Judges should limit their scrutiny to questions of legal interpretation, procedural infractions and the confines of the constitution, and not wade into the territory of moral or artistic judgement
The fiasco over cuts in Udta Punjab was averted due to the timely action of the Bombay high court. The court’s decision to allow the film’s release with a single cut, as opposed to the 89 cuts the Central Board of Film Certification (CBFC) had demanded, was welcomed by the filmmakers and the public at large, as it recognised the apparent flaws in the CBFC as a certification body. However, it seems to paint a somewhat optimistic picture of the ease by which creators can secure their freedom of speech and expression. A persistent systemic issue that merits examination is the rising trend of film certification falling into the hands of the judiciary, and its ramifications.
In recent times, a number of movies have been challenged in the courts of law for offending public and religious sentiment, or for being a potential threat to law and order. Films like PK, Singham Returns, Messenger of God, Kai Po Che, Goliyon ki Raasleela – Ramleela and Delhi-6 have all been challenged for some reason or the other. There have also been cases, such as that of Udta Punjab, where the CBFC and Film Certification Appellate Tribunal (FCAT) orders have been challenged in higher courts. While the courts are available as remedial recourse to anyone who feels that a piece of art may be a threat to their religion, identity or peace and tranquility, the fact that the courts end up playing the role of an ad-hoc censor in some disputes must be examined.
Are courts doubling up as censors?
Although the Indian Cinematograph Act provides legislative sanction to the CBFC and FCAT, the CBFC’s dual role as a certification and censoring body has been widely criticised. Whether the state should censor films or merely examine their aptness for public viewing is a matter of a larger debate involving the historical understanding of the pre-censorship of cinema, and the constitutional position and perspectives on expression of art vis-à-vis their impact on contemporary society. In the absence of such clarity in law and public discourse, courts become involved in an act that is best left to experts.
In fact, in the Srishti School of Art, Design and Technology v. Chairperson, Central Board of Film Certification and Anr case the Delhi high court ruled that in disputes involving film certification, courts have the power, under Article 226, to overturn decisions of expert bodies such as the CBFC and FCAT. It reiterated the position of the Bombay high court in the F.A. Picture International v. CBFC case that the courts can assume this power if the decision of the CBFC encroaches upon the freedom of speech and expression.
What is not clear is the manner in which the courts must exercise their reviewing powers, and if they can go beyond adjudicating on procedural infractions and questions of law. For instance, with Udta Punjab, the court seems to have made a decision based on the arguments of both sides. Interestingly the court, after questioning the CBFC’s power to censor, ruled on the number of cuts to be made in the film – it asked for a public urination scene to be cut – before sending it back to the board for clearance. It is not immediately ascertainable if the court used its independent judgment or expert assistance to decide on the prescribed cut and if this cut was more offensive than the others prescribed by the CBFC. This presents a situation wherein, under the garb of a certification dispute, the moral standards of the CBFC have been substituted by those of the court.
This is not the first instance in which courts have taken on the role of an alternate censoring body. In 2015, the makers of a documentary called The Textures of Loss approached the Bombay high court to appeal against the decisions of the CBFC and the FCAT. The court, after dealing with issues of law and procedure, also decided to rule on the merits of the suggested excisions and deletions. One such proposed deletion was that of a scene involving a father who, upon the death of his eight-year-old son in Kashmir, makes a statement decrying India and the Indian government. The certification bodies argued that such a comment would amount to an offence of sedition under Section 124A of the IPC and, hence, must be deleted. The court indulged this argument and went on to compare the objectionable dialogue to a real case of sedition – individuals charged with sedition for making anti-national statements after Prime Minister Indira Gandhi’s assassination. As interesting as the comparison might be, it is absurd that the court would adjudicate on the fate of a fictional character’s utterances through settled judicial precedent.
There have been many such instances where, due to gaps in the CBFC’s reasoning, the courts have been compelled to go into the merits of suggested deletions. The only question is, is it appropriate for a higher court to analyse a piece of art through the confines of legal principles?
This issue was considered by Justice Hugo Lafayette Black in the case of Kingsley International Pictures Corp. v. Regents of the University of the State of New York (US Supreme Court, 1959), which involved a denial of license to motion picture Lady Chatterley’s Lover. Justice Black observed that “judges possess no special expertise providing exceptional competency to set standards and to supervise the private morals of the Nation. In addition, the Justices of this Court seem especially unsuited to make the kind of value judgments – as to what movies are good or bad for local communities”. He further added that the uncertainty of individualistic determination by judges of a court cannot be guided by fixed standards.
Sustainability of judicial censorship
Owing to the numerous legal challenges brought against films and documentaries over the decades, Indian courts have formulated basic legal principles in order to help them navigate certification and censorship disputes. However, this practice must be discouraged, particularly in appeals to CBFC and FCAT orders. In such cases, courts should limit their scrutiny to questions of legal interpretation, procedural infractions and the confines of the Constitution. Adjudicating on the merits of ordered deletions and modifications is not a question of law, it is a subjective question of artistic expression and must be left to the experts. The fact that Udta Punjab was cleared with one cut raises some questions about the systemic matter of censorship by the judiciary. It is just as possible that the judges could have suggested more than a single cut or none at all. Admittedly, owing to the institutional cracks in the CBFC at present, courts will continue to play watchdog – and rightly so. However, the existence of available judicial recourse cannot be a reason to ignore or delay the much needed overhaul of the CBFC, and the regime of film certification and censorship. While it may seem like the lesser evil given present circumstances, letting courts loose on the moral values of society poses its own dangers in the long run.
Akriti Gaur is a junior research fellow at the Vidhi Centre for Legal Policy, New Delhi.