Vague Censorship Guidelines Behind Ban on Lipstick Under My Burkha

Pahlaj Nihalani, with his love for the Modi government and its agenda, has chosen to take the ultra-conservative view in banning this film.

A still from the banned film Lipstick Under My Burkha.

A still from the banned film Lipstick Under My Burkha. Source: YouTube

Not a single year passes in our country without at least one movie getting banned and a large number of movies getting regressively censored. So long is the list of banned movies in India that Wikipedia has a separate page for it.

The latest victim of oppressive film censorship laws of our country is the award-winning Lipstick under My Burkha, which explores the themes of women’s sexuality and their sexual desires.

The movie was denied a certificate for exhibition by Central Board of Film Certification (CBFC), which cited violation of guidelines number 1(a), 2(vii), 2(ix), 2(x), 2(xi), 2(xii) and number 3. These guidelines were issued under section 5B of the Cinematography Act, 1952, which governs the entire mechanism of film censorship in India. Clause 2 of this provision gives power to the central government to issue “such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition”. Interestingly, as we moved into the 21st century, the number of restrictions in guideline number 2 has increased from 10 heads in 1978 to 19 heads today.

A bare reading of the guidelines makes it clear as to why there are such regressive bans on or censorship of movies time and again. The simple reason is that they are unconstitutionally vague. These are the guidelines as available at the CBFC website:

  1. Guideline 2(i): Anti-social activities such as violence are not glorified or justified.
  2. Guideline 2(iv): Pointless or avoidable scenes of violence … and such scenes as may have the effect of desensitising or dehumanising people are not shown.
  3. Guideline 2(xiii): Visuals or words which promote communal, obstructionist, anti-scientific and anti-national attitude are not presented.

What is an anti-social activity? When can one say that scene of violence is pointless or avoidable? What is meant by anti-national attitude? Obviously there are no simple answers. Such vague guidelines give unfettered power to the certifying authority to be subjective as per its own beliefs and opinions. Coupled with the political nature of appointments right from the chairman of the CBFC to members of regional bodies, they make the entire mechanism of film censorship or certification to be overtly inspired by the narratives or beliefs of the government in power.

The love of Pahlaj Nihlani for Narendra Modi and his government is not unknown to us. There was a point during the UPA’s rule that an overwhelming majority of regional body members were members of the youth Congress. The joint working of these two provisions make the freedom of speech and expression of film makers subject to the whims and fancies of the party heading the government.

In Shreya Singhal v. UoI (Criminal Writ Petition 167 of 2012) the division bench of Supreme Court held section 66A of the Information Technology Act ‘unconstitutional’ for being ‘unconstitutionally vague’. The court held two words “grossly offensive” and “menacing” to be vague, citing how judicially trained minds would find a person guilty or not guilty depending upon the his/her notion of what is “grossly offensive” or “menacing”. The court proved the same by the example of two English cases where on the same set of facts two different courts came to diametrically opposite conclusions depending upon their interpretation of the said vague words.

Similarly, what would count as ‘anti-national’ as mentioned under guideline 2(xii) will depend upon what ‘anti-national’ is in the eye of certifying authority. A liberal chairman may not have banned the current movie as Nihalani did. The lack of objective standards makes interpretation of the guidelines dependent upon the government’s narratives. Per sections 3(1) and 5(1), the appointment of officials is at the complete discretion of central government, with no involvement of any other body or person.

Section 5(1) states that the central government may appoint anyone who is qualified in its opinion to judge the effect of films on the public, to the regional offices. A member or chairman appointed by the government without any external discussion will obviously be inspired by the ideological proclivities of the government, thus in turn making the interpretation of guidelines dependent upon the narratives of the government.

The second disturbing facet of this controversy is the lack of understanding among CBFC members of legal precedents set out by our courts in relation to granting of certificates. This has become a regular practice: the CBFC bans and censors movies with little or no understanding of principles laid down by the courts; the matter then goes to the courts, which, applying the same settled principles (which CBFC should have applied in the first place) finds the decision of the board to be regressive. Be it Udta Punjab or Vishwaroopam, this trend is clearly discernible.

Just like several other cases, the CBFC completely neglected various precedents laid down by courts this time as well while denying a certificate to Lipstick Under My Burkha. CBFC has cited guideline number- 2(viii), which states that “vulgarity, obscenity and depravity offending human sensibilities should not be shown”. It also cited guideline 2(ix) and 2(x), which essentially aim to prevent indecent representation of women.

Indian courts have time and again said that sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral (K.A. Abbas v.Union of India AIR 1971 SC 81). Secondly, courts have also laid down “judging the work as a whole standard” according to which any opinion about the movie should be framed having regard to the main theme of the film and viewing it as a whole, not on the basis of a few isolated sentences. (Phantom Films Pvt. Ltd. v. Central Board of Film Certification & Ors. Writ Petition 1529 of 2016, Bombay High Court. And S. Rangrajan v. P. Jagjivan Ram, 1989 2 SCC 574). In fact, in Bobby Art International v. Om Pal Singh Hoon (1996), the court applied these two standards and allowed frontal nudity scenes in Bandit Queen.

Given the theme Lipstick… is dealing with, it is bound to contain sexually detailed scenes and dialogues. But even then, it should be allowed because, first, sex and vulgarity are not equal. The movie might have sexual scenes in it but it does not mean that it is vulgar because the underlining aim of the movie is not to encourage vulgarity. Judging the movie as a larger whole makes it clear that it furthers the issues of rights of women and their sexuality. How can a movie which has been awardedthe  Oxfam Best Film on Gender Equality be degrading towards women?

If the concern of the CBFC was that the movie contains sexually explicit scenes, it could have certified the movie ‘A’, i.e. suitable for adults only. Why else have different kinds of certificates been envisaged under the Cinematography Act and the Cinematography Rules, 1983?

Incidents like these present us with an opportunity to take up the issue of the much-delayed reforms of film censorship laws. The censor board needs more involvement of film industry and minimum governance from the government. It is pertinent to end here with what Justice D.Y. Chandrachud wrote in F.A. Picture International v. Central Board of Film Certification (2005):

Artists, writers, playwrights and film makers are the eyes and the ears of a free society. They are the veritable lungs of a free society because the power of their medium imparts a breath of fresh air into the drudgery of daily existence. Their right to communicate ideas in a medium of their choosing is as fundamental as the right of any other citizen to speak. Our constitutional democracy guarantees the right of free speech and that right is not conditional upon the expression of views which may be palatable to mainstream thought. Dissent is the quintessence of democracy. Hence, those who express views which are critical of prevailing social reality have a valued position in the constitutional order. History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon.

Will the CBFC pay heed?

Surbhi Karwa is a student at the Dr Ram Manohar Lohiya National Law University, Lucknow

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