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The role of Central Board of Film Certification (CBFC) with reference to Right to Freedom of Speech and Expression in the Indian... Article · February 2015
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The role of Central Board of Film Certification (CBFC) with reference to Right to Freedom of Speech and Expression in the Indian Film Industry i!e" #hupdale$
“ Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.” - Justice Patanjali Shastri1 Introduction% Indian film industry has been under fire recently due to ban imposed on some films which created breach of peace and harmony in the society.2 There seems to be political interference in ettin the films released either without any cuts or with cuts as per the whims and fancies of some political leaders by way of pressurin the !entral "oard of #ilm !ertification $!"#!% which is the only reulatory body put in place to censor the scenes which they consider to be objectionable. &s. 'eela Samson( !hief of !"#! recently resined from her post as she alleed that there was a lot interference and pressure from some political leaders in the autonomous functionin of the board. This shows that the !"#! is not functionin autonomously but has been a tool of e)ploitation from the political parties. This has been pro*ed from the fact that two films P+ and &S, The &essener of ,od too the beatin from the censor board and the political parties too. &s. Samson was pressuri/ed by some riht-win 0indu reliious orani/ations to ban the film “P+( that taes swipes at self-styled holy men and reliious superstition. The film was e)hibited across the country without major cuts. This was followed by yet another contro*ersial film &S, The &essener of ,od which was called by the Sih orani/ations as blasphemous was allowed to be filmed by the #ilm !ertification ppellate Tribunal $#!T% in its 3uic decision after an appeal was filed aainst the decision of the !"#! for bannin the same. This led the !hief of !"#! alonwith all the other officials of the board to resin from their official positions. 4ow the 3uestion arises here is that whether the 5
ssistant Professor( 6epartment of 'aw( Shi*aji 7ni*ersity( +olhapur( &aharashtra State( India. 8uoted from his landmar judment Romesh Thaper v. State of Madras ( 19:; S!< :9= I< 19:; S! 12=. 2 #ilms such as Fire !""#$, Final Solution %&&'$, (ava )ney *ey %&&'$, )mu %&&+$, ater %&&+$, -hand hu/ 0aya %&&+$, The *a 1inci -ode %&&#$, )a/a 2achle %&&3$, abu a/rangi %&&3$, 4odha )5bar %&&6$, *eshdrohi %&&6$, (ad )nhad %&&"$Firaa7 %&&"$, The 0irl with the *ragan Tattoo %&!!$, 8aum *e (eere %&!'$, 1ishwaroopam %&!9$, Madras -af: %&!9$, ;8 %&!'$ and MS0 < Messenger of 0od %&!'$ and some T1 serials such as Tamas were initially banned and some of them are later on permitted to be released and e=hibited or telecast with appropriate cuts and alterations, etc. to avoid communal violence. 1
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!"#! should be allowed to function as it is with autonomous powers without political interference or its powers are to be restricted to mere a body for ratin the films produced in India as well as forein films released in India as per their contents and allow the films o uncut and hence protect the rihts of the producers( directors and writers to freedom of speech and e)pression> The freedom of speech and e)pression of citi/ens of India is the most basic fundamental freedom protected under the Indian !onstitution of India.? This freedom allows the citi/ens to freely e)press their ideas and thouhts throuh *arious mediums such as print( audio or audio-*isuals( with the help of pictures( sins( paintins( films( dramas( etc. 0owe*er( this freedom is not at all absolute in nature but has been 3ualified with some reasonable restrictions imposed under rticle 19$2% of the !onstitution of India on what may be feely said( published or e)hibited( especially in the conte)t of media and entertainment sector. = The present article is an attempt to study the role of !"#! and #!T : in protectin the freedom of speech and e)pression at the same time ensurin that no reliious sentiments are hurt while allowin the films to be released and also to suest some remedial measures to rectify the situation. The Freedom of Speech and Expression in India% The Supreme !ourt $S!% of India has been from time to time 3uestionin the manner in which the riht to freedom of speech and e)pression has been misused by the citi/ens of India. The riht to freedom of speech and e)pression is not absolute but is bein reulated by reasonable restrictions imposed under rticle 19$2%@ of the !onstitution of India. "ut the permissible restriction on this riht must be imposed by a duly enacted leislation and must not be unreasonable or arbitrary in nature. If any restrictions are in e)cess( then they may defeat the *ery purpose of enactin the said freedom under rticle 19$1%$a%. The S! has interpreted the meanin of the term ArestrictionB in different ways in its *arious landmar judments. In .+. ,opalanBsC case !hief Justice +ania( Justice Patanjali Sastri and ?
See rticle 19$1%$a% of the Indian !onstitution which says that( “ll citi/ens shall ha*e riht to freedom of speech and e)pression. = "hashin 'alit( 2;1;( Media orld and the >aw ( 7ni*ersal 'aw Publishin !o. P*t. 'td.( 4ew 6elhi( at p. 1C. : The #ilm !ertification ppellate Tribunal $#!T% is a statutory body( constituted *ide Section :6 of the !inematoraph ct( 19:2 $?C of 19:2%( under the &inistry of Information and "roadcastin( ,o*ernment of India. The Tribunal hears the appeals filed under Section :! of the ct under which any applicant for a !ertificate in respect of a film who is arie*ed by an order of the !entral "oard of #ilm !ertification $!"#!%( can file an ppeal before the Tribunal. The Tribunal has its head3uarters in 4ew 6elhi. The Tribunal has a Secretary to loo after its day to day affairs. @ rticle 19$2% 4othin in sub-clause $a% of clause 19$1% shall affect the operation of any e)istin law( or pre*ent the State from main any law( in so far as such law imposes reasonable restrictions on e)ercise of the riht conferred by the said sub-clause in the interest of so*ereinty and interity of India( security of the State( friendly relations with forein States( public order( decency or morality( or in relation to !ontempt of !ourt( defamation or incitement of an offence. C .+. ,opalan *. State of &adras( 19:; S!< DD( I< 19:; S! 2C.
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Justice 6as e)plained the term ArestrictionB. ccordin to Justice 6as( ArestrictionB implies that part of the fundamental riht is restricted lea*in the other part in tact. Justice Patanjali *iewed ArestrictionB as partial prohibition of the freedom and !hief Justice +ania referred the term ArestrictionB as Apartial controlB. Therefore( by way of imposition of reasonable restrictions the law does not affect the riht to freedom of speech and e)pression but the manner in which it is e)ercised is restricted. Film Censorship and rating in &nited States of 'merica (&S') and India ' Comparati!e 'nalysis% 6urin 19?; to 19@D there were a set of industry moral uidelines that were bein applied to most of the 7nited States mo*ies. These set of rules were popularly nown as the 0ays !ode named after Eill 0. 0ays( then President of the &otion Picture Producers and 6istributors of merica $&PP6% from 1922 to 19=:.D The Production !ode adopted by the &PP6 pro*ided for restrictions as to what content was permissible and what was not in films produced for a public audience in the 7nited States. The film industry followed the code uidelines by the late 19:;( but thereafter the code started loosin its hold due to the ad*ent of Tele*ision( influence from forein films( some bold directors and e*entually in 19@D( after se*eral years of neliible enforcement( it became outdated and was finally replaced by the &otion Picture ssociation of merica $&P% film ratin system which is still applicable to all the 7nited States &otion pictures. This system consisted of four ratins “0 for eneral audience( “ M $later on became “0; and now it is nown as “ ;0 F Parental ,uidance( then it is also chaned to “ ;0 < !9 in 19D=%9 for mature content( “ R for restricted $under 1C not admitted without an adult% and “ ? 1; for se)ually e)plicit content. 11 This shows that in 7S film censorship is concerned only with the film ratin based on the contents of the motion picture and the authorities nowhere deals with e)cision or modification of the film contents as it is followed by our !ensor "oard uthorities.
&ost of the film personalities and producers and directors are now 3uestionin the *ery e)istence of the !ensor "oard. "ut a handful of them D
Motion ;icture ;roduction -ode .
Production H !ode. In 19@9( the Swedish film @ )m -urious Aellow$ ( directed by ilot Sjman( was initially banned in the 7.S. for its fran depiction of se)ualityK howe*er( this was o*erturned by the Supreme !ourt. In 19C;( because of confusion o*er the meanin of Lmature audiencesL( the M ratin was chaned to 0; ( and then in 19C2 to the current ;0( for Lparental uidance suestedL. In 19D=( in response to public complaints reardin the se*erity of horror elements in P,-rated titles such as 0remlins and @ndiana 4ones and the Temple of *oom ( the ;0B!9 ratin was created as a middle tier between ;0 and R. 1; In 199;( the ? ratin was replaced by 2-B!3 $under 1C not admitted%. 11 Supra 4ote 1;. 9
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say that the !ensor "oard must be allowed to function independently without any political interference with some more powers so that it can e)ercise control o*er the misuse of the freedom of speech and e)pressions uarantied by the !onstitution of India. The researcher would lie to adopt the latter *iew of looin at the role of !ensor "oard. The reason is that we in India still ha*e preser*ed our culture to some e)tent. There must be control on the contents of a film because film is the only medium of entertainment which has an immediate impact on children and the youth. M)perience has shown that some of the crimes in India are bein committed due to the inspiration that they et from the mo*ies. "esides( today the technoloy has reduced the modes of entertainment into a palm si/e smart phone where due to *ideo and internet piracy and illeal downloadin of e*en sometimes uncensored films which are uploaded on the internet are bein watched by the public especially todayBs youn teenaers. s far as India is concerned( there are *arious enactments enacted from the inception of the pro*isions under rticle 19$2% of the !onstitution of India( but the present research article will concentrate only on one enactment which is The !inematoraph ct( 19:2 $hereinafter called as the Act of 19:2B%. The main objecti*e of this ct is to pro*ide for the certification of cinematoraph films for e)hibition in public and for reulatin the same by censorin the film before release. The ct of 19:2 has empowered the !entral ,o*ernment to establishment of a "oard called as the !entral "oard of !ertification $!"#!%.12 The main function of the !ensor "oard is to certify films fit for public e)hibition. The !ensor "oard may after scrutini/in the film alon with the ad*isory panels( may either certify with “7 if the it is suitable for unrestricted public e)hibition( or with “ if it is not suitable for unrestricted public e)hibition for adults only or with “S if it is suitable for public e)hibition restricted to any members of any profession or a class of persons. The films so certified will be mared with suitable rades as per their contents. The !ensor "oard may also direct the filmmaers to carry out certain e)cisions or modifications in the film as it thins fit that it may amount to public breach of peace or it may result into hurtin reliious sentiments of any particular community if the film is released as it is. #inally( the Sensor "oard also reser*es riht to e*en refuse to certify the film for public e)hibition if it contains any objectionable contents that harm the public peace and harmony. 1? International aw on Film Censorship and Indian Situation% 'eally speain communication throuh film media is rearded as a form of speech and e)pression in India. rticle 19 of the 7ni*ersal 6eclaration of 12
See Section ? of the !inematoraph ct( 19:2. Section = of the !inematoraph ct( 19:2.
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rticle 19 of 760< “M*eryone has the riht to freedom of opinion and e)pressionK this riht includes freedom to hold opinions without interference and to see( recei*e and impart information and ideas throuh any media and reardless of frontiers. 1: rticle 19 of I!!P< 1. M*eryone shall ha*e the riht to hold opinions without interference. 2. M*eryone shall ha*e the riht to freedom of e)pressionK this riht shall include freedom to see( recei*e and impart information and ideas of all inds( reardless of frontiers( either orally( in writin or in print( in the form of art( or throuh any other media of his choice. ?. The e)ercise of the rihts pro*ided for in pararaph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions( but these shall only be such as are pro*ided by law and are necessary $a% #or respect of the rihts or reputations of othersK $b% #or the protection of national security or of public order $ordre public%( or of public health or morals. 1@ See rticle 19$?% of I!!P<. 1C See rticle 19$1%$a% and 19$2% of the !onstitution of India. 1D The power to mae laws for sanctionin of cinematoraph films for e)hibition is *ested with the Parliament of India accordin to Mntry @; of the 7nion 'ist of the Schedule II under the !onstitution of India. 0owe*er( the States can also mae laws on cinemas under Mntry ?? $ie.( theatres and dramatic performancesK cinemas subject to the pro*isions of entry @; of 'ist I%K of the Sate 'ist but subject to the pro*ision of the central leislation.
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modifications or e*en refuse to sanction the film for public *iewin. ccordin to the ct of 19:2(19 the rounds for the restrictions aainst the films for public e)hibition must be in consonance with rticle 19$2% of the !onstitution of India. It also empowers the !entral ,o*ernment to issue necessary uidelines in this connection.2; The ct of 19:2 also pro*ides for the ppellate Tribunals to hear appeals from the arie*ed parties aainst the impuned orders from the !"#!. The ct of 19:2 also empowers the !entral ,o*ernment to call for the records from the !"#! e)cept the matter pendin before the ppellate Tribunal at any stae to issue the necessary orders as to dispose of the matter and the "oard must comply with such orders immediately. 21 The ct also empowers the !entral ,o*ernment or the 'ocal uthority to ban the e)hibition of a film in any 7nion Territory or a State or any part of it where it may liely to breach law and order and public peace. 22 Section D of the ct of 19:2 pro*ides for the rule main power on the !entral ,o*ernment. The rules pro*ide the procedural details of !"#!( the Scrutiny !ommittee( the
The films ha*e been banned due to *arious issues such as( obscenity( se) *iolence( maintainin public order in the society( respectin reliious beliefs and sentiments and traditional *alues of a particular cultural roup( or the 19
See Section :-"$1% of the !inematoraph ct( 19:2. The uidelines were re*ised in the year 1991.
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film may in*ol*e in critici/in aainst the State on certain subjects under *arious pro*isions. Sometimes( the issue of imposin ban on films may create such a critical situation that the !ourt will ha*e to interfere and sol*e the problem of public law and order. In the mean time *ideo and film pirates tae ad*antae of the situation and reproduce the illeal films by copyin them on a duplicate !6s and 66s and mae them a*ailable in the maret and on the internet at a cheaper cost so that due to the imposition of ban on the mo*ie has created a sense of curiosity in the minds of public so as to now the reason or rather they want to see the scenes which ha*e been in issue. Therefore( besides statutory laws( the Indian !ourts throuh its *arious judments ha*e contributed immensely to build up the jurisprudence in this respect. Some of those important judments related to motion pictures( tele films and T serials. Some of the judments dealin with film censorship issues in India are discussed as under In K.A. Abbas v. Union of India %'( The Supreme !ourt upheld the 1% constitutionality within the ambit of ricle 19$2% of the !onstitution and added that films ha*e to be treated separately from other forms of art and e)pression because a motion picture has the ability of stirrin up the emotions more deeply than any other product of art. t the same time it also cautioned that it should be in the interest of society. 2% In S. Rangarajan v. P. Jagjivan Ram %+( The &adras 0ih !ourt had re*oed the B7-!ertificateB issued to a Tamil film called as BNre Nru ,ramathileB. This mo*ie was challened throuh an appeal before the Supreme !ourt. The film was already awarded with 4ational ward. "ut the film was challened on the round that it was based on reser*ation policy in jobs as such policy was based on caste and was unfair to the "rahmins. It was arued that economic bacround and not the caste should be the criterion. The 0ih !ourt held that the reaction to the #ilm in Tamil 4adu is bound to be *olatile. The Supreme !ourt on appeal o*erruled the 0ih !ourt decision and upheld the freedom of Speech and M)presson. In Ramesh v. Union of India%# , the T serial ATamasC %3 $6arness% 2% depicted the 0indu-&uslim and Sih-&uslim tension before the partition of India. n appeal was preferred aainst the judment of the "ombay 0ih !ourt $which allowed the screenin of the serial% restrain the same as was *iolatin Section : b of the ct of 19:2. It was alleed that the screenin of the T serial would amount to 2=
.I.<. 19C1 S! =D1. $19D9% 2 S!! :C=. 2@ $19DD% 1 S!! @@D. 2C Tamas T serial was based on a no*el Tamas written by "hisham Sahni $D uust 191: F 11 July 2;;?% who was a 0indi writer( playwriht( and actor and won the Sahitya ademi ward for this wor in 19C@. 2:
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*iolation of public order and may therefore incite people to commit offences. Supreme !ourt upheld the 0ih !ourtBs decision and dismissed the petition and commented that the serial is a medium i*in an information to the public as to what was the incident is all about and that they should tae it as a lesson not to repeat such thins in future aain. M*entually the film was issued a A7B certificate and permitted to be released and telecast. In Sree Raghavendra Films v. Government of Andhra Pradesh(2D the e)hibition of the film A ombayB in its Teluu *ersion was suspended in ndhra Pradesh under Section D$1% of the .P. !inemas
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199: $2% .'.6. D1. The 0ollywood creation( adapted from the bestsellin 2;;? no*el The *a 1inci -ode on Jesus !hrist and his relation with &ary &adelene and !hristianity( by uthor 6an "rown sold worldwide in == lanuaes 2;;@ $=% !T! 19?. ?; They are 4aaland( ,oa( Punjab( Tamil 4adu( ndhra Pradesh( +erala and &ehalaya. It was alleed that the film *iolated rticle 2: of the !onstitution of India. The storyline was alleed to ha*e offended the sentiments of the !hristian and &uslim !ommunity. ?1 documentary created by a well-nown nand Patwardhan. The documentary focused on the daner of nuclear war in India. 29
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before the #!T?2. Subse3uently( a AD B certificate was ranted( subject to two cuts and one addition. ain an appeal was preferred by the arie*ed petitioner before the &umbai 0ih !ourt. The 0ih !ourt judes ordered the !ensor "oard to issue ADC certificate without imposin any cuts or main additions to the documentary. The 0ih !ourt held that the two cuts and an addition that was imposed on the documentary were in *iolation of the freedom of speech and e)pression of the petitioner under rticle 19$1%$a% of the !onstitution. Some recent contro!ersial films that are in news today% a% PK and the contro!ersy Initially when P+ was released it was a bi hit and also ot a ood response in the bo)-office and now it has been considered as one of the hihest earnin film both in India and abroad. "ut e*en after that the contro*ersy erupted aainst it and some of the reliious roups started protestin the screenin of the film and the film maers as it is hurtin the reliious sentiments. b% ,SG -,essenger of God% The contro*ersial film the &essener of ,od F &S, is based on the 6era Saccha Sauda chief ,urmeet
The censor board refused to rant clearance certificate as accordin to it the film was unsuitable for public e)hibition. The producer of the film preferred an appeal before the #!T at 6elhi. The matter was fast traced by the #!T and the film has been cleared within 2= hours which normally taes 1: to ?; days as per the procedure. The #!T has directed the !"#! to issue the clearance certificate. The film has been scheduled to be released with a mandatory disclaimer on #ebruary 1?( 2;1: across the country taretin ?(;;; to =(;;; screens. This has resulted into the resination by the !"#! chief &s. 'eela Samson?? followed by mass resinations by the other board members. ?2
See Section :! of the !inematoraph ct( 19:2.
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ccordin to the statement i*en by &s. Samson( the !"#! was under constant pressure from the political parties as they interfere into the functionin of the "oard. She has termed the #!T clearance as a mocery of !"#! and said she had taen the decision to 3uit because of Lrecent cases of interferenceL( Lcoercion and corruption of panel members and officersL of the censor board.
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In the meantime the film has also been banned by the Punjab and 0arayana ,o*ernments from the screenin.
“rticle 2:. #reedom of !onscience and free profession( practice and propaation of reliion. F $1% Subject to public order( morality and health and to the other pro*isions of this Part( all persons are e3ually entitled to freedom of conscience and riht freely to profess( practice and propaateQ rticle 2@. #reedom to manae reliious affairs. F Subject to public order( morality and health( e*ery reliious denomination or any section thereof shall ha*e the riht F $a% to establish and maintain institutions for reliious and charitable purposeK $b% to manae its own affairs in matters of reliionK $c% to own and ac3uire mo*able and immo*able propertyK and $d% to administer such property in accordance with law. rticle 2C. #reedom as to payment of ta)es for promotion of any particular reliion F 4o person shall be compelled to pay any ta)es( the proceeds of which are specifically appropriated in payment of e)penses for the promotion or maintenance of any particular reliion or reliious denominations. rticle 2D. #reedom as to attendance at reliious instruction or reliious worship in certain educational institution. F $1% 4o reliious instruction shall be pro*ided in any educational institution wholly maintained out of State fundsQ ?: Preamble pro*ides for “EM( T0M PMNP'M N# I46I( ha*in solemnly resol*ed to constitute India into a RSNM
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fundamental freedoms uaranteed by the !onstitution of India.
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