Censorship has been a highly debated topic for a long time ever since the inception of visual acts. Thus, it has been commonly defined as an act or a mechanism that establishes a system of restriction over public expression of ideas, opinions, and conceptions. The main objective of censorship is to restore and control what kind of morals and values are portrayed amongst the public at large as the portrayal of an idea or opinion which is inconsistent with the social morals and norms have the capacity to incite violence as well as the breeding of wrong ideals. The government controls various portals of media via censorship.
‘Censorship’ is a term generally used to connote the process of restricting the access of ideas and information in apprehension that it may disturb the public peace. In India, Article 19 (1) (a) of the Constitution of India provides for the freedom of speech and expression. The constitution is silent as to the medium of communication of ideas. Nonetheless, this freedom includes the freedom to exhibit motion films. However, this right is not an absolute one. The state can impose the restrictions on the content if it is against the interests of public policy, foreign relations, sovereignty and integrity of the state, public order, decency and morality, or in relation to contempt of court, defamation or incitement of an offense provided that such restriction is reasonable.
The CBFC is a statutory body which regulates the public exhibition of films in India according to the provisions under the Cinematograph Act, 1952.
The Cinematograph Act of 1952 enshrines certain guidelines that tame the public expression of ideas, opinions and imagination via films by filmmakers. Cinema has opened up to new possibilities and debatable themes in the social and political arenas. With the rapid technological advancement, it is easy to abuse the wonders of technology and portray themes that are hurtful to social conformations
Rule of Law
The imposition of censorship follows the doctrine of the rule of law, which is the basis of determining the constitutional validity of any administrative action. The doctrine of the rule of law states that every administrative action must be undertaken following due procedure established by law.
The censorship falls within the right to freedom of speech and expression, due to lack of any clarity over medium of communication of ideas in the clause of Article 19(1)(a). The fundamental rights are not absolute in nature and hence, reasonable restrictions are impediment to this right. The censorship process, intra vires to the provisions of the restrictions provided under Article 19(2), are valid in consonance to the doctrine of rule of law.
Establishment of Board
Section 3 of the Act states that the Central Government has the authority to constitute a Board of Film Certification consisting of a Chairman and other members. The Board is established to watch the pre-released movies and sanction them suitable for public exhibition.
The Central Government has the power to decide the salary of the Chairman of the Board, and the members receiving salaries according to the meetings’ attendance of the Board.
Objectives of Film Certification
Section 5B (2) lays down the principles to be followed by the CBFC while sanctioning films. The guidelines require the CBFC to ensure that-
- the medium of film conforms to the values of the society.
- creative freedom or artistic expression shall not be unreasonably curbed.
- the certification must be responsive to social change.
- the film must provide clean and healthy entertainment.
- the film must be cinematically of a decent standard and is of aesthetic value.
- The CBFC must judge the film in its entirety and not from a one-track biased perspective.
Functions of the CBFC
The provisions of the Cinematograph Act, 1952, determines whether a film is fit for public exhibition or not. The CBFC must satisfy this question on the basis of a few parameters while certifying a film. There are 4 categories under which the CBFC can classify and certify a film or even may not sanction the film at all. The CBFC has the liberty of reasonable discretion.
S- for public exhibition restricted to members of any profession or any class of persons
U- for unrestricted public exhibition or Universal viewership
A- for public exhibition restricted to adults only (persons who have attained majority, completing their 18 years of age)
U/A- for unrestricted public exhibition with an endorsement of caution to the parents or guardians of children below 12 years of age.
Under the provisions of the Act, just like the Board can decide to not certify a certain film or even disapprove a particular scene of the film; it is competent enough to even order the deletion of a film in its entirety or a particular scene. Sometimes the Censor Board take steps to assess the reactions of the public in order to determine whether the principles on the basis of which films are certified need any change or not. There are provisions under the CA, 1952 that empower the CBFC to:
hold symposia or seminars of film critics, community leaders, film writers and any other relevant person engaged in the film industry.
Facilitating local or national surveys in order to understand the impression of different types and genres of films and their impact on the public mind.
Examination of films
Section 4 of the Act states the procedure to examine the films by the Board before the release. The Board follows a prescribed procedure where the person with the intention to release any film provides an application to the Board for a certificate after an examination of that film through screening by the Board.
The film is sanctioned for public exhibition after the complete examination process is achieved. It also provides a sanction for movies according to the target audience that involves viewership restricted on the basis of the content of the movie. It involves movies restricted to adults exclusively. The Board has the authority to make modifications in the film that it deems fit before sanctioning the movie for public exhibition. It can directly refuse the movie from public exhibition as well.
All the actions by the Board can be taken after providing a fair chance to the maker of the movie to explain his views on the matter.
Section 5 of the Act provides the Central Government with the power to establish advisory panels at regional centres to assist the Board in the discharge of their duties. The membership is based on the discretion of the government with each member qualified to evaluate the effectiveness of every movie on the public.
The number of regional officers at a regional centre is not specified in the provisions of the legislation, thus, the government is at the liberty to appoint as many as it thinks fit. The rules shall be made in such a manner that associates the regional officers in the examination process of the films. The Board can consult the advisory panels with respect to any film. The advisory panels are endowed with the duty to examine the films and make recommendations to the Board according to the rules made on this behalf.
The advisory panel members are not entitled to any salaries but are provided fees and allowances as prescribed.
Landmark judgements on censorship of movies in India
K.A. Abbas v. Union of India, 1970
The first instance of doubts arising regarding the censorship clause in India was in K.A. Abbas v. Union of India. In the case, the Supreme Court evaluated the practice of pre-censorship of a cinematograph in consonance with the fundamental right to freedom of speech and expression. The facts of the case involved a petition in the court regarding the ‘U’ certification for a film which was refused by the Board. The interests of the investors were in question on the guidance as to the Constitutional aspect of pre-censorship.
The court observed that the censorship of films is a constitutionally valid practice on the grounds mentioned in Article 19(2) of the Constitution. It provided a distinction among the films and other forms of art as a cinematograph has the ‘ability to stir up emotions more deeply than any other product of art.’
S. Rangarajan v. P. Jagjivan Ram, 1989
In S. Rangarajan v. P. Jagjivan Ram, a film was issued a ‘U’ certificate by the Board until it was revoked by the Madras High Court and also banned the public exhibition of that movie amid the protests against it. The film dealt with a very sensitive topic of reservation policy in Tamil Nadu. The movie was critically acclaimed as it received the National Award by the Directorate of Film Festival of the Government of India.
The matter was heard by the Supreme Court on an appeal where it was observed that a movie cannot be restricted from the public exhibition on the threat of demonstrations or protests by the general public. These protests are beyond the reasonable restrictions placed under Article 19(2) of the Constitution. A mere intimation of violence by the public shall not be a restriction on freedom of speech and expression as it is a duty of the state to protect these fundamental rights at any cost.
Anand Patwardhan v. Central Board of Film Certification, 2003
A case regarding a filmmaker’s harassment by the Board. In Anand Patwardhan v. Central Board of Film Certification, the Censor Board examined a film and ordered the filmmaker to carry out two cuts and one addition for the movie to be eligible for a ‘U’ certificate. The petition was filed on the directions of the Censor Board, where it was observed that the cuts ordered were an act of abuse of power by the Censor Board to harass the filmmaker which was in violation of the right to speech and expression through cinematograph under Article 19(1)a.
Sree Raghavendra Films v. Government of Andhra Pradesh, 1995
In another case, Sree Raghavendra Films v. Government of Andhra Pradesh, a film’s exhibition in the Telugu language was suspended by the provisions under Section 8(1) of the Andhra Pradesh Cinemas Regulation Act, 1955, even when the Censor Board sanctioned the unrestricted exhibition of the movie. The reason behind the suspension was cited as it may hurt sentiments of certain communities. The court observed that the authority that ordered the suspension did not even watch the movie and hence, it quashed the order on grounds of arbitrariness.
Bobby Art International v. Om Pal Singh Hoon, 1996
This case is better known as the Bandit Queen case. The Supreme Court while dealing with this case once again upheld the freedom of speech and expression under Article 19(1) through cinematograph. The court refused the restrictions on the exhibition of the film on grounds of obscenity. The petitioner contended that the exhibition of the film shall be restricted for its nature of depiction of the life story of a bandit, Phoolan Devi in the film and the picturisation of rape scenes were also questioned along with the image of Gujjar community harmed with some particular scenes in the movie.
The Supreme Court observed that a film cannot be restricted simply because the content is obscene, indecent or immoral. The abusive language or nudity in the movie was to further the case regarding the depiction of the reality of the life story of Phoolan Devi. The movie was provided with the ‘A’ certification under Section 5(B) with restricted viewership for adults only.
A cinematograph is an art form that is used to express emotions, ideas, opinions and thoughts by an individual. It is protected under freedom of speech and expression until a reasonable restriction is placed on its enjoyment under the provisions of Article 19(2). The censorship is a process that is explained in the Cinematograph Act, 1955 while providing the complete procedure. There are numerous landmark judgements in this regard which have mostly arisen out of a conflict between the fundamental right to speech and expression and the restrictions imposed in consonance with the restrictions enshrined in the Constitution for the right. It is a very delicate matter as it is the obligation of the state to protect the fundamental rights of its citizens and every action while sanctioning the censorship shall be equivalent to the reasonable restrictions.
B.M.S College of Law