CENSORSHIP

BY RISHMA BAL
BA LL.B, LL.M
Cinema is an artistic expression of ideas, stories and often opinions, sometimes
inspired by reality occasionally set to music, designed to enthral, enchant, or
simply to entertain. It has been a source of introspection where in it has brought
or tended to bring a positive change in the society. Cinema is part of expression
of Freedom of Speech and Expression guaranteed under Article 19(1)(a) of
Indian Constitution. Cinema or motion picture has been defined as the art of
colourful moving images. Since the days of its inception, cinema has been one
of the important tools of expression of ideas. It is a miniature of the societal
values and prevailing trends of the society. A source of ideas and values, it has
served as a carrier of transformation and revolution. It provides for a platform
where in the society can crave for introspection for a positive change. As a
vehement and a potent tool of expression of free idea and thoughts, free cinema
can be seen as a touchstone of freedom of expression.

CINEMA AND LEGAL FRAMEWORK

Freedom of speech and expression is one of the most sacrosanct rights

guaranteed under the Indian Constitution. It is the concept of being able to
speak freely. As a cinema is art part of expression therefore it is part and parcel
of Freedom of Speech and Expression. As no rights are absolute some
restrictions are always there. Similarly Freedom of Speech and Expression is
not absolute Article 19(2) impose reasonable restrictions upon it same
restrictions are applicable on cinema also.

CINEMATOGRAPH ACT, 1952

Cinema in India is regulated by Cinematograph Act, 1952. The Act makes the
provision for- “certification of cinematograph films for exhibition and for
regulating exhibitions by means of cinematographs” Section 3 of the Act
makes the provision for establishment of regulatory Board (Board of Film
Certification) whose role is to certify film for public exhibition.

OBJECTIVE OF ACT

1. To ensure healthy entertainment, recreation and education.

 2. To certify film for public exhibition.
3. To make certification process transparent and responsible
4. To create awareness among Advisory Penal, Media, Film Makers about
guideline for certification and current trends in film.

***** VALIDITY OF ACT

K.A ABBAS V/S UNION OF INDIA- In this Constitutionality validity of

Act was challenged as film are categorized into different categories and this
amount to infringement of Fundamental Right under Article 14, 19(1)(a).
The Supreme Court upheld the validity of act and said pre-censorship of
film is justified under Article 19(2). It was held that film had to be treated
separately from other forms of arts and expression because motion pictures
are able to stir the emotion more deeply than any other product of art.
Classification is valid.

WORKING PROCEDURE OF BOARD

When any application is made to Board u/s4 of the Act for certification, Board
after examining film grant certificate accordingly u/s5

****

Any person aggrieved by order of Board can make the application in form of
Petition to Appellate Tribunal within 30 days from date of order of Board.
(Section 5C of Act)

GROUND FOR REFUSING CERTIFICATION (SECTION 5B OF ACT)-

1. 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 interests of 1[the sovereignty and integrity of India] the security of the State,
friendly relations with foreign States, public order, decency or morality, or
involves defamation or contempt of court or is likely to incite the commission
of any offence.(SECTION 5B(1))

2. Subject to the provisions contained in sub-section (1), the Central 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. (SECTION 5B(2))
WHETHER CENSORSHIP IS PERMITTED
In different countries, films are censored to monitor for varying levels of social
and political issues, the exhibition of which can be connoted as disturbing for
the people. Violence, sexual content, abusive language, drug use, abusive
content, revolutionary content, and human rights violations are common factors
that come under the censorship.
In India, under the Cinematograph Act of 1952, there is a very little
scope of censorship. Only if the motion picture or the part/parts of motion
picture stand in violation of section 5(B) of the Act can the Board ask the
applicant to review and modify the objected part of the movie.
However, the powers granted to the Board under the Act has been
widely misused as on a number of occasions it has gone beyond its statutory
powers to over regulate cinema which clearly stands in violation of the
fundamental spirit of freedom of thought and expression. It is vital to note that
the power of the Board under the Act extends only to regulation of the film
through certification. In many cases, the stand taken by the Central Board of
Film Certification has been highly questionable and one attacking the very base
of expression of thoughts and ideas.

WHY CENSORSHIP OF FILMS, NOT THE PRESS

Article 19 (1) (a) of the Indian Constitution guarantees to all the citizens the
right to 'freedom of speech and expression' and this freedom includes the right
to express one's own views and opinions at any issue through any medium he
likes. This right also includes the freedom of the press or the freedom of the
communication and the right to propagate or publish opinion. Despite the
restrictions, in our country the citizens and the press in real practice enjoy this
freedom to a large extent because in a democratic set up, such freedoms are
necessary and quite helpful for the proper functioning of the democratic
process.

Freedom of press certainly enjoys importance in our democratic process as it

seeks to advance public opinion and matters of public interest by publishing it
which enables them to form a responsible judgment. Supreme Court through
various judgments also upheld the dignity of the press and freedom it enjoys by
nullifying the attempts to put a curb on it. In all below cases Supreme Court
held restrictions amounts to encroachment of Freedom of Speech and
Expression guaranteed to Press and opposed to Article 19 (1) (a).

 Imposition of pre-censorship on a newspaper in Brij Bhusan case,

  Prohibiting the newspaper from publishing its own views as in Virendra
case,
 Imposing a ban on the entry of newspapers and its circulation as in Sakal
Papers case and in Romesh Thapper case,
 Trying to put restrictions in some way or other in Express Newspaper
case and the Bennett and Coleman case.

In all the above mentioned cases the Supreme Court has

maintained that the freedom of the press cannot be taken away and it would not
be legitimate to subject the press to the laws which take away or abridge the
freedom of speech and expression.

So far as censorship of films is considered, censorship is required

because of its mass appeal, the way the presentation and above all, the impact it
leaves in the minds of the persons both young and adult. Expression of one's
own idea, through the medium he likes is permissible under Article 19 (1) (a) of
our Constitution. The medium is vast. But using the films as a medium of
expression should be treated differently because this medium is not the same as
reading a book or reading a newspaper or magazine. So in the larger interest of
the community and the country restrictions as envisaged in Article 19(2) can be
imposed. The framers of our Constitution deemed it essential to permit such
reasonable restriction as they intended to strike a proper balance between the
liberty guaranteed and the social interests specified in Article 19 (2).

JUDICIAL PRONOUNCEMENTS AND CENSORSHIP

Over the years, the Supreme Court and the High Courts through various
judgments have contributed immensely in safeguarding the rights of the people
of India. Right of free speech and expression through motion pictures, is no
exception.

1. For the first time before the Supreme Court the constitutionality of
censorship under the 1952 Act along with the Rules framed under it was
challenged in the case of K.A. Abbas v. Union of India- The Supreme
Court upheld the constitutionality within the ambit of Article 19(2) of the
Constitution and added that films have to be treated separately from other
forms of art and expression because a motion picture is "able to stir up
emotions more deeply than any other product of art"
2. One of the landmark case, where in the Supreme Court protected the
freedom of expression is that of Rangarajan v. P.Jagjivan Ram. 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 inability to
handle the hostile audience problem”.

3. There is no separate censorship required for television serials or films as

they are telecasted only if they are certified by the Board. An incident
came up concerning a television serial 'Tamas' (Darkness) which
depicted the Hindu-Muslim and Sikh-Muslim tension before the partition
of India. Appeal was preferred before the Supreme Court against the
judgment of Bombay High Court (which allowed the screening of the
serial) in Ramesh v/s Union of India to restrain the screening of the
serial as it was violative of Section 5B of the 1952 Act. The Supreme
Court affirmed the High Court decision and dismissed the petition.
Commenting on the reaction of the average men, the Court held that the
average person would learn from the mistakes of the past and perhaps not
commit those mistakes again. They concurred with the High Court that
"... Illiterates are not devoid of common sense ... and ... awareness in
proper light is a first step towards that realization".

4. Again Bandit Queen case, the Supreme Court considering the censorship
issue upheld the freedom of expression through films and removed the
restrictions imposed on the ground of obscenity. In this case, the
petitioner filed a petition asking the court to cancel the certificate of
exhibition for screening the film "Bandit Queen" and also to restrain its
exhibition in India. It was contended in the petition that the depiction of
 the life story of Phoolan Devi in this film was "abhorrent and
unconscionable and a slur on the womanhood of India." The way the rape
scenes were depicted and the manner in which such scenes were
picturised was also questioned and it was also contended that the
depiction of Gujjar community in those scenes amounts to moral
depravity of that particular community. The Delhi High Court quashed
the order of the Tribunal granting 'A' certificate to the film on the ground
that the rape scenes were obscene. When the matter went to the Supreme
Court by way of appeal, allowing the appeal, the Supreme Court reversed
the decision of the High Court and upheld the decision of the Tribunal in
granting the 'A' certificate to be valid. The court was of the opinion that:
"The film must be judged in its entirety from the point of overall impact.
Where theme of the film is to condemn degradation, violence and rape on
women, scenes of nudity and rape and use of expletives to advance the
message intended by the film by arousing a sense of revulsion against the
perpetrators and pity for the victim is permissible."

5. Another Case where the judiciary stepped in and whipped the Central
Board of Film Certification on its overreach is that of the controversy
surrounding the film Udta Punjab. In this case, the Board refused to
certify the film Udta Punjab which is based on the drug menace
prevailing in the state of Punjab. In addition to its refusal to certify, the
board suggested almost 13 cuts in the movie as a mandatory measure to
seek certification. However on appeal by the filmmaker, the Bombay
High Court criticised the Central Board of Film Certification for its
conduct and poor way of handling the issue. The Court made a very
important observation that the Board is not necessarily empowered to
censor films. The word censor is not found in the Cinematograph Act.
The board can make changes in the film but this power must be exercised
in consonance with Constitutional Guarantee and Supreme Court orders.
It can be rightly believed that the verdict of the Court in this case will
definitely serve as a milestone which can pave the way for the long
pending reformation of the Certification Board. It can be seen that the
Board has wrongly widened its power which actually meant to be
restricted to certification of films for exhibition only, to now include
within it the power to censor also. Such an attitude of the Board, which
 many a time is politically motivated, can put the rights of the citizen in
danger.

SHORTCOMINGS

The Censor Board is large expert body for grant of certification. So its decision
must be given weight. But its role and position is confusing. The Statute
provision for provide for construction of Advisory Plan who can make
recommendation to Board.

However in case of Board Rang De Basanti Defence Minister and

People from Forces and in case of Padmavat Rajput Community were invited
for their advice whether film should be exhibited or what alteration should take
place.

INDIANS MOVIES BANNED IN INDIA BUT RELEASED OVER SEA

1. The CBFC banned the film Gulabi Aaina (The Pink Mirror), a film on
Indian transsexuals produced and directed by Sridhar Rangayan. The
censor board cited that the film was "vulgar and offensive". The
filmmaker appealed twice again unsuccessfully. The film still
remains banned in India, but has screened at numerous festivals all over
the world and won awards. The critics have applauded it for its "sensitive
and touching portrayal of marginalised community".

2. Paanch: The censor board ran a knife on it for having explicit profanity,
drug abuse etc. But nevertheless, it brought forth the hidden reality of
drug addicted Indian youth. The film was banned in India but highly
appreciated in Filmfest Hamburg in 2003, Asian’s Cinefan Festival of
Asian and Arab Cinema in 2005 and the Indian Film Festival of Los
Angeles in 2006.

3. Unfreedom: The film deals with a sensitive issue of an Islamic

fundamentalist kidnapping an Islamic liberal in NY followed by
kidnapping a lesbian in Delhi and her bi-sexual lover. The plot summary
obviously didn’t impress CBFC and got banned. The film won accolades
however in America, Portland Film Fest and Chelsea Film Festival.
 4. Black Friday: Anurag Kashyap shares a chalk and cheese relationship
with CBFC ever since they banned Black Friday in India. It dealt with the
extremely sensitive issue of 1993 Mumbai Blasts. It was however
nominated for Best Film at the Locarno International Film Festival and
won the Grand Jury prize at the Indian Film Festival, Los Angeles.

5. Lipstick under my Burkha: The ban on this movie rather negatively

publicized it and attracted the international audience towards it more. The
movie deals the matter of how Indian women try to break free societal
norms and fight to be considered as humans with feelings too. It won the
prestigious Spirit of Asia Prize and the Oxfam Award for Best Film on
Gender Equality. Also, at the Tokyo and Mumbai film festivals it reigned
supreme.

THE BANNING OF FILMS ALSO HAS SOME OTHER

IMPLICATIONS.

While a film is banned, it does not only affect the freedom of speech and
expression of the director or producer, it affects the economic aspects of many
people which are also guaranteed under Article 19(1)(g) of the Constitution.
Film making, distribution and screening are essential aspects of films business,
if the film is banned, it affect all those aspects which defiantly falls under
Article 19(1)(g)? But who will be responsible for it? Again, in many cases
violent groups ransack theatres in protest against the screening of certain films.
It definitely affects the property of the theatre hall owners [43]. But the right to
property is inviolable under Article 300(A) of the Constitution without the
authority of law. Hence, to allow one’s properties to be destroyed by some
group of people is a clear deprivation of the right to property guaranteed by the
Constitution. So finally in such cases, the State fails in its duty to secure its
citizens’ of various constitutional and legal rights.

Thus, the above discussion makes it obvious that the bans on the movies under
different circumstances have not been imposed on valid constitutional grounds
but to serve the interests of different groups whether social, religious or
political. Under no circumstances, the bans of aforementioned nature can be
justified.
ADDITION OF SUBTITLES AFTER GETTING CERTIFICATION

Bombay High Court on 28th Sept 2019 granted relief to Indian Motion Pictures
Association (IMPA) and held that notice issued by the Central Board for Film
Certification (CBFC) was not sustainable. Division Bench held that subtitles
can be added even after film is certified as long as an endorsement is obtained
from CBFC.

NEED FOR REFORMATION OF CERTIFICATION BOARD

An urgent reform of the Central Board of Film Certification is a paramount task.

Various committees had been set up by the government in the recent past with
the aim of suggesting measures to bring in reformation in the Boards. However
little has been done to implement the suggestions forwarded by these
committees.

While examining a film or causing a film to be examined for certification, the

Board should be guided by the following principles:

1. The medium of the film should remain responsible and sensitive to the
values and standards of society.
2. Artistic expression and creative freedom should not unduly be curbed and
certification should be responsive to social change
3. The film should be examined in the light of the period depicted in the
film, context, containing theme and people to which the film relates
4. film should not be certified for exhibition if in the opinion of the Board,
the film or any part of it is against the interest of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign
States, public order, decency or morality, or involves defamation or
contempt of court or is likely to incite the commission of any offence.

Another committee under the head of the renowned film maker Shyam Benegal
was setup by the Government of India in January 2016 to lay down norms for
film certification.

1. Certification Board should restrict its domain only to certification of films

in order to categorize the suitability of the film to the audience groups on
the basis of age and maturity.
 2. The Committee also suggested that the role of the Chairman of the
Certification Board should be curtailed to be of advisory nature only. The
Committee also suggested minimising the size of the Board keeping in
mind its limited functions.

CONCLUSION

Cinema being an important instrument of expression of ideas and free thoughts

must remain unrestricted from any kind of censorship. Restriction of any kind
must not infringe upon the basic human right of expressing one’s view in the
community of civilized societies. However at the same time one must keep in
mind the practical realities of the society in which such ideas are broadcasted.
The peace and security of the society should not be disturbed in the process of
expression of one’s thoughts. Balance must be maintained between the right of
expression and the duty to maintain peace in the society.