Restrictions on Rights of Film-Makers in India with Respect to Censorship: Are they ‘Reasonable’? – A Critical Study by Tejas Hinder  

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Abstract

Freedom of speech and expression simply means that a person has a fundamental right to express his/her views through any means of communication. Although this is a fundamental freedom, it is not absolute. The state can put reasonable restrictions to curb the given right under Art. 19(2). There is no express clause that says films are covered under ‘speech and expression’ but with time various decisions of the Indian courts have made it clear that a person’s right of speech and expression includes making a film (obviously until it does not fall within the restrictions mentioned in clause (2) of A-19). Many movies in India have been subjected to censorship restrictions based on obscenity, violence, sexual content, etc. But many have been restricted or ‘banned’ for telling the truth which according to some people could disturb public order or people’s sentiments.

Thus, what is the basis of deciding whether these movies could disturb the public order? Why cannot State be criticized through mediums which are lawful in nature?

The paper tries to analyze different cases of various movies which have been banned on grounds of restrictions in Article 19(2) of the Constitution, the arbitrariness of the Censor Board, and the illegal means used by various political parties so as to curb the freedom of speech and expression of Indian citizens. The paper shall further examine the questions of sufficiency of judicial decisions given till date in this regard to lay down specific grounds on the basis of which restrictions could be imposed and the existence of an element of arbitrariness with the CBFC, by giving them the right to impose restrictions by censoring in the absence of fixing or imposing certain limits beyond which content may be treated as against public order, morality, and health.

Introduction

Bollywood i.e. the Indian film industry is arguably the world’s largest cinematic industry[1]. Most of the Indian population goes to theaters or cinema halls to enjoy movies. It is also a fact that with such a large population, the films which are screened are made for commercial purposes. There are very few film-makers who have dared to show the ground reality of India through the medium of cinema. In India, if someone speaks or publishes or makes any film involving any sensitive issue, it immediately feels the wrath of either the big political parties or the Censor Board.

This has been going on for a long period and even today we have cases of film ban like in the recent cases of the films ‘Udta Punjab’ and ‘Padmaavat’.  Other movies that faced bans include ‘Black Friday’, ‘Water’, ‘Sins’, ‘Deshdrohi’ and many more. Every now and then a film is in controversy in the country either in some or a large number of states and the makers of the films have to fight the war for a long time and wait for the verdict of the Honorable courts to get their films up and running. But this long war raises a fundamental question i.e. to what extent can the right to freedom of speech and expression under Articles 19(1)(a) and 19(2)  of the Indian Constitution be restricted.

Freedom of speech and expression simply means that a person has a fundamental right to express his/her views through any means of communication. Although this is a fundamental freedom, it is not absolute. The state can put reasonable restrictions to curb the given right under Art.19(2). There is no express clause that says films are covered under ‘speech and expression’ but with time various decisions of the Indian courts have made it clear that a person’s right of speech and expression includes making a film (obviously until it does not fall within the restrictions mentioned in clause (2) of A-19). Many movies in India have been subjected to censorship restrictions on the basis of obscenity, violence, sexual content, etc. But many have been restricted or ‘banned’ for telling the truth which according to some people could disturb public order or people’s sentiments.

Thus, what is the basis of deciding whether these movies could disturb the public order? Why cannot State be criticized through mediums which are lawful in nature? The paper tries to analyze different cases of various movies which have been banned on grounds of restrictions in Article 19(2) of the Constitution, the arbitrariness of the Censor Board, and the illegal means used by various political parties so as to curb the freedom of speech and expression of Indian citizens.

History of freedom of speech and expression

“Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers.[2]

Thus, freedom of speech and expression is a basic human right. The Indian Constitution makers also recognized and therefore included the same as a fundamental right.

“Article 19: (1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practice any profession, or to carry on any occupation, trade or business”[3]

All citizens since the making of the Constitution have been guaranteed certain liberties that revolve around their individuality. Even before the Constitution, at the time of the struggle for independence, many leaders emphasized on the freedom to express one’s views through speech and Press.[4]

One must refer to the Constitutional Assembly Debates so as to understand the significance of this freedom which was ultimately incorporated as a Fundamental Right. The Fundamental Rights Sub-Committee’s[5] members did not have many differences in their opinions. The only issue that was debated was up to what extent the liberty of an individual can be curbed so as to ensure peace and order in the State. As soon as India got independence, there was political unrest. Keeping this in mind, the fundamental freedoms guaranteed under Article-19 came with some ‘reasonable restrictions’ i.e.

“Article 19(2): Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security 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 offense.”[6]

Also, the right is automatically suspended at the time of the proclamation of national emergency.[7]

K.M. Munshi, who was a member of the Drafting Committee argued against the inclusion of ‘sedition’ as one of the grounds under A-13(2) (which later became 19(2)) and said : ‘As a matter of fact the essence of Democracy is criticism of Government. The party system which necessarily involves the advocacy of replacement of one Government by another is its only bulwark; the advocacy of different systems of government should be welcome because that gives vitality to a democracy.’[8]

Sedition was not accepted as a ground of reasonable restriction. It was argued by some members that if there are restrictions on these rights, then they would be subjected only to the permission or discretion of the legislature. How can it be considered freedom then?

But as experience speaks, complete freedom leads to chaos. Freedom within its whole concept includes limitations too. And the unrest in the State already mentioned above meant that it was necessary for the State to limit the individual’s freedoms in the interests of its own and society. These restrictions were not ‘any’ restrictions but ‘reasonable’ restrictions. So, the State could not impose restrictions according to its whims and fancies. There had to be grounds to justify the imposing of it. So, the views of some members that vouched for complete freedom under A-13 (now A-19)) was defeated in the Constituent Assembly and ‘reasonable restrictions’ were welcomed

The Censorship Law in India

In India, the Constitution specifically mentions that the freedom of speech and expression is not absolute and is subject to ‘reasonable restrictions’ under Art. 19(2). For laws related to censorship, the Parliament has the power by virtue of Entry 60 (Union List/List-I) of the VIIth Schedule. The States have this power under Entry 33 (State List/List-II). The State legislation is subject to the central legislations’ provisions. The law which regulates the concerned field includes the Cinematograph Act of 1952 and Cinematograph (Certification) Rules of 1983. The aim of the Act of 1952 was to provide for the certificates to the films up for exhibition and its regulation.

This Act provides for the constitution of a Censor Board by the Central Government, which can have members between 12 and 25. The purpose of the Board is to sanction films for their exhibition in public. When the Board examines a film, it has the following options with respect to that particular film:

  1. –    “Sanction the film for restricted or unrestricted public exhibition;
  2. –    Direct to carry out necessary modifications;
  3. –    Refuse to sanction the film for public exhibition”[9]

The provision in the Cinematographs Act, 1952 in which restrictions with respect to the exhibition in public are laid down is Section-5 B(1). The provision is made in relation to Article 19(2) of the Constitution of India.

The Central Government has the power to make guidelines in relation to the same matter by virtue of Section-5 B (2). There is an opportunity given to a party in order to express or represent his/her opinions on a particular matter before the Censor Board. Then only, the Board gives its decision as far as censorship is concerned. The appeals under 1952 were to be made to the Central Government but after the 1974 Amendment of the Act, the power was given in the hands of FCAT i.e. Film Certification Appellate Tribunal. The members are the Chairman and others (maximum four).  The Chairman shall be retired or qualified to become a Judge of a High Court. Other members, in the opinion of the Central Government, shall be qualified to judge the effect of films on the public.[10]

In 1981, there was another Amendment in the Act which reduced the powers vested in the FCAT to a large extent by virtue of Section-6(1) which gives the power of revision to the Central Government in regard to any proceeding before FCAT or the Censor Board (except in pending cases of appeal before FCAT).

The public exhibition of a film can be suspended in any Union Territory (whole or part of it), or a district of any State by the Central Government or any Local Authority in a likely case of breach of peace in that particular area. This power is laid down under Section-13 of the Cinematograph Act of 1952.  The 1952 Act also provides for the establishment of Advisory panels by the Central Government at regional offices consisting of persons qualified to judge the effect of the films on the public.[11]

Section 8 of the 1952 Act lays down the Rules related to the procedural matters and details of different Committees and the Board. The Board has the duty under Rule 11 of assessing reactions of the public to films, which may be either done by conducting surveys (national or local) or having seminars or symposium which would include different people of the film industry and film critics.

The Role of the Judiciary

The High Courts and the Apex Court of India by way of many judgments over the time have safeguarded the rights of the country’s people. The right to freedom of speech and expressions is also included in the list of several rights guaranteed by the Constitution of India.

  • The Supreme Court dealt with the issue of the constitutionality of censorship of the Cinematograph Act, 1952 for the first time in A. Abbas v. Union of India[12] in which the Apex Court decided in favor of the 1952 Act and upheld its constitutionality giving reasons that it falls under the ambit of  ‘reasonable restrictions’ under Article-19(2). The reasoning given by the Court was that films are a different class of art or expression because it can affect the emotions of people deeper than any other form.  At the same time the Court cautioned that “If the regulations venture into something which goes beyond this legitimate opening to restrictions, they can be questioned on the ground that legitimate power is being abused.”[13]
  • Another landmark case in this regard is of Rangarajan v. P. Jagjivan Ram[14] , In this case, an appeal was filed by the makers of the National Award-winning film ‘Ore Oru Gramathile’ in the Apex Court against the decision of the High Court of Madras of revoking the ‘U-Certificate’. The film talked about the sufferings of Brahmins in Tamil Nadu due to reservations in jobs, while also using some words against Dr. Ambedkar. The decision of the High Court was overruled by the Supreme Court thus upholding the right to freedom of speech and expression, saying that a film is the best and most important source of discussing issues related to society and the public in general. Thus, the maker has the right to express his/her views on a particular subject even if others or State don’t approve of it. To put it in simple words, open discussion is an integral part of the democratic structure and it cannot be taken away by anyone arbitrarily.

Court also held in the same case that the grounds mentioned under A-19 (2) must have direct nexus with the expression. It cannot be out of the ordinary and it is the State’s duty to make sure that the freedom of speech and expression is protected and it must be able to handle a hostile situation.

  • In Life Insurance Corporation of India v. Prof. Manubhai D. Shah[15], the Supreme Court held that criticizing the State Government cannot be a reason to not allow to make a public exhibition of the film. (a non-feature film on Bhopal Gas Disaster).
  • In the case of the controversial movie ‘The Da Vinci Code’, a writ petition filed by the AICWA (All India Christians Welfare Association) was rejected by the Apex Court saying that the movie had been running in various Christian countries and there was no point of any objection. Some states that had banned the movie were found to be irrational and the High Courts in those respective states imposed costs on those Governments and quashed the bans, upholding the right of speech and expression.
  • In Sree Raghavendra Films v. Government of Andhra Pradesh[16], the screening of film ‘Bombay’ was suspended (even after given the go-ahead by the Censor Board) under S-8(1) of the A.P. Cinemas Regulation Act of 1955. The reasons given were that it could hurt the sentiments of some particular groups. It was found by the Court the order passed by the authorities was irrational and arbitrary because the movie was not watched by the ones who passed an order against its exhibition. Thereby, the Court quashed the order.

The Censorship Detection

As discussed above, there are many cases through which the judiciary has protected the fundamental right under A-19(1)(a). But there are instances where the Honourable Judiciary has diluted principles established by itself.

States have the obligation to be ready for any hostile situation as laid down in the Rangarajan case already discussed but in cases of many movies such as ‘Deshdrohi’, ‘Black Friday’, ‘Fanna’, ‘Chand Bujh Gaya’ etc. In these cases, the owners of the theaters were threatened against the screening of the films. This shows the failure on the part of the States and many times the Censor Board as can be seen in the recent cases of ‘Udta Punjab’ and ‘Padmaavat’.

In our democratic India, the right to communicate one’s views is of great importance even if it is not in consensus of the majority of people. But even if there is a right, there is no escape from controversies and India and the makers or the authors have to knock on the doors of the courts to save their rights. In the name of ‘public interest’, many creators face the wrath of States and their work is banned arbitrarily, as happened in the ‘Da Vinci’ case.

Thus, the question is that whether the ‘reasonable restrictions’ under A-19(2) serving the purpose of pubic good or it is placed on a maker or author for the benefit of the powerful groups and their interests. So the idea of censorship is used in a negative sense that the State fails to come up with a solution, and then whose interests are they protecting by censoring movies?

The Punjab & Haryana High Court ended the tussle between Udta Punjab makers and the Censor Board by deciding in favor of the Udta Punjab team saying that the movie does not show Punjab in a bad light and is not promoting drug abuse.[17]

The outrage of Rajputs before the opening of the movie ‘Padmaavat’ was again a very big controversial issue which was based on just a rumor about a particular scene which was enough to spark the violent headed people of this country. Again, the Padmaavat was changed from Padmaavati because of all the chaos caused by a community and some of its organizations.[18]

The Rules in the Act also have loopholes in it. The Rules say specifically about Advisory Panels which consists of experts from those particular fields and their opinion is binding. Then what is the use of the Statutory Expert Body? Also, the members of the Board are appointed by the Government and thus they are controlled too. Therefore, the Board’s decision is not the ultimate one and the last say is always of either the Central or the State Governments.

Allegedly, the Board has been criticized to decide in favor of Hindus which can be reflected in approving the movie ‘Gadar’ which had many remarks against the Muslim community. Was that not enough to disturb the public order? The Board did not think so.

The ‘unreasonable restrictions’ in the name of ‘reasonable restrictions’ do not only violate Article-19(1) (a) but it negatively affects Article-19(1)(g) as well in the economic aspects of making, distributing and screening.

The right to property save by authority of law under Article-300 A is also violated as was seen in cases of ‘The Da Vinci Code’ in Andhra Pradesh and ‘Padmaavat’ in Rajasthan and Gujarat. It is a clear failure of the State to not act in such instances and let the properties of the theatre owners get destroyed by certain groups.

Conclusion

If a person is hurt by an idea of another particularly in the case of films, he always has the option of not going to the theaters and not watches the movie. As the courts have time and again said that ‘Illiterates cannot be considered devoid of common sense’, meaning thereby that everyone does things according to his liking. If he does not want to do that thing, he should not.

The Censor Board in India for Film Certification is a mere puppet controlled by the Executive. It has to be more autonomous. Because in India, even if the Board gives a green signal to the film, State Governments have still banned them which makes the process indeed arbitrary. Thus, there is a need for a new law. The power delegated to the States should be made limited and when imposing a ban on a movie, a statement of reasons should be given to the Central authority.

The idea of putting restrictions to Article – 19(1) by our Constitutional makers was for a purpose but there must be a limit drawn with respect to the same so that the artists, creators, etc. of our country can exercise their right to speech and expression freely, meaning thereby, that the test for imposing restrictions should be hard to pass if arbitrariness is to be eliminated.

[1] Central Board for Film Certification; Available at: http://www.cbfcindia.tn.nic.in.

[2]Article-19, Universal Declaration of Human Rights (UDHR), 1948.

[3] Article 19(1), Constitution of India.

[4] Sarkar, Subhradipta; ‘RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY’.

[5] Boyd, Bruce Micheal; ‘Film Censorship in India: A “Reasonable Restriction” on the Freedom of Speech and Expression’. (October-December 1972), pp. 501-561.

[6] Article-19(2), Constitution of India.

[7] National Emergency, Article-352, Constitution of India.

[8] Opinion of Munshi, K.M.; Member of Drafting Committee and the Fundamental Rights Sub-Committee of Constitution of India.

[9] Central Board of Film Certification Guidelines, http://www.cbfcindia.tn.nic.in/guidelinespage1.htm.

[10] Section – 5-D, Cinematograph Act of 1952.

[11] Section-5, Cinematograph Act of 1952.

[12] K.A. Abbas v. Union of India , A.I.R. 1971 S.C. 481.

[13] Id.

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

[15] Life Insurance Corporation of India v. Prof. Manubhai D. Shah, A.I.R. 1993 S.C. 171.

[16] 1995 (2) A.L.D. 81.

[17] All you need to know about the ‘Udta Punjab’ row, https://www.thehindu.com/features/cinema/All-you-need-to-know-about-the-Udta-Punjab-row/article14416570.ece (Jun. 10, 2016).

[18] Padmaavat: India clashes as controversial film opens, https://www.bbc.com/news/world-asia-india-42815702 (25 Jan., 2018).

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