All films, music videos etc meant for public exhibition in a cinema hall irrespective of their length or format – celluloid, digital or on DVD etc – are subject to certification by the Central Board of Film Certification (CBFC) established under the Cinematograph Act 1952.
The Cinematograph (Certification) Rules, 1983, and the guidelines issued in 1991 by the Central government prescribe the regulatory structure in accordance to which CBFC discharges its functions. Through my writ petition(C) No. 187 of 2017, admitted by the Supreme Court on Monday, I have challenged the constitutional validity of certain provisions of all these three codifications which infringe the fundamental rights of artists as well as audiences. No one had challenged the vires of these provisions for the past 47 years.
In light of new technologies and developments, considering the paradigm shift in the mass media, it is the need of this hour that we redefine, reclaim and resurrect the contours of our individual freedoms. Law must adapt itself to cope with new situations if it has to satisfy human needs and to meet the contemporary problems of life.
A short recap of history
In 1970, in the matter of K. A. Abbas vs Union Of India, a five-judge bench of the Supreme Court ruled that cinematographic films in theatres were the most influential media of mass communication affecting the social mind and, therefore, the exercise of censorship under the Cinematograph Act was valid and necessary. The social situation based on which that decision was given has changed to such an extent that the decision needs to be overruled by a larger bench of the Supreme Court. Today, modern technology makes dissemination of information available in real time through a variety of media, many of which are either not regulated or if regulated, not subjected to pre-censorship.
From 1980, India had Doordarshan as the only television broadcaster. Today, we have more than 800 registered TV channels along with 1000s of local cable channels. We have over 780 million TV viewers in India. By June 2017, the number of internet users shall reach about 450 million. With the onslaught of television and internet, we are increasingly “interfacing” to predominantly cultural data encoded in the digital form. Thus, it‟s no longer the ‘cinema’ but ‘the digitised world’ which is the 21st century media machine binding the universe. The direct corollary of this is that if the content presented/exhibited/uploaded on TV or the internet is free of censorship or pre-censorship, what is the rationale behind the same content getting cut/altered/deleted and thereby being censored when and if exhibited in a cinema hall? This amounts to discrimination barred by Article 14 of the constitution. The attack on our right to equality is being challenged in this context for the first time.
Documentaries which are factual depictions of real life events are closer to news reports than fiction films. If the broadcast of news and investigative reports are presented on television and internet without any pre-censorship, the subjection of documentaries to pre-censorship amounts to discriminatory treatment of similar entities – which is violative of our fundamental rights ensured by Article 14, Article 19(1)(a), and Article 21 of our Constitution. None of the above laws define a ‘documentary’, nor are there any specific rulings by the Supreme Court on this issue.
Since the decision in Abbas, the power of certification as a means of pre-censorship has been subjected to large scale abuse owing to ambiguity and lack of clear guidelines of how the power is to be exercised. As a result, the CBFC routinely demands cuts of scenes or dialogue – failing which it denies certificates to films for arbitrary reasons:
- Remove the words “Mann ki Baat” from a dialogue in the film Sameer
- Get a ‘no objection certificate’ from the Prime Minister’s Office for the title of the film Modi Ka Gaon
- The film Lipstick in my Burkha is unsuitable for release since “the story is lady-oriented, their fantasy above life. There are contentious sexual scenes, abusive words, audio pornography , among others.
Milder abusive words were demanded to be cut from many films whereas films like Parched, Saat Uchakkey, Udta Punjab were cleared with an ‘A’ certificate but without any cuts. On July 31, 2015, the CEO of the CBFC informed the board about the audit observations made by the Comptroller and Auditor General on the working of the board. He said that “the audit of 2014-15 had observed that CBFC converted 172 ‘A’ films into ‘UA’, and 166 ‘UA’ films into ‘U’ during 2012-15, without taking any law or provision into account. It had also observed that there were inconsistencies in the time taken by CBFC for issue of certificates to various producers.”
The Aurangabad bench of the Bombay high court has recently set another bad precedent which was not challenged by the producers of the film Jolly LLB. After the certification of the film by the CBFC, the bench demanded four cuts in a scene citing a possible “defamation to the judiciary”. Till now, the judiciary has played a role of a saviour of citizens’ fundamental rights. With this decision, one more predator of artistic freedom has emerged which needs to be seriously scrutinised.
What I am asking the court to do
The writ petition I have filed is challenging the constitutional validity of Sections 2, 3(1), 4(1)(iii), 5(1)&(2), 5A(1), 5D(5) of the Cinematograph Act, 1952, and Guidelines # 1 & 2 dated December 6th, 1991 formed under Section 5B(2) of the said Act, along with Rules 3, 7(3), 22(2) &(8), 24(2), 32, 33(2) and 43(6) of the Cinematograph (Certification) Rules, 1983 on the grounds that those are violative of Articles 14, 19 and 21 of the Constitution of India.
Since we are all bound by the constitution, Article 19(2) of which imposes “reasonable restrictions” on free speech, we are not challenging the entire Cinematograph Act but merely some of its provisions.
Among other reliefs, my petition specifically seeks:
- to quash Section 4(1)(iii) which empowers the CBFC to carry out excisions amounting to pre-censorship, which is an unreasonable restriction.
- to declare the present CBFC incompetent to carry on functions under the Cinematograph Act.
- to declare Section 5-B inapplicable to section 4(1)(iii) since the guidelines under Section 5-B are for ‘certification’ and not for ‘pre- censorship’.
- to quash the said guidelines which are abstract, vague, imprecise leading to rampant erratic, subjective interpretations of scenes/language in a film amounting to unfair curtailment of the filmmakers’ freedom of expression.
- to increase the categories for certification under Section 4(1) or 5A(1) considering the age group and commensurate sensibilities of the audience in mind.
- to remove ‘documentary’ from the ambit of definition Sections 2( c) and (dd), and to only require documentaries to include a disclaimer for audiences (eg. about its suitability for persons above a certain age) that the CBFC can review and approve.
- to quash certain provisions which provide for appointments of the members of the board and/or the examining committee, or the revising committee, or even the Film Certification Appellate Tribunal (FACT), without specifying any qualifications – leading to subjective, erratic, arbitrary interpretation of over-broad, imprecise guidelines by unqualified members, which in itself is very unfair and amounts to an unreasonable restriction on the filmmakers’ freedom of speech.
- That the recommendations of the Shyam Benegal committee be given effect during the pendency of this petition.
Many core issues left untouched
I do not believe that freedom of speech is absolute. This position raises the real problem as to where one draws the line between acceptable and unacceptable speech. Since the Indian constitution has given us the framework of restrictions under Article 19(2), I am compelled to bow down to the nine limitations – “in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement of offence‟.
These limitations are over-broad and vulnerable to subjective interpretations. Most alleged violations of freedom of speech are routinely based on one of these heads. In India, speech-based offences are cognisable, and that means a police officer has the authority to make an arrest without a warrant and to commence an investigation without the prior permission of the court. Thus the burden of approaching the courts is not on the police/state but on the citizens. So the citizen-victim suffers double jeopardy – her/his right is curtailed plus she/he has to chase the judiciary.
Should even the judiciary have a right to judge the artistic content of a work of art? In a scenario where the fence itself eats the crop, whom should the artists and their audiences approach? Similarly the provision for government censorship (under Sec 13 & Sec 16(1)(a) of the Cinematograph Act, 1952) is equally objectionable. All such acts are disrespectful of autonomy and ought to be condemned.
My present petition has not raised the above core issues. I am challenging the present structure of the CBFC with a minimal hope that a stringent, fresh paradigm shall emerge while implementing the restrictions under Article 19(2), and that censorship will be lifted.
Amol Palekar is an actor and director