Freedom of Speech & The Fallacy of Censorship

“Assassination is the extreme form of censorship.”
– George Bernard Shaw

The Indian film industry or “Bollywood” is one of the largest in the world with “around 1500-2000 films produced every year”, according to ‘Indywood’ – The Indian Film Industry Report. The report further goes on to state that by 2020, it is expected to reach a total gross realisation of INR 238 billion. These movies play a very pivotal role in shaping society, especially how it has evolved over time. A reflection of society, and therefore an essential part as they affect the masses in our country. The art of film-making is a medium through which a larger picture of the society is depicted on screen. This acts as a source of introspection to bring about positive change in the society.

Considering the amount of money involved, it is not out of place to imagine the amount of revenue the Government receives for every film produced, and the number of jobs every film’s production creates.

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The Issue

The issue of censorship is intertwined with the Constitutional fabric; specifics of the Right to Freedom of Speech and Expression are provided under Article 19(1)(a). A handy provision, it comes to the rescue of artists and producers from time to time, when unconstitutional bans are proposed on movies. This time the movie under fire is Padmavati directed by Sanjay Leela Bhansali. In this article, I will trace the history of some movies that were banned and how they were dealt with by our apex court.

The first movie to be banned in independent India was Neel Akasher Neechey by Mrinal Sen in 1959. The movie suffered a two-year ban for its political overtones. The second movie to get the axe was Kissa Kursi Ka by Amrit Nahata who at the time, interestingly, was a Member of Parliament. The movie was a satire on the politics of then-Prime Minister Indira Gandhi. It was eventually banned and all prints were confiscated by the Government of India.

Other movies which followed suit over the years were Bandit Queen in 1994, Fire in 1996, and Black Friday which was originally to be released in 2005, but eventually released in 2007.

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Legal Position

The question is – under what laws are these bans imposed? The Centre, under Section 3 of the Cinematograph Act of 1952, has constituted a Central Board of Film Certification (CBFC). This board consists of a Chairman heading a minimum of 12 members, whose primary objective is to provide sanction to films before opening to the public at large. This is done via certification as Adult (A), (UA), (U) or (S), and in some cases even by refusal to sanction the movie for public exhibition. The aggrieved parties – in this case, filmmakers who did not get the approval for movie screening – can then approach the Appellate Tribunal in Delhi. A number of these bans have reached the Courts from time to time. Here are a few instances to establish the actual legal position taken by our courts on such issues:

i. In the case of KA Abbas Vs Union of India (1970) [2 SCC 780], the Hon’ble Supreme Court expressed its view on censorship saying that it was justified in the field of cinema.

ii. In Ramesh Vs Union of India (1988) [1 SCC 688], a ban was imposed on a TV serial Tamas which depicted the partition of the country. The apex court while upholding the view of Bombay High Court concluded that censors must make allowance in favour of freedom and make way for freedom and, therefore, a fine balance is to be struck.

iii. In the case of Director General, Directorate General of Doordarshan Vs Anand Patwardhan (2006) [8 SCC 443], Doordarshan refused to telecast a documentary ‘Father, Son and Holy War‘, an award-winning film which depicted social vices that were eating our Constitution. The Hon’ble Supreme court held that the movie should not appeal to the prurient interest of a person and should be seen applying contemporary community standards seeing the movie as a whole and not in bits.

iv. And in recent times, the case of Udta Punjab, a movie based on the rampant drug use and abuse in the state of Punjab. The CBFC had initially asked for more than 89 cuts but after the said decision was challenged before the Hon’ble Bombay High Court, the movie was released with only one cut.

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Protection Under Article 19(1) & The Reasonable Restrictions

Article 19(1)(a) provides for freedom of speech and expression to all citizens, but then the Article also lays down certain “reasonable restrictions” on these rights “in 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 in relation to contempt of court, defamation or incitement to an offence.”

Though there is no set benchmark for ascertaining what can be termed as reasonable or unreasonable, the makers of our Constitution have set certain limitations which fall under ‘reasonable restrictions’ to the freedom of speech. The banning or censoring of certain films under the above stated grounds of reasonable restrictions may be fine, but banning films on the ground that it “hurts the religious sentiments of a community”, or that “it defies Indian sensibility”, or because “it is against the Indian ethos or culture” has neither been enshrined in our constitutional framework, nor interpreted by our courts, and is wholly untenable.

The freedom of speech forms an essential part of the Constitutional fabric of any democratic setup. It should not be curtailed in any manner by the Government to suit its own needs or propaganda. The banning or censoring of these films by the CBFC directly violates the freedom to practice any profession or to carry on an occupation as provided under Article 19(1)(g).

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The CBFC is a statutory body entrusted with the power to certify films before they are released to the public at large. It is not their duty to interfere with the creativity of the director or writer by asking for unreasonable cuts. By censoring films on the grounds of religion, sentiment, etc. we are giving these frivolous fringe groups motivation to maneuver things by force to suit their needs.

Censorship cannot be used as a tool/weapon in the hand of the state to browbeat people into pandering to their agenda or ideology. The lack of autonomy in the board raises important questions about the existence of such a body which acts as a puppet in the hand of the Central Government. The courts in our country have done a laudable job in upholding the freedom of speech and expression, as provided under the constitution.

If democracy has to evolve then the current laws with regards to censorship have to evolve accordingly; films should not be banned merely on speculation or to assuage the ego of certain groups.

Ayush Negi Profile Picture, Author at Indus Dictum

The author, Ayush Negi, is an Advocate in the Supreme Court. His work focuses on social justice reform for the underprivileged.

Tweet at Ayush: @Adv_AyushNegi


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