Author: Radha B Narayanan, III year of B.A.,LL.B(Hons.) From PES University, Faculty of Law.
Co-author - 1: Pragathi U Bhat, III year of B.A.,LL.B(Hons.) From PES University, Faculty of Law.
Co-author -2: Nidhi N Anand, III year of B.A.,LL.B(Hons.) From PES University, Faculty of Law.
The expression of one's perceptions, values, and emotions is said to transpire through art. Films are a cogent means of expression because they appeal to the people by combining the auditory and visual senses. Films frequently contain the creators' viewpoints and beliefs. They have the ability to penetrate the viewer's mind and alter his perspective.
The freedom of speech and expression of Indian citizens is guaranteed by Article 19(1)(a) of the Constitution1. This constitutional clause embraces all artistic expression, including that of films. The freedom ensured by Article 19(1)(a) is bridled by the restrictions that can be imposed by the State to protect the integrity of the nation, the security of the nation, foreign relations, public order, decency and morality or to prevent contempt of court or defamation2. In India, the censorship of cinema has its origins in the ability to impose restrictions on the right to free expression by the State as mentioned in Article 19(2). The Cinematograph Act of 1952 created the Central Board of Film Certification (CBFC), also referred to as the "Censor Board," as a regulatory authority3. The Censor Board, empowered by Section 4 of the Cinematograph Act,certifies feature films, short films, documentaries, or theater-based advertisements based on how appropriate they are for the audience. Each film is given one of four classifications by the Board: U for unrestricted public exhibition, A for adult audience only, U/A for movies that call for parental supervision for children under 12 years old, and S for special audiences only (such as the army).
With over 1250 films made each year, the Indian film industry is renowned around the world for its massive production of feature and short films.4 The issue about film censorship in India and whether it violates filmmakers' freedom of speech has arisen as a result of the recognition that cinema has the ability to influence people's ideas.Any kind of censorship might be seen as a barrier to innovation. The ideals of preserving and defending culture are frequently used to cloak unwarranted censorship, yet it is more often than not,that very culture that the filmmaker is attempting to expose and condemn. Films are not just made for amusement; they are also complex visual narratives that reflect the society in which they were created. Films endure increased censorship as they transition from being a light entertainment to being a watchdog of social issues. The impact of censorship is greater on films that are viewed in cinemas. Filmmakers now have the option to broadcast their movies online rather than in theaters owing to the existence of OTT (Over-the-Top) platforms, but these channels too are subject to censorship.
Films that are typically restricted in India deal with taboo subjects or expose societal aspects that we are not yet quite inclined to acknowledge, admit, or address. Any revisiting or reinterpretation of the past also often gets under the censorship radar owing to the fact that it is perceived as a threat to one’s comfortably accepted position. To put it another way, the CBFC frequently considers the following factors when certifying a film: scenes that could cause racial unrest; scenes that glorify antisocial behaviors like drug abuse; scenes that offend religious communities; scenes that degrade women; scenes in biographical stories that distort the truth; scenes that depict sexuality explicitly without having any bearing on the plot; scenes that depict violence against children; and scenes that contain violence or gore. Some contemporary examples that can be cited to elaborate on this further are; the controversy surrounding the film ‘Padmavat’ where the Rajput community indignantly claimed that the film distorted historical facts, thus portraying their community in a bad light. The film was originally named ‘Padmavati’ and the CFBC agreed to give it clearance only if it was renamed and certain aspects of the films were modified along with a disclaimer that it was not based on historical events. Another film that was considered controversial was ‘PK’ because it was perceived to be a mockery of religion in a country where religious identity is of paramount significance. The film was intended to be a reflection of what religion has been reduced to but it went through rounds of debate in the censor board as allegations of the film hurting Hindu sentiments or promoting ‘love-jihad’ were brought forth. The film finally cleared the CBFC and was released but questions of stricter censorship and even a withdrawal of release was discussed post the release. Furthermore, the 2017 film ‘Lipstick under my Burkha’ faced the peril of being banned due to the explicit portrayal of women of different backgrounds exploring their sexuality and its take on the need for gender equality. After an appeal by the makers to the Film Certification Appellate Tribunal5,the film was allowed a release with an ‘A’ certificate and multiple cuts.
Off late there has been much discussion about the content that is produced on the OTT platforms which has been reported to be in violation of the nation’s laws. The question that arises in such discussion is if the content should be monitored by a self regulatory body or a statutory body that has been specially established to censor the OTT content.
The Madhya Pradesh High Court in a PIL by Maatr Foundation 6 has advised that a pre-screening committee be constituted to regulate movies and television shows that are directly released on websites like Netflix and Hotstar. Therefore, it is clear that censorship of online series and digital content is very likely. However, a self-censorship agreement that has been signed by Netflix, Hotstar, Alt Balaji, Sony Liv, and other internet businesses forbids signatories from displaying any content that has been banned by Indian courts. The e-commerce behemoth's streaming service, Amazon Prime Video, has chosen not to abide by the code, arguing that the current laws are adequate.
The OTT platforms are not subject to any kind of regulation by the Union Ministry of Information and Broadcasting, Law and Justice, Electronics, Information and Technology, Telecom, or CBFC. The government views these platforms as middlemen over which they have no legal authority. However, in accordance with Rule 3(2)(b),(c), and (e) of the Information Technology (Intermediaries Guidance) Rules, 2011, intermediaries must use caution when showing, hosting, or publishing any obscene, pornographic, or illegal information and must not endanger minors. According to Rule 3(3), the intermediary is not permitted to knowingly host or start the transmission of such content.
One of the most recent issues surrounding OTT's was the John Oliver show on Hotstar, where he actively criticized the majority government and its actions and the show was further blocked on Hotstar. A similar incident occurred on Hasan Minaj's show that dealt with Lok Sabha Elections, 2019 and was highly criticized later.
The Supreme Court of India considers censorship to be "essential" 7 when there is a chance that certain aspects of the movie can elicit strong feelings and emotions from particular groups in society. The Court also acknowledges the influence that movies have as a powerfully visual medium with high rates of recall. In India, judicial censorship has a lengthy history. The State and the Judiciary have traditionally paid undue attention to movies.This approach can be best described from an excerpt nearly 50 years ago that challenged the constitutionality of censorship. In the landmark case of S. Rangarajan v P. Jagjivan Ram case8 the court held that,
“Movies motivate thought and action and assure a high degree of attention and retention. It makes its impact by 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.”
In K.A. Abbas v. Union of India9, the CBFC denied the unrestrained screening of the documentary, ‘A tale of four cities’. The reasoning given for this was that parts of the movie were shot in the Red Light Areas of Bombay. The CBFC asked the petitioner to edit the scenes shot in the Red Light Areas as a condition to permit the release of the film. The petitioner, displeased with the decision pronounced by the board decided to file a suit in the Supreme Court contending that the CBFC violated his Freedom of Speech and Expression which was granted under Article 19(1)(a). The apex court held that pre-censorship of cinema was constitutionally valid. The Apex Court further upheld that the censorship of films to safeguard the order and morality of the society is justified.
In any discussion on the constitutional validity of censorship, it is pertinent to examine if the judiciary possesses the necessary authority to consider the merits of the adjustments recommended by the CBFC. Justice Black’s comment in the landmark case Kingsley International Pictures Corpn. v. Regents of the University of the State of New York10 gives us a greater understanding of the role of the Judiciary in censorship of films.
He observed that:
… judges possess no special expertise providing exceptional competency to set standards and to supervise the private morals of the Nation. In addition, the Justices of this Court seem especially unsuited to make the kind of value judgments—as to what movies are good or bad for local communities….
While the CBFC has the authority to impose adjustments and cuts on any portions of a film that break its standards, this is frequently done by distorting the meaning of the picture to make it appear as though a breach has occurred when it may not have. Filmmakers must be careful and consider all possible angles from which their work could be dissected and criticised. In 2021, the Ministry of Information and Broadcasting proposed the Cinematograph (Amendment) Bill 2021, one of the aspects of which is the Central Government’s power to order a recertification of a film that has already been certified by the CBFC. Filmmakers now face an added layer of potential censoring which could limit their ability to express themselves creatively.
Organisations like the CBFC take it upon themselves to define what is right for the general population of the country. This not only restricts the narrative of the filmmaker but also restricts the stories the people of the state can consume. On account of the unwarranted restrictions and censorship, people lose access to diverse perspectives. This limits the fundamental freedom of expression and thus goes against our basic constitutional tenets. Film censorship by state agencies like the CBFC is viewed as a flagrant violation of Article 19(1)(a). Every citizen is bestowed with the freedom of speech and expression in our constitution. When the ability to express is shackled by unjustified restrictions, the filmmaker will not be in a position to communicate the message. Justice Lodha’s comment “if you don’t like it don’t watch it”11 precisely defines how the craft of motion pictures are to be dealt with. The Shyam Benegal Committee constituted in 2016 had recommended the abolition of the CBFC. But the transfer of powers from the CBFC to the Judiciary would be far worse. The Judiciary is devoid of any jurisdiction with respect to these matters. As a society, we've developed a fear of expressing things that may be against the norm. How can we analyse different perspectives without engaging in conversation? We find ourselves in a predicament when we prefer censorship to content analysis due to our fear of critically exploring topics. The CBFC should uphold meticulous standards to appropriately certify the films so that it reaches the suitable standards but any unwarranted and unjustified cuts by the Board on baseless assumptions and unfounded claims should be impermissible. In the authors’ opinion the Central Government should develop comprehensive guidelines that permit scenes depicting violence or abuse or any other unsettling matter only if it is of significance to the plot. Any unnecessary depiction of such content should be discouraged. Therefore, although the State is constitutionally empowered by Article 19(2) to place restrictions in the form of censorship, the State should keep in mind the grounds specified in the Constitution and should not shackle the creative freedom of the filmmakers on prejudiced claims.
1. Article 19(1)(a) states that all citizens of India shall have the right to freedom of speech and expression.
2. These restrictions on the freedom ensured by Article 19(1)(a) termed “reasonable restrictions” are declared in Article 19(2) of the Constitution.
3. Section 3 of the Cinematograph Act provides for the establishment of the Censor Board.
4. The Central Board of Film of Certification.
5. The FCAT is a statutory body established under section 5D of the Cinematograph Act. According to Section 5C of the Act, the tribunal has the power to hear appeals from filmmakers who are dissatisfied with the decision of the CBFC.
6. W. P No. 18801/ 2019.
7. In K A Abbas v Union of India, the Supreme Court opined that pre- censorship of films is essential and is Constitutionally valid according to Article 19(2) of the Constitution.
8. 1989 SCR (2) 204.
9. 1971 AIR 481.
10. 360 U.S. 684 (1959)
11. This comment was made in the case of Ajay Gautam v. Union of India (PIL No. 85 of 2014), where the ban of the film ‘PK’ was discussed.
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