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FREEDOM OF EXPRESSION AND THE INDIAN CINEMA

INTRODUCTION

Since its inception Indian Cinema has been captivating innumerable eyes and has rightfully evolved into one of the chief sources of entertainment. As the Cinema tends to find its root in society; it is no doubt that at times, it bears the fruits of crude reality. Cinema crosses cultural barriers and reflects society through fiction or portrayals of true occurrences. Article 19(1)(a) of the Indian Constitution guarantees the fundamental right to speech and expression to its citizens.[1]  This implies that the right to communicate one’s thoughts by any media, including speech, writing, artistic expression or any other form, is covered under this article. It also encompasses that each citizen has the freedom to express their ideas and opinions for it is a prerequisite to differentiate between the truth and false; it enables active participation of the people in a democracy. Not restricted to just politics, this right also covers the right of a citizen to voice his opinions on economic, social as well as cultural spheres and has now inculcated the right of a filmmaker to communicate their ideas through the medium of a film. However, since the very nature of Article 19(1)(a)[2] is such that it does not come with absolutism, it suggests that the filmmaker’s freedom of expression through their cinematic art may be constrained if the film threatens national security, sovereignty, internal peace or if it is against decency etc.[3]

CINEMATOGRAPH ACT, 1952 AND CENSORSHIP

The certification of cinematograph films for viewing and the control of cinematograph displays are both governed by the Indian Cinematograph Act of 1952. The Central Board of Film Certification (CBFC), sometimes referred to as the Censor Board of India, is a significant organisation in India that regulates film certification.[4] It falls under the Ministry of Information and Broadcasting and a film cannot be screened to the general public until the CBFC has certified it. There is no set procedure for how movies are prohibited in compliance with the law but by the virtue of this Act, a movie won’t be approved if it contains anything that is:

  • Against India’s sovereignty and integrity, as well as the nation’s security and cordial ties with foreign nations.
  • If it’s illegal, indecent or includes defamation of character.

Section 3 (3) (iv)[5] grants the board the power to refuse to approve the film’s exhibition in addition to checking the veracity of its contents. It is now of significance to defining what censorship actually means. It refers to “the altering, silencing, or prohibiting of speech, writing, or another artistic expression that is seen to be contrary to the greater good.”[6] With concrete developments in the entertainment industry of India, be it in terms of quality or quantity, the work of Censor board has only been increased. However, what remains crystal clear is the fact that harmonizing the two—freedom of speech and expression on the one hand, and the limitations put in place on the other is what censorship is all about.

CENSOR PROCECURE AND CERTIFICATIONS

Due to the fact that the influence that audio-visual media may have on people can be more intense than that of the printed word, especially on the susceptible minds of youngsters, certification by the board has become obligatory. Film certification is the result of the process of screening a film, and it involves the decision to either allow or disallow a certain film from being viewed by the general public or to allow it with specific deletions or alterations. The Board, whose non-official members and Chairman are all chosen by the central government, has its operational headquarters in Mumbai.[7] The certification process is governed by the “Cinematograph Rules, 1952” and the directives issued by the Central Government.

There are four kinds of certifications:

  • U- Unrestricted Public Exhibition
  • U/A- Unrestricted public exhibition required parental guidelines for children below the age of 12
  • A- restricted to adult audiences
  • S- Restricted to any special class of persons[8]

JUDICIAL RULINGS ON CENSORSHIP

  1. A. ABBAS v. UNION OF INDIA (1971)

The Supreme Court of India (SC) maintained the limitations imposed on films by the virtue of the “Cinematograph Act, 1952” and dismissed this petition that questioned the authority of this Act to put such restraints. A Tale of Four Cities, a short film made by the petitioner, highlighted the modern realities of living in metropolitan cities. The lavish lifestyles of the wealthy were put in juxtaposition with the poverty depicted in the movie. For unrestricted viewing, he requested a U certificate from the Censor Board. The Court decided that the censorship came within the bounds of acceptable restrictions on free expression and that the Act was sufficiently clear to preclude arbitrary use of the powers granted by it. The Court also found that the right to free speech was not unfettered, and that reasonable limits on artistic expressions might thus be imposed.[9] A motion picture is able to evoke emotions more intensely than any other work of art, according to SC, hence they must be treated differently from other kinds of art and expression. It did, however, also issue a warning that it ought to be done for the good of society.

  1. RANGARAJAN v. P. JAGJIVAN RAM (1989)

The SC held that the state cannot use the possibility of violence to forbid the exhibition of a movie. It upheld the fundamental right to freedom of expression by overturning the Madras High Court’s decision.[10] In this case, the High Court’s Division Bench emphasised the potential issue with public order that would result from the screening of the movie that dealt with the issue of continued seat reservations under Articles 15(4) and 16(4) of the Constitution. The Delhi High Court, in the case of Bata India Ltd. v. A.M Turaz and Ors (2012) reiterated how films possess the capacity to influence the human psyche as decided in the Rangarajan Case.[11]

CONTROVERSIES

Mentioned below are a few examples of movies which faced the issue of being in a tussle with the Board:

  1. Anand Patwardhan’s “War and Peace (2002)”, depicted nuclear tests conducted by Pakistan and India, as well as the nationalist sentiments that followed. The Censor Board demanded 21 cuts before the film’s exhibition. A dissatisfied Patwardhan took the matter to the court and a year later, the Bombay HC ordered the film to release without a single cut.[12] The Court was thus, successful in weighing between the right to freedom of expression of the filmmaker and the power of the CBFC. After a thorough examination of the facts and the content of the film, it ruled in favour of what seemed correct.
  2. “Udta Punjab (2016)” which showcased the rampant drug usage problem and the disoriented youth of Punjab was initially not only met with the refusal to get a certification but also encountered a 13-pointer guideline from the CBFC which asked the makers to change a few scenes as well as shortened the movie to a great extent by suggesting 94 cuts![13]This action by the CBFC started a real hue and cry. The young generation took to their social media handles to ask a fundamental question, “if adults can make a film about a pressing issue in the country, then adults also have the right to choose between watching that particular film. The CBFC should not take away that choice when it clearly holds the power to grant the ‘A’ certificate and facilitate the smooth release of the film.” The filmmakers filed an appeal in the Bombay High Court, and the film was cleared with only one cut.

CONCLUSION

Censorship, ultimately is a careful process of making sure films are being catered to the audience the way filmmakers visioned and at the same time, it is an act of vigilance that its contents do not go beyond the restrictions laid down in Article 19(2) of the Constitution[14]. Censors throughout the world are primarily concerned with the depiction of violence and sex. The way the State wants sex to be depicted reflects the sort of sexuality that the State believes should exist. The sketching of violence and what is obscene is highly subjective. The Indian Constitution places freedom of expression besides the Censor Board and a tactful balance must be created between the two in order to ensure congruity between the rights of a citizen and upholding the nation’s interest.

Author(s) Name: Mrinalini (National Law University, Odisha)

References:

[1] Constitution of India 1950, art 19(1)(a)

[2] Ibid

[3] Constitution of India 1950, art 19(2)

[4] Cinematograph Act 1952

[5] Indian Cinematograph Act 1952, s 3 (3)(iv)

[6] ‘Censorship’ ( Britannica) <https://www.britannica.com/topic/censorship>  accessed 07 December 2022

[7] The Cinematograph (Certification) Rules 1983

[8] ‘Certification’ (CBFC India) <https://www.cbfcindia.gov.in/main/certification.html>   accessed 07 December 2022

[9] K.A. Abbas v UOI (1971) AIR 481

[10] S. Rangarajan and Ors v P. Jagjivan Ram (1989) 2 SCC 574

[11] Bata India Ltd. v A.M Turaz and Ors (2012) SCC OnLine Del 5387

[12]Anand Patwardhan, ‘Censor Board’s War on ‘WAR AND PEACE’ (Patwardhan, 14 June 2002) <http://patwardhan.com/?page_id=592>  accessed 08 December 2022

[13]Ashok Dhamija , ‘Udta Punjab – Legal Position on Censorship’ (Tilak Marg, 09 June 2016) <https://tilakmarg.com/opinion/udta-punjab-legal-position-on-censorship/>  accessed 08 December2022

[14]Constitution of India 1950, art 19(2)