I do not want my house to be walled in all the sides and my windows to be stuffed. I want the cultures of all lands to be blown about my house as freely as possible. But I refuse to be blown off my feet by any – Mahatma Gandhi

INTRODUCTION

Indian cinema attracts a wide range of viewers and is one of the largest cinema hubs in the world. In FY 2019, the box office revenue in India was INR 142 billion, a number that is mind-boggling.[1] Apart from the fondness towards cinemas, as per the statistics, going for movies is the cheapest outing option available to a family of four.[2] Now, let’s flip back to a time wherein you were eagerly waiting for a movie to hit the theatres so that you could go and watch its first show on the first day. How badly would you have resented wherein just one week before the release had the movie been banned? The movies being banned in India is not a new phenomenon and its reasons include the explicit portrayal of sexual content, the political angle attached to the movie, if it hurts the religious sentiments of the people, or if there is an incorrect portrayal of a public figure.

Movies exhibit ground reality and it is one of the most captivating forms of audiovisual which can have a huge impact on the viewers’ minds. It gains the attention of the viewers quickly due to the combination of different factors such as the intense light of the screen, the sound, you can watch the characters come to life and the environment of the theatre as we all know eliminates any form of distraction.^[3] Hence, the Apex Court has ruled that it is essential to certify the movies as Unrestricted (“UA”), Adult (“A”), Under Parental Guidance (“UA”), or  Restricted to any special class of persons (“S”), before it hits the cinemas, as it can easily motivate and influence people and hence cannot be equated with other forms of expression or communication.^[4]

Film censorship was introduced in the colonial era and it continues to exist even today. The controversies regarding film censorship by the Central Board of Film Certification (“CBFC”) and the States is not something that is novel. States have been equally involved in banning movies. For instance, the Padmavat row, there was a huge hue and cry regarding this movie right from the inception, the sets were burnt, death threats were made, and all of this took place without even knowing the actual content of the movie. The Supreme Court came to the rescue of the artists and held that the States cannot ban the movies once it has been cleared by the CBFC. Further, it is difficult to understand the relevance of changing the name from Padmavati to Padmavat and the difference it made in the end.

CENSORSHIP VIS-À-VIS ARTICLE 19

Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression subject to reasonable restrictions. Article 19(1)(a) does not list down the different mediums of expressions that fall within its ambit. However, motion pictures are one of the forms of expression and hence receive the protection of Article 19.

Article 19 mentions “freedom of speech and expression” which is significantly different from the mere mentioning of “speech and expression”. This article protects the former one and not the latter one as the former one recognizes the fact that a person has the liberty to express his/her ideas but that does not mean he/she can say whatever or whenever they want to.[5]

It has been held by the Apex Court that movies are much different from other mediums of expression, for instance, the printed word, and hence, it needs to be certified and the certification is well within the scope of Article 19. Pre-censorship was held to be constitutionally valid in the landmark case of K.A. Abbas v. Union of India[6] (“K.A. Abbas”).

The Central Board of Film Certification (nomenclature has been changed from Central Board of Film Censorship), has been established under the Cinematograph Act, 1972 (“Act”) and as the name suggests, it is for certification of movies.  However, under Section 4 of the Act, the CBFC has also been given the power to refuse the sanctioning of a film for public exhibition. Despite the change in name, there is a little change in the role of CBFC and it continues to ban movies on hare-brained grounds. Once the movie has been certified it should be left to the viewers’ decision as to whether they wish to watch the movie or not.

The CBFC has been resistant to change and the same is evident from the fact that in the year 2002 when Vijay Anand, the Chairman of CBFC, had proposed changes in the censorship law and had also suggested that films with explicit sexual content should be portrayed too, the government prevented the entire action and did not even consider to look into the matter[7]. It is pertinent to note the observations of the Shyam Benegal Committee constituted to recommend guidelines for certification of movies and it had suggested that the role of CBFC should be limited to mere certification of movies and that the system of suggesting alterations in the movie should be completely done away with.[8] The Committee had submitted its report in April, 2016, however, until now no action has been taken.

Ever wondered whether the content being shown on the OTT platforms such as Amazon Prime, Netflix, or Disney+Hotstar is censored or not or how do they manage to portray content that has explicit sexuality and extreme violence.  In response to an RTI filed by India Today TV, it has been confirmed that neither the CBFC nor the Ministry of Electronics and Information Technology regulates the content being shown on the OTT platforms. Thus, it can be seen that this is a positive step towards the premise that it should be left on the viewers’ choice as to whether they want to watch a particular content or not. A similar approach should be followed by CBFC too and the powers of the CBFC should be restricted to mere certification of movies.

THE ROLE OF JUDICIARY

Under the Indian Constitution, the powers and functions have been allocated between the three organs, i.e. the legislature, the executive, and the judiciary, and all the three are required to work independently. However, another unique feature of our Constitution is the checks and balance system, wherein one organ keeps a check on the other organ and the same applies to the CBFC as well wherein the judiciary keeps a check on the CBFC. The British had kept the area of film censorship completely outside the purview of the judiciary, however, in the K.A. Abbas case, it was argued that there should lie an appeal with the courts, which the government agreed to and it was observed by the Apex Court that the same was necessary to remove the stigma around the film censorship in India.

It cannot be denied that the role of the judiciary in the case of Indian cinemas has brought in great relief to the filmmakers and audience and its role cannot be neglected as it has been massive. One such precedent is the case of Vinod Kumar Kanojia v. UOI[9], wherein the petitioner claimed that the use of the word ‘dhobi’ in the movie Dhobi Ghat is an insult to their community and that has affected and dented the feeling of the community. The Court said that firstly, the name in no manner can be offensive to a particular community, and secondly, it pointed out that the PIL’s were being misused to gain personal interests and the issues raised have no nexus with the public interest. Had there been a violation of any act or rules by the CBFC, they would have interfered, but just because the name of the movie is Dhobi Ghat, it does not fall within that sphere of protection.

Another such precedent is the case of Rashtravaddi Shiv Sena v. Sanjay Leela Bhansali[10], wherein the Delhi High Court rightly pointed out that our Constitution grants not only freedom of speech but freedom after speech. The petitioners contended that the name of the movie is Ramleela and it gives a wrong impression of the movie being based on Lord Ram’s life whereas on the other hand the movie is completely based on violence and is filled with vulgarity. The petitioners further contended that the movie deliberately aimed at hurting the religious sentiments of the people. The Court said that the Constitution provides for prior restraint, however, the weighing scale needs to be favored towards the artists who should have room to showcase their art in the form of movies. The petitioners had admitted that they had not watched the movie. The Court further pointed out that the title, scenes, and dialogues should not be judged from a weak-minded person’s point of view. The movie was released and it crossed the 100 crore mark at the box office, which again shows that the final decision should rest with the viewers.[11]  

The Bombay High Court in a recent judgment, Children’s Film Society v. CBFC, slammed the CBFC and held that CBFC should not be the one deciding what a person should watch. The CBFC in this case had granted a U/A certificate to the movie Chidiakhana. The order of the Bombay High Court made some really strong observations about CBFC and it further said that the role of CBFC will have to be redefined. The Court pointed out that merely by deleting one or two scenes from the movie would not change the ground reality and that movies can be used as a medium to educate children about the issues existing in the society. The Bombay High Court also noted that the role of the CBFC is to certify the movies and not censor them.[12]

It is not just the CBFC but even the state governments have played an active role in banning the movies. In S. Rangarajan v. P. Jagjivan Ram[13] case, the state government banned the movie, Ore Oru Gramathile. Further, when challenged in the Madras High Court, the “U” certificate granted to the movie was revoked on the ground that the release of the movie would lead to demonstrations in the state. However, the Supreme Court reversed the judgment of the High Court and held that the freedom of speech and expression cannot be compromised upon, due to the threats of demonstration and violence.

The movie Da Vinci Code despite being given an ‘A’ certificate by the CBFC was banned in several states on the ground that it hurt the religious sentiments of the Christian and the Muslim community. Further, a PIL was filed to ban the movie and the selling of the original novel on which the movie was based, throughout India, which was rejected by the Apex Court. The Supreme Court further pointed out that the movie had not been banned in any of the Christian dominated countries and there was no legitimate ground brought forward by the petitioners to ban the movie in India.[14] Later on, the High Courts of various states revoked the ban.[15] The Madras High court while revoking the ban held that[16]:

“When our Courts have considered it their duty and responsibility to intervene when even the Central Board of Film Certification interferes with the fundamental right of freedom of speech and expression, the duty and responsibility is heavier in this case where the film has got the Censors’ approval and yet, the petitioners have been prevented from exhibiting the film by an order which has no reasonable basis. Therefore, the impugned order is void for contravention of the fundamental right.”

The Apex Court, in the case of Harinder S. Sikka v. Union of India has made it amply clear that once the movie has been certified by the CBFC, no body, group, association or individual can obstruct the screening of the movie. It further noted that once the movie has been certified, unless the certification is modified or altered by a superior authority, there should not be any hindrance caused in releasing the movie.[17]

CONCLUSION

The list of the number of movies banned in India is endless right from the first movie that was banned by the CBFC i.e. Neel Akshar Neechey to other movies such as Bandit Queen, Madras Café, Fire, Final Solution, and so on. The CBFC, sometimes, instead of refusing to grant the certification asks the movie producers to remove certain parts, i.e. cut scenes from the movies, for instance, movies like Padmavat, Udta Punjab,  and Hava Aane Dey were asked to cut out several scenes from the movie. No doubt, the essence of the movie is lost altogether when so many parts are required to be cut.

However, banning the movies is not the solution and the same is evident from the fact that when the movie India’s Daughter was released on YouTube, after being banned in India, it received thousands of views. Sadly, the movie was again taken down as requested by the government. On the other hand, the judiciary in India has played an active role in upholding the freedom of speech and expression of the artists along with ensuring the need for certification. Moreover, the courts have not shied away from its responsibilities to ensure that the essence of the Indian Constitution is always upheld. Further, it has been rightly pointed out by Mahatma Gandhi that the windows should be kept open and different cultures should be allowed to be blown around the house. Maybe, someday the essence of his words will be reflected in the way Indian movies are certified.