THE KERALA STORY: CRITICAL ANALYSIS OF CENSORSHIP AND “SUPER” CENSORSHIP IN INDIA

ABSTRACT

The Central Board of Film Certification (CBFC), functioning under the authority of the Cinematograph Act of 1952, holds the responsibility of certifying films within India. While the classification of films based on age ratings remains a vital aspect, the CBFC’s exercise of certain powers often displays arbitrary tendencies, influenced by prevailing public morality and conservative perspectives. Such practices of censorship enacted by the CBFC raise substantial concerns regarding their practical implementation, leading to the curtailment of artistic expression for filmmakers and the encroachment upon their constitutionally protected freedom of speech and expression. This research paper endeavors to undertake a rigorous critical analysis of the CBFC’s censorship procedures, examining them through a comprehensive lens. Furthermore, it conducts an in-depth investigation into the CBFC’s imposition of bans on films based on considerations of public morality. In the context of India, this paper sheds light on how governing political parties exploit their political influence to prohibit films that have already acquired certification from the CBFC, thereby giving rise to a phenomenon that could be termed as “Super Censorship.” The research paper presents an incisive critique of this phenomenon.

KEYWORDS

CBFC, Censorship, The Cinematograph Act 1952, Ban

INTRODUCTION

The film ‘The Kerala Story’ was released on May 5th, 2023, dealing with the issues of love jihad and religious conversion, sparking a wave of political controversy. While some individuals and politicians perceived it as a targeted ‘propaganda movie’ against a specific religious community, others criticized its portrayal of Kerala in a negative light. Consequently, the government of West Bengal took the step of banning the film, while BJP-led governments in Madhya Pradesh, Uttar Pradesh, and Uttarakhand not only supported it but also granted it tax exemption.[1] They hailed the film as a socially significant work that raises awareness about love jihad and terrorism.[2]

These contrasting actions among states unequivocally demonstrate the influence of differing political ideologies and personal biases of leaders on their decisions to either ban or provide favorable treatment to the film. The Supreme Court intervened by staying the West Bengal ban, emphasizing that the maintenance of law and order is the responsibility of the state government, considering the prior certification granted by the Central Board of Film Certification (CBFC).[3] Further, the Court directed the Tamil Nadu government to ensure the security of theaters screening the movie as exhibitors who intended to screen the film received threats. Echoing a similar sentiment, the former chairman of CBFC asserted that once a film receives certification from the CBFC, state governments are not authorized to prohibit.[4]

RESEARCH METHODOLOGY

This research paper is primarily analytical in nature. The research was mainly conducted using secondary sources, including news articles, blogs, and journal articles. The primary sources utilized for this research include statutes and case laws.

REVIEW OF LITERATURE

 Critical Analysis Of “Censorship” In India

The Central Board of Film Certification (CBFC) is established under Section 3[5]of the Cinematograph Act, 1952. Following an examination, the CBFC categorizes films into three classifications: U (unrestricted viewing), U/A (parental guidance for children under 12), A (restricted to adults), and S (restricted to special audiences). Section 5B[6]of the Act delineates the criteria upon which the board may decline certification. These criteria encompass the security interests of the state, diplomatic relations with foreign nations, public order, decency and morality, defamation or contempt of court, or the potential to instigate criminal activities.

In the case of State of Maharashtra vs V.G. Row[7], the court held that restrictions must be interpreted strictly and narrowly. However, the Indian censor board operates with a paternalistic stance, presuming its citizenry lacks maturity. In cases dealing with films such as “Fire” and “Unfreedom,” which explore same-sex relationships, and “The Pink Mirror,” which delves into transsexual relationships, the CBFC exhibits an excessively conservative stance. It refuses certification for films that engage with themes of gender and sexuality, citing concerns of public morality.[8] While Indian citizens possess the right to elect representatives and the freedom to decide whether to indulge in smoking or alcohol consumption, they remain subject to childlike treatment when it comes to determining their viewing choices. In the present digital age, banned films are easily accessible through the internet and various streaming platforms, allowing every citizen to access them (censorship in the contemporary digital era).[9] Filmmakers who fall victim to the CBFC’s constraints have no choice but to release their creations on the internet, thereby significantly impacting their revenue streams. This raises the pertinent question: In an era where a plethora of content is readily available at our fingertips, is it necessary for a small group of individuals to dictate what a mature adult can watch?

There have been numerous instances wherein the Central Board of Film Certification (CBFC) has assumed the role of moral guardian of the public and has wielded its power in an irrational manner. Despite granting “Udta Punjab” an ‘A’ certificate, the board ordered 13 deletions and 52 cuts, claiming that the film is against the sovereignty and integrity of India and promotes obscenity and vulgarity, among other reasons. However, the Bombay High Court cleared the film with just a single cut and an ‘A’ certificate. The court not only dismissed all the grounds and reasons put forth by the board but also criticized them for their failure to adhere to the established principle of comprehensively evaluating the film as a whole. Given that the film delves into the issue of drug menace and drug action, the board’s insistence on making cuts to dialogues and visuals merely due to the presence of abusive language is unreasonable.[10] The court rightly emphasized the significance of granting filmmakers the freedom to determine the content of their films and the approach they wish to adopt in addressing the subject matter. The court asserted that the CBFC cannot arbitrarily demand deletions simply because they believe a scene is unnecessary or personal disapproval. Spectre,” “NH-10,” and “Vishwaroopam” have all faced harsh trimming at the hands of the CBFC, citing highly subjective criteria delineated in the Act. Trimming a film despite conferring it with it an ‘A’ certificate fundamentally undermines the purpose behind such a classification.

When the CBFC compels filmmakers to trim important portions of their films, it disrupts the entire coherence and integrity of the film. Creative individuals harbor a profound attachment to their artistic creations, and witnessing their creations being brutally torn apart profoundly impacts them. For instance, the filmmaker of “Kava Avay Dey” was directed to make 21 cuts, resulting in the removal of 20 minutes from the original 93-minute film.[11] The entire essence of the film was destroyed.

CBFC: Moral Gaurduin Of Indian Citizens!

A multitude of films has faced bans due to their deviation from societal or public moral standards. Films that delve into unconventional themes and challenge established moral norms are frequently met with public outrage and are often prohibited by governmental or CBFC authorities. The inclusion of Section 5B in the Cinematograph Act of 1952 empowers the CBFC to withhold certification for films or specific segments thereof if they are deemed to transgress public morality, decency, or order. This provision, however, raises substantial concerns as it encroaches upon the cherished freedom of expression enjoyed by creators and hampers the rights of minority groups to access and engage with such films. A noteworthy illustration of a banned Indian film is “Unfreedom: Blemished Light,” which dares to explore subjects such as same-sex relationships and religious fundamentalism. The decision to prohibit this film was justified with the excuse that it might awaken perverse passions among its viewers.[12]

Similarly, “Fire,” a remarkable production featuring Nandita Das and Shabana Azmi, stands as one of the pioneering movies that dauntlessly portray a lesbian relationship. Although the CBFC ultimately granted certification for the film, it did so on the condition that the name of the lesbian protagonist be altered from Sita to Nita.[13] This specific incident highlights the proclivity of the CBFC to impose arbitrary modifications on films, conforming them to prevailing notions of public morality. Despite enjoying a triumphant three-week run in packed theaters, “Fire” encountered opposition from extremist factions like the Shiv Sena, who resorted to acts of violence, including vandalizing theatres and burning. Subsequently, he film was withdrawn from theaters and subjected to re-certification. Such actions encroach upon the fundamental principles of freedom of speech and expression.

The fact that the film enjoyed packed theaters for three consecutive weeks in metropolitan cities indicates that there existed a fervent audience who not only cherished the film but actively supported it, even though they may have constituted a minority. This particular group of individuals is unjustly deprived of the opportunity to experience the movie due to its failure to align with the preferences of a larger segment of society. In the case of Secretary, Ministry of I & B vs. Cricket Association[14], the court held that films not only serve as a form of entertainment but also function as a medium of information, thereby endowing citizens with the right to access and receive information. These rights are compromised on account of statutes that govern the certification of films. Therefore, the minority group of film enthusiasts who genuinely appreciated the movie possess a legitimate entitlement to watch it, while the filmmaker rightfully enjoys the freedom to express her creative vision. Therefore, it is unequivocally erroneous to impose a ban on a film solely based on its divergence from prevailing notions of public morality.

The film “Lipstick Under My Burkha” dealt with subjects of women’s sexuality and Indian feminism. However, the CBFC’s refusal to grant clearance to the film serves as a glaring testament to the board’s sexist and patriarchal functioning.[15] Unconventional themes like same-sex relationships and women’s sexuality often incur the wrath of the CBFC, a response that is wholly undeserved.

“Kamasutra: A Tale of Love” is banned in India by the CBFC due to its nudity. This Indian film, based on Indian literature and titled “Kamasutra,” found wide acclaim on the international stage, garnering numerous awards.[16] Such instances illustrate the glaring differences in public morality standards across different regions. The Indian people are being treated as mere “populations,” objects of government control, rather than as citizens.[17] The government’s attitude toward its citizens assumes a patronizing parental role.

Indians possess the capacity to engage with and process mature content, much like individuals from Western countries. Therefore, it is high time for the CBFC and the government to treat Indian citizens as adults and refrain from censoring content deemed appropriate for an “A” rating, thereby upholding the principles of freedom of expression. If public morality were to serve as the yardstick for determining acceptability, it would inevitably lead to the discrimination of minority groups, as the embrace of “public morality” essentially aligns with “popular” morality. In this regard, constitutional morality should be accorded precedence over public morality. Dr. Ambedkar firmly believed that constitutional morality serves as a remedy against the excesses of majoritarianism. It is crucial to acknowledge that “popular” morality undergoes transformation over time, rendering it impossible to claim that it represents the pinnacle of opinion or perspective at any given moment. There will always exist minority opinions and perspectives that deserve to be brought to the forefront. In comparison to the time when “Fire” was released, contemporary society exhibits greater acceptance of same-sex relationships. The gradual societal shift toward embracing same-sex relationships suggests that their acceptance may eventually become ingrained within “public” morality. Thus, it becomes evident that public morality evolves with time. Hence, the act of banning a film simply because it challenges prevailing notions of public morality, especially when it is ahead of its time, is not only unreasonable but also problematic.

Constitutional morality should take precedence over public morality, as the principles embedded within the constitution transcend temporal limitations. These principles, thoroughly deliberated and examined, possess an enduring quality that withstands the test of time. Consequently, the principles governing freedom of speech and expression warrant greater emphasis than popularly derived notions of morality.

As reiterated on numerous occasions, the Supreme Court has consistently upheld the primacy of constitutional morality over public morality. Cases such as the Sabarimala case, Naz Foundation case, and Navtej Singh Johar case exemplify the Court’s steadfast commitment to constitutional morality in opposition to public morality. This principle also extends to the realm of cinema, as exemplified by the Viacom 18 India Pvt Ltd vs Union of India case.[18] In the context of the ban imposed on the screening of the film “Padmaavat” in four states, the Court intervened by granting a stay on the ban, deeming it a grave transgression of constitutional conscience to hinder the exhibition of cinema, creative content, due to public outrage.

Critical Analysis Of “Super Censorship” By State In India

Numerous instances exist where ruling parties have imposed bans on films due to their ideological leanings or for political motives. This is termed by a few people belonging to film fraternity as ‘super censorship,’ an additional layer of censorship after being certified by the CBFC. The 1975 movie Aandhi serves as a perfect example of how politicians have prohibited or compelled alterations in films. The central character of the film was reportedly inspired by Indira Gandhi, the Prime Minister of India during that period. Despite initially obtaining certification and being released, the film faced a ban after 20 weeks.[19] Subsequently, when the Janata Party came to power, certain scenes were reshot, and the film was released. This specific instance serves as a striking demonstration of how the ruling party can manipulate and censor films that make them uncomfortable, despite these works being a reflection of filmmakers’ creative expressions. The film’s release following the Janata Party’s ascent to power underscores how ruling parties use films for their own political gain.

“Kissa Kurisi Ka” is a political spoof film that explicitly declares its fictional characters and entertainment-oriented intentions. However, despite these aspects, the film faced rejection from the CBFC due to substantial pressure from the ruling political parties at that time. This incident highlights how political authorities exploit film censorship as a means to suppress movies that may challenge their actions and ideologies.[20] The film, a daring political satire unafraid to shed light on the harsh truths of the political landscape, became a target of the ruling parties. Subsequently, Sanjay Gandhi, son of the former Prime Minister, along with the then Information and Broadcasting Minister, were found guilty of confiscating prints from the CBFC and destroying them .[21]  This case exemplifies the use of political influence over the CBFC, an institution intended to function as a quasi-judicial body, to prevent a film from being released. Notably, there have been instances where politicians banned films as an act of revenge against actors who criticized or made unfavorable comments about the ruling parties. For instance, Kamal Hassan’s “Vishwaroopam” faced a ban imposed by the then Chief Minister of Tamil Nadu, Jayalalitha, due to political statements made by the actor. The government justified this action by claiming potential law and order issues.[22] Vijay’s film “Thalaivaa” suffered an unofficial ban for similar reasons.

 In 2011, the Supreme Court, while lifting the ban on Prakash Jha’s “Aarakshan,” asserted that states cannot prohibit a film cleared by the CBFC. In response to the government’s argument that the sensitive issue of reservation could lead to law and order problems, the court emphasized that it is the government’s responsibility to effectively maintain law and order, and open discussions on social issues are crucial for a healthy democracy.[23] Despite supreme court’s ruling governments banned movies claiming potential law and order issues, which are mere speculations.

“Fanaa,” a film featuring Aamir Khan and Kajol, encountered an unofficial prohibition in Gujarat, not due to its thematic content, but as a consequence of the Bharatiya Janata Yuva Morcha’s (BJYM) dissatisfaction with Aamir Khan’s stance on the Narmada Bachao Andolan (NBA).[24] The disapproval of Aamir Khan’s opposition to heightening the Sardar Sarovar Dam among certain political authorities in Gujarat led to the film’s ban. When the governmental apparatus assumes the role of a “super censor,” it invariably culminates in the proscription of films that scrutinize the ruling party. Such a “super censorship”  by the state constitutes an encroachment upon the constitutionally enshrined freedom of speech and expression, as stipulated by Article 19(1)(a) of the Indian Constitution.

There is a global audience interested in watching movies based on international political events. Collaborative ventures with foreign film productions in crafting narratives centered on Indian political episodes hold immense potential for bolstering the growth trajectory of the Indian film industry. However, the Indian government objected to Universal Studios’ endeavor to produce a film set during the British India era. Spearheaded by director Joe Wright and featuring thespians from Hollywood, the proposed film was ultimately abandoned owing to the Indian government’s vehement protest against its exploration of the alleged affair between Nehru and Lady Edwina Mountbatten.[25] This government-led opposition attracted criticism from both the media and historians, considering that the alleged romance has constituted a subject of extensive historical discourse. The prevailing regime of “political censorship” imposed by governments serves as a hindrance to the advancement of the Indian film industry, impeding the emergence of cinematic narratives discussing political themes from the shadows of obscurity.

“Ore Oru Gramathile,” a Tamil movie, was banned by the government despite receiving a U certificate from the CBFC. The film delved into the issue of reservation and advocated for reservation based on economic status rather than caste.[26] The movie faced protests from lower caste groups. In the case of Rangarajan vs Ram, which addressed the government’s ban on “Ore Oru Gramathile,” the Supreme Court delivered a significant ruling. The court acknowledged that conflicting views can and should be expressed, even if they may not be deemed valid, as they are relevant. The court rightly recognized that a filmmaker’s message may not be approved by others, but they have the right to put forth counter opinions on any issue. The state cannot suppress open discussion, dissent, or expression, as doing so would be detrimental to democracy. In his book “On Liberty,” J.S. Mill argued that in a healthy democratic society, individuals should be free to generate and express new ideas. Debate and discussion are vital for societal progress. Expressing and debating dissenting views, opinions, and ideas contribute to the pursuit of the “full truth.” If dissenting opinions are stifled, dominant ideas will prevail, impeding societal progress. Therefore, it is crucial that the right to freedom of speech and expression, enshrined in Article 19(1)(a), goes beyond being a mere formal principle. To achieve substantive democracy, this principle must be transformed into a tangible reality. The state should act as a facilitator in realizing this objective rather than a suppressor. Filmmakers should not be hindered from expressing counter opinions to popular beliefs.

Suggestions And Conclusion

The increasing politicization of the CBFC demands immediate attention to remove governmental influence. The use of public morality as a basis for film bans or trimming should be abolished to prevent moral policing by the CBFC. Films that receive an “A” certificate should remain untouched while trimming should only be ordered by the CBFC when a filmmaker seeks a “U” or “U/A” certificate. This allows for the existence of an uncensored “A” version restricted to audiences below 18 years of age, alongside a trimmed “U” or “U/A” version as directed by the censor board. Adults can then choose which version to watch, and the decision to create two versions should lie with the filmmaker.

It is crucial to exercise extreme caution when implementing “pre-censorship” measures, even for films not classified as “A.” The CBFC should not possess the authority to ban films outright. Instead, in cases involving explicit nudity like “Kamasutra: a tale of love” and “Fifty Shades of Grey,” the CBFC’s role should be limited to ensuring audience awareness of the film’s content without resorting to a complete ban. Introducing additional categories of film certification would enhance audience understanding of a film’s nature, facilitating informed decision-making. Ultimately, the choice to view a film should be left to the viewer, with the CBFC solely responsible for providing comprehensive information to viewers prior to making their decision.

After certification, the state should not have the power to ban any film. It is the duty of the state to safeguard freedom of speech and expression while promoting the unrestricted expression of diverse perspectives. Ironically, there have been instances where politicians have resorted to threatening exhibitors intending to screen films. Stringent action must be taken against politicians or extremist groups employing violent means to obstruct film exhibitions. The state should  not have any authority over films, both before and after their release.

WRITTEN BY- Sai Rishi Katari, 2^nd Year student, NALSAR University of Law, Hyderabad

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[1] “The Kerala Story: Know states that declared movie tax free vs states that banned controversial film”, DNA India, (May, 10, 2023) https://www.dnaindia.com/india/report-the-kerala-story-know-states-that-declared-movie-tax-free-vs-states-that-banned-film-uttar-pradesh-bengal-3041210

[2] “‘The Kerala Story’: See which state has banned the movie and which has supported it”, EconomicTimes, (May, 14 ,2023), https://economictimes.indiatimes.com/news/new-updates/the-kerala-story-see-which-state-has-banned-the-movie-and-which-has-supported-it/articleshow/100097765.cms

[3] “‘Prohibition order not tenable’: SC stays West Bengal government’s ban on ‘The Kerala Story’“, Times of India, (May, 18, 2023), https://timesofindia.indiatimes.com/india/prohibition-order-not-tenable-sc-stays-west-bengal-governments-ban-on-the-kerala-story/articleshow/100326856.cms?from=mdr

[4] Bharti Dubey, “The Kerala Story: Is it justified to ban a film after being certified by CBFC”, Times of India, (May, 13, 2023), https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/the-kerala-story-is-it-justified-to-ban-a-film-after-being-certified-by-cbfc-bigstory/articleshow/100203646.cms?from=mdr

[5] Cinematograph Act, 1952, S. 3.

[6] Cinematograph Act, 1952, S. 5B.

[7] State of Madras v. V.G. Row, (1952) 1 SCC 410

[8] Interplay of Freedom of Speech and Censorship of Movies in India, (2019) PL March 68

[9] Censorship in the Contemporary Digital Era : Manhandling of Literature by Law, 3 CMET (2016) 1

[10] The Censorious Scissors, 4 CMET (2017) 52

[11] Vijay G., A Critical Analysis on Censorship Issues in Indian Cinema & Its Challenges, 3 INT’l J.L. MGMT. & HUMAN. 481 (2020).

[12] Tanu B. Masand, “8 Indian movies banned list: Unfreedom to Paanch, Films you can watch on Netflix, Amazon Prime, And Other OTT platforms “, Times Now News, (May, 29, 2023) https://www.timesnownews.com/entertainment-news/8-banned-indian-movies-list-unfreedom-to-paanch-banned-films-you-can-watch-on-netflix-amazon-prime-and-other-ott-platforms-article-99088031#:~:text=Water%2C%20Gandu%2C%20Paanch%20Lipstick%20Under,OTT%20%7C%20Entertainment%20News%2C%20Times%20Now

[13] Rajeesh Nair, “8 Controversial movies that were banned in India”, Filmy Keeday, (May, 18, 2023), https://timesofindia.indiatimes.com/india/prohibition-order-not-tenable-sc-stays-west-bengal-governments-ban-on-the-kerala-story/articleshow/100326856.cms?from=mdr

[14] Secretary, Ministry of I & B vs. Cricket Association (1995) 2 SCC 161

[15] Swagat Baruah, Cinema on Trial: Doctrine of Prior Restraint in Censorship, 7 Christ U. L.J. 23 (2018).

[16] Supra note 13

[17] Supra note 15

[18] Viacom 18 Media (P) Ltd. v. Union of India, (2018) 1 SCC 761

[19] “Films that were banned for political reasons“, Times of India, https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/photo-features/films-that-were-banned-for-political-reasons/films-that-were-banned-for-political-reasons/photostory/46966266.cms

[20] Ibid

[21] Ibid

[22] “Can Censor Board or govt ban a film? What’s the criteria?”, One India, (May, 01, 2023) https://www.oneindia.com/india/can-censor-board-or-govt-ban-a-film-what-s-the-criteria-3554444.html?story=6

[23] Dhananjay Mahapatra, “States can’t ban film cleared by censor board: SC”, Times of India, https://timesofindia.indiatimes.com/india/states-cant-ban-film-cleared-by-censor-board-sc/articleshow/9666760.cms?from=mdr

[24] Supra note 19

[25] Arpan Banerjee, Political Censorship and Indian Cinematographic Laws: A Functionalist-Liberal Analysis, 2 DREXEL L. REV. 557 (2010).

[26] Ibid