Legal

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This Blog is written by Jay Gajbhiye from National Law University, Odisha. Edited by Harshita Yadav.

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“There is a fine line between Censorship and Good Taste and Moral Responsibility”

– Steven Spielberg

INTRODUCTION

Censorship is a process that controls some components of the information by the entity which does not adhere to the thoughts and knowledge circulated in society. In general, the government controls the flow of many parts of a book, film, or anything that the public can see. This involves television, internet, news, and Over the Top (OTT) sites such as Netflix, Hulu, etc. The fundamental idea behind the censorship of something is that these distinct media sites do not harm the public at large. For example, many such sexually-provocative acts, graphic acts, inciting acts, or even acts that harm the feelings of any religion or race can have a detrimental effect. In democratic countries such as India, citizens profit from freedom of expression and speech, but usually, they also have other restrictions.

“The term ‘censorship’ comes from the Latin word ‘censere’ meaning to give one’s opinion or to assess. In ancient Rome, the censors, two Roman magistrates, conducted the census and regulated the manners and morals of the citizens.”[1]

“The Oxford Dictionary of English defines censorship as the suppression or prohibition of any parts of books, films, news, etc. that are considered obscene, politically unacceptable, or a threat to security.” Films are recognized as a splendid method of public contact. Technological advancement generated a wave of change in how the films in all parts of India might hit the public. It has enhanced the film’s ability to make a significant contribution to nationwide socio-cultural growth. The exhibition is controlled by the 1952 Cinematographic Act, preceded by the 1918 Act. This Act of 1952 also governs the licensing procedure of films for box office exhibitions.

Censorship is a phenomenon that exists within the framework of authority and liberty over its subjects. An authority communicates with its subjects through different media (print media in the form of articles, books, documentation, or audio-visual media such as television shows, films, etc.). Media are means of influencing, inspiring, and educating men. People can watch a movie for entertainment, but a film offers information and motivation with entertainment. There is a plural medium, it has over one objective, it has more than one component, it has more than one configuration, it has more than one reading. A film can capture a past, can develop a modern practice, can compose modern geography, can build knowledge, can contribute to scientific discovery, etc. As one of the most appealing audio-visual services, it has the biggest impact on people. If the effect contravenes the prescribed authority standards, the authority censors the films [2].

CENSORSHIP OF MOVIES

When studying the history of film censorship in India, we can state the following explanations why a film is prohibited or censored:

i) “Sexuality”, ii) “Politics”, iii) “Religion”, iv) “Communal conflict”, v) “Incorrect portrayal of someone or something”, vi) “Extreme violence”.

(I) Sexuality

Indian society has a rigorous social structure in existence. Marriage is a holy union where sexual activity is allowed between women and men even though individuals have various forms of identity, such as homosexuality, lesbianism, that have been rejected by the Indian community or the Freudian ideas of Oedipal longing. Any means, whether published or audio-visualized, which is not publicly accepted by Indian culture is prohibited as it can weaken Indian morals. “Kamasutra” was prohibited in India on account of its pornographic, homosexual imagery in this argument. Deepa Mehta’s film “Fire” was banned because of its homosexual ties. This was one of the first movies to portray open homosexuality. The 2004 film “Pink Mirror (Gulabi Aaina)” has been censored in India as a transgender subject. “The girl with a dragon tattoo” [3] was prohibited because of its sexual kidnapping and harassment scenes. During the filming, several Hindu groups protested in Varanasi with the movie “Water” that depicted divisive topics such as bigotry and ostracism. Sexuality is still not openly revealed in India. Many sects are opposed to all sexual aspects. It is a fact that is concealed in our daily lives.

(II) Politics

As long as repression is concerned, there will be no isolation between democratic movements. The censorship of a film by a democratic state is also funded by those who are directly or indirectly qualified. An institutional body that allegorically or explicitly represents a political circumstance is banned. ‘Neel Akasher Neechey’ was the first Bengali language film produced by Mrinal Sen to be denied by the government of India for its glaring political error. In 1963, Gokul Shankar [4] was barred by the government, implying political grounds for Mahatma Gandhi’s assassination by Nathuram Godse. ‘Garam Hawa’, a 1973 Hindi-Urdu movie, directed by M.S. Sathyu fixated on the unpublished short story of Ismat Chughtai. It mentioned the plight of a North American Muslim businessman and his relatives during the tragic time of partition. The Indian Censor Board halted it for 8 months in fear of triggering city conflict but was subsequently authorized. In 1975, Indira Gandhi censored ‘Aandhi’, a 1975 film which was intended to be an allegory of a then-Prime Minister. The Union government prohibited ‘Kissa Kursi Ka’, a satirical film about India Gandhi and her son Sanjay Gandhi, during the emergency era. There were 51 grievances and the claimant demanded an explanation. ‘Sikkim’, directed by Satyajit Ray, was financed by the King of Sikkim when he found that Sikkim was harmed by India and China. When Sikkim united with India in 1975, the Indian government outlawed it. The ban was withdrawn in 2010.  ‘Kuttrapathirikai’, a Tamil Nadu drama, was not screened until 2007 as it was necessary to fix complex issues of Rajiv Gandhi’s assassination and the Sri Lankan Civil War. Andhra Pradesh, Uttar Pradesh, and Punjab forbade ‘Aarakshan’, a Hindi movie, to explain that this could disturb the lower section of society in terms of policy regarding reservations in institutions. In the early weeks of June 2016, we witnessed a debate about the film ‘Udta Punjab’, directed by Abhishek Chaubey. With a few adjustments, CBFC (Central Board of Film Certification) agreed to release the film. It was a drug-themed film with a specific connection to Punjab. The Punjab and Haryana High Court notified the Indian government, the CBFC, and the developers of the display. The movie was supposed to have some derogatory images of Punjabi’s and Punjab.

(III) Religion

Religion as an entity tolerates no disregard for its ideals. All means that darken a religious character are criticized and prohibited by the same. Film censorship is affected by religious sentiment in India. ‘Indiana Jones and Temple of Doom’ [5], an American action film was banned by the Indian Government in 1984, for depicting Kali as the symbol of the underworld. In 2006 in Andhra Pradesh, Tamil Nadu, Nagaland, Goa, and Punjab banned ‘The Da Vinci Code’ as it damaged the religious sentiments of Christians.

(IV) Communal Conflict

A film is also banned because it triggers party conflicts in a varied region. Heterogeneity is a country characteristic of India. A 2004 documentary about Gujarat riots titled ‘Final Solution’ was censored by the Censor Board of India. The film was supposed to introduce major provincial protests. ‘Hawayein’, a 2003 film from the Bollywood, was barred for the depiction of the Sikh massacre of 1984 in Delhi, Haryana, and Punjab. The Indian Censor Board authorized another film, ‘Amu’, focused on Sikh riots in November 1984. ‘Vishwaroopam’ was banned in 2013 after demonstrations by Muslim organizations.

(V) Incorrect Portrayal of a Popular Figure

It is sometimes a popular figure who condemns and censors a medium’s portrayal. After Phoolan Devi sued its authenticity, ‘Bandit Queen’, the biographical film of Phoolan Devi, was banned by the Delhi HC. ‘Main Hoon Rajinikanth’ was disparaged by Rajinikanth and approached the High Court to avoid the film’s release. Rajinikanth thought that the film would defile his image. After Rajput’s insurrection against Jodha Bai’s portrait of Akbar’s wife, the film ‘Jodhaa Akbar’, was forbidden. It was later released.

(VI) Extreme Violence

The depiction of vicious cruelty disturbs the human being’s conscience. Enjoyment is one of the main reasons to watch films while belligerence is a fact in existence. ‘Paanch’ is an unreleased Indian film. The CBFC objected to its brutal representation, but was subsequently authorized to release but could not be cleared. Anurag Kashyap directed it.

These bans come from a body, an institution, a committee, a court, or a popular figure. The first questions arise: do things continue to be depicted in India by films? Biographical films cannot be considered because the authors are their authority. But take reservations policies, religious disappointments, sexual changes in India, community riots, and the way people live in India into consideration. An Indian who observes all of this in everyday life cannot repudiate that in a film. The film is above all an important means and everybody, from a child to an old man, is attracted by the fun of it. While freedom of expression is a fundamental right in the Indian constitution, freedom of expression does not allow individuals to express freely, Article 19(2) of the Indian Constitution limits freedom of expression on the following subjects:

i). State Security, ii). Friendly foreign relations, iii). Public order, iv). Decency and morality, v). Court disdain, vi). Defamation, vii). Incitement to a crime, and viii). Sovereignty & integrity of India. According to IT Regulations 2011, the content which “threatens the unity, integrity, protection, stability or the supremacy of India, foreign relations and the public order” must be refused.

CONSTITUTIONALITY OF CENSORSHIP UNDER ARTICLE 19(1)(A)

In India, all different media outlets enjoy the same rights as related to the Constitution of India and freedom of speech about the creation and dissemination of a concept. Article 19(1) of the Indian Constitution provides freedom of speech and expression for the Indians. This also governs both the news and films. Matters that threaten foreign relations, international affairs, government integrity and honor, fairness, justice, public order, etc., as specified in Article 19(2) of the Indian Constitution.

The Supreme Court ruled that the censoring of movies, their registration by age category, and their suitability for unregulated screening, with or without excisions, was deemed to be an appropriate exercise of authority for the sake of popular morals, dignity, etc. It cannot be construed as inherent trespass on freedom of speech and expression [6].

CASE LAWS

K.A. Abbas v. Union of India [7]

The succinct information that contributed to the court hearing was that the plaintiff (a filmmaker) produced a documentary titled “A Tale of Four Cities” by analyzing the four cities of Calcutta, Mumbai, Madras & Delhi. The plaintiff demanded a “U” certificate but was issued an “A” certificate. An appeal against the classification was lodged, and instead, a “U” certificate was issued on condition that further reductions and improvements were made. The appellant was not pleased with this decision, so appealed to the Supreme Court. The plaintiff pleaded that censorship itself infringed the freedom of expression provided for in section 19(1)(a) of the Constitution. For the first time in India the Court, communicating through, Chief Justice Hidayatullah, abolished certain regulating standards of censorship.

The Court ruled that censorship of films and their categorization, as per age categories, is a valid practice of power in the context of public morals, dignity, etc. It should not be viewed as violating freedom of expression. Part of the decision was largely focused on the assumption that a person who reads a book or listens or writes a speech or sees a drawing or an art piece is not as emotionally influenced as seeing a video. The Court’s understanding was the rationale behind the government’s restrictions and repression of the films.

Rangarajan v. P. Jagjivan Ram [8]

In the case of Abbas, despite the Traditional opinion of the Supreme Court, the courts are usually pro-liberal in the case of films. In S. Rangarajan v P. Jagjivan Ram, this case was an appeal against the High Court’s decision revoking “U” certification given to the Tamil film named “Ore Oru Gramathiley,” which was a parody of the critique of the policies of the public reservation to jobs, which exposed the suffering of the “Brahmins” because of it. The High Court reasoned that the solution to the Tamil Nadu movie was expected to be dysfunctional, as Tamil Nadu had long been subject to caste damages. Several claims were often made about Dr. B.R. Ambedkar and specific Tamil people. The Court was lawful because Rule 11 obliges the CBFC to analyze public film reactions before issuing the certificate and the Court simply maintains the legislative purpose.

The Supreme Court however swept this dispute aside and condemned the State for recognizing the possibility of protests and processions. The Court held that:

“If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of the threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and surrender to blackmail and intimidation. The State must protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression”.

LIC V. Prof. Manubhai D. Shah [9]

The SC intervened again in the case of Professor Manubhai to guarantee freedom of expression. The creator made a film on the Bhopal Gas Tragedy that went on to win the coveted Golden Lotus Awards. However, when the tour was introduced in India, the national television channels did not air it stating the reason for interference by political parties. The Court denied the claim and stated there was no reason for denying the release merely because the Administration was attacked by a documentary. In films like Aarakshan, Udta Punjab, Padmaavat, etc, the Court has taken a common opinion.

DOES CENSORSHIP EVER WORK?

Traditionally, films can be regulated and prohibited to safeguard the status quo and to avoid the influx of aberrant ideas that are not majority values. Of starters, between 1930 and 1968 Hollywood implemented a code that prohibited any link to homosexuality in films. Filmmakers have used inventive allegories and references illustrated in “The Celluloid Closet“[10] documentaries to circumvent such a code. Hence the utility of prohibiting a certain film is futile when creators attempt to convey it by using indirect methods that the censors cannot prevent.

Consequently, the rationale of the government for police morality and the promotion of Indian identity fail when the amount of sexually suggestive material accessible online is taken into account. The omnipresence of pornography and its rapid exposure to Internet connectivity undermines the moral regulation censors are trying to implement. This argument illustrates the intrinsic absurdity of the censor’s functioning. The censors are more worried about the ‘normal’ status of the government than about its indiscretion.

In the new era of the digital media, “hazardous” video scenes and ideas are also being censored because of their apparent inconsistency of the values and ideologies of freedom of speech and expression which uphold contemporary democracy. The statute forbids the release of sexually explicit videos. The first aims to control the culture’s morals, while the latter tries to legitimize the ancient and modern social events in the world. The unclear terminology of the monitoring requirements exacerbates the arbitrariness of monitoring. For starters, the term “maintaining the public order” is ambiguous and may be used as a sensor for banning a film in which the majority dislikes or legitimizes it. That is the reason for the discretionary power of the Censor Board to decide on the best films for society.

CONCLUSION

Press is one of the key means to pull diverse thoughts of various individuals into the public sphere and thus a free and open press is crucial and should be free of censorship. Restrictions of some kind do not contravene the inherent freedom in the culture of democratic communities to share one’s views. At the same time, however, the realistic reality of the culture through which these concepts are transmitted must be taken into account. In sharing one’s thoughts, the harmony and stability of society will not be interrupted. Since movies will affect culture as a whole and as a collective message, caution has to be taken to avoid confusion and risks to national security when watching the film. The harmony between these two things, i.e. the freedom to communicate and the responsibility to do so respectfully should, therefore, be preserved and peace in the community should be established. The CBFC will take a rational stance during film analysis and recognize the above-mentioned points to preserve peace and unity within the community and the civil order.

REFERENCES

[1] Sumit Mathew, ‘Censorship of Films’ http://www.legalserviceindia.com/legal/article-351-censorship-of-films.htmlaccessed 27th June 2020.

[2] Aditya Kumar Panda, “CASE STUDY: FILM CENSORSHIP IN INDIA” (2017) Scholedge International Journal of Business Policy & Governance 4 Issue 02 Pg 7-11.

[3] “Fincher, David, “The Girl with the Dragon Tattoo cancelled in India” Guardian News and Media Limited http://www.theguardian.com/film/2012/jan/30/girl-dragon-tattoo-cancelled-india accessed 28 June 2020”.

[4] “http://www.gutenberg.us/articles/list_of_films_banned_in_india#cite_note-Roger2004-1”

[5] “Signore, John Del, “Brewery Apologizes To Hindus For Temple Of Doom-Inspired ‘Kali-Ma’ ‘Beer’”. www.gothamist.com  (May 15 2012)”

[6] K.A. Abbas v. Union of India, (1970) 2 SCC 780 at p. 797

[7] (1970) 2 SCC 780

[8] (1989) 2 SCC 574

[9] 1993 AIR 171

[10] Rob Epstein and Jeffrey Friedman, “The Celluloid Closet” (1996)