para. 14.1. On the issue of licensing of theatres, the committee is of the view that licensing should be shifted from the police authorities to the District Collector/District Administration. Cinema is not per se a matter of law and order and hence not a matter of policing. Therefore its licensing ought not to be handled in such manner- It would be more appropriate that licensing being a matter of administrative regulation be conducted by Administrative/Executive Authorities of the State who would be more suited to implement and execute such licensing procedures. Posters are not being brought within the description of films or filmic material. It is expected that industry will frame transparent and appropriate guidelines to ensure proper vetting and approval of poster and their contents including the display of the type of certificate given to the film. There should be certain rule or guideline made ensuring that all the posters, whether pre-release or post-release of a film should be certified by the Industry mandatorily. The posters as promotional material must conform to the standards and principles applicable to other forms of promotional material. Suitable provision may also bs made in the rules that enable intervention of CBFC in cases where the guidelines are flagrantly violated. On the issue pertaining to requirement of smoking disclaimer, the committee was advised that the matter is pending adjudication before the Hon'ble Supreme court as to the legality and requirement of such disclaimer. The Committee has also been informed that the requirement of such smoking disclaimer is not a requirement of the Ministry of Information and Broadcasting but rather has been required by notifications, circulars and amendment to legislation caused on the behest of the Ministry of Health The Committee has been apprised of the Category of "Approved Films". It has been found out that the Approved film though have to be screened compulsorily are seldom being screened. Therefore the Government should find avenues for screening of such films. There should also be a separate channel for screening the Documentary movies being made all over the Country or some fixed time slot should be provided on existing channels for showing such documentary movies. The Government should also consider defining Water Shed hours for television for screening of particular categories certifications  CONCLUSION To conclude, it can be summed up that Cinema is an artistic expression of ideas, stories and often opinions, sometimes inspired by reality occasionally set to music, designed to enthrall, enchant, or simply to entertain. There are few other mediums of communication that can claim rival levels of pervasive influence and presence in our daily lives. History shows that films have sparked off political debate and threatened governments, heralded social change causing society to deviate from age-old dogma and also sent real life lovers to their death in their misplaced hope of emulating the classic romances. It is perhaps in salute to such impelling powers of persuasion that it is the only form of art, deemed fit to be regulated by an Act of Parliament. In 1975, the Indira Gandhi government imposed censorship of press during The Emergency. It was removed at the end of emergency rule in March 1977. On 26 June 1975, the day after the emergency was imposed, the Bombayedition of The Times of India in its obituary column carried an entry that read, "D.E.M O'Cracy beloved husband of T. Ruth, father of L.I. Bertie, brother of Faith, Hope and Justica expired on 26 June". In 1988 ‘defamation bill’ introduced by Rajiv Gandhi but it was later withdrawn due to strong opposition to it. To highlight is the vital role of Central Board of Film Certification allows regulates the circulation of certain films with sexual content (labelled A-rated), and are shown only in restricted spaces and to be viewed only by people of age 18 and above. India's public television broadcaster, Doordarshan, has aired these films at late-night timeslots. Films, television shows and music videos are prone to scene cuts or even bans, however if any literature is banned, it is not usually for pornographic reasons. The present Cinematograph Act was enacted in the year 1952. Cinema has undergone a radical change since. The medium of cinema, the tools and technology associated with it and even its cherished audience has metamorphosed through time. On the government the task of reviewing and recommending legislation, which shall regulate, certify and license facets of this ever changing and precocious art form, has fallen drastically. 27 | Page