Clipping the Censor’s Wings

For years, the CBFC has been going far beyond its jurisdiction, acting as a so-called guardian of our morality and worldview.

CBFC chief Prasoon Joshi. Credit: PTI

CBFC chief Prasoon Joshi. Credit: PTI

Two recent actions of the Central Board of Film Certification (CBFC) confirm it as an agent of the state rather than a statutory body responsible for certifying moving images. One is the Padmavati controversy in which the CBFC leapt into already muddy waters by returning the film’s application for certification on the grounds that one column was left incomplete. In asking the producers to re-apply and wait their turn in a fresh queue, the CBFC ensured that the film cannot be released for another three months at least. It also introduced a new bureaucratic method in its functioning by which it could delay release of inconvenient films to suit its masters.

In the many applications I have made to the CBFC for my films, there has always been some defect or the other in the filing because of the nature of the application. However, whenever there was any such problem, I was asked to come to the office and rectify it. Never have I had to wait in a fresh queue. Similarly in the S Durga controversy, the CBFC collaborated with the Ministry of Information and Broadcasting and the Directorate of Film Festivals to ensure that orders of the Kerala high court were stymied. This was done by tossing the film from one agency to another – thus ensuring the festival got over before any decision on the screening could be taken.

This only makes public what filmmakers have known for a long time – that the CBFC is not a genuine ratings agency constituted to determine age appropriateness of audio-visual material, but an arm of the government in power which has only one task – to keep those in power happy. It is also a very aggressive agency, which bows to the strong and bullies the weak.

Over the years, it has ruthlessly forced filmmakers to show truncated versions of their work with a ‘take it or leave it’ approach. Very few filmmakers have the stomach or finances to subject their work to protracted court proceedings. People drop out or accept what the CBFC has to offer. Raj Amit Kumar’s film Unfreedom – which dealt with the themes of terror and same-sex love – was denied certification by the CBFC two years ago. Rather than spend his life fighting the CBFC, the filmmaker decided not to screen his film in India. Shubhradeep Chakravorty’s documentary En Dino Muzaffarnagar on the 2013 communal riots has been shuttling between the CBFC and various courts for over three years. During this time, the filmmaker died and the hopeless struggle is being carried on by his wife Meera Choudhury. It is worth noting that in spite of high court orders, the CBFC has refused to certify this film. In 2003, the CBFC banned Gulabi Aaina, a film on Indian transsexuals by Sridhar Rangayan. The film remains banned in India even though it has won international awards and has been screened extensively the world over.

A still from En Dino Muzaffarnagar.

A still from En Dino Muzaffarnagar.

The CBFC remains oblivious of the various Supreme Court judgments which say that a movie must be viewed as a whole and not “… in bits and pieces”. Yet the number of films which have been turned down by the CBFC because of one or two words in them grows by the day and reached its peak under Pahlaj Nihalani, the erstwhile chief of the CBFC. In a recent documentary on Amartya Sen, The Argumentative Indian, the filmmaker was asked to delete words like ‘cow’, Gujarat’ and ‘Hindu India’. In Jab Harry Met Sejal the word ‘intercourse’ was sought to be removed. In Udta Punjab, the CBFC felt that the state of Punjab was being maligned and asked the filmmaker to remove the word Punjab from the film. In Ishqiya, reference to Gorakhpur was not allowed. Films are refused certification if Bombay is used in place of Mumbai. The list is endless.

Now this is not actually within the purview of the CBFC, which is not a film editor but a certification agency. These are all patently illegal actions but we have got used to them over the years. Each illegal act of the CBFC emboldens it even more and also expands its legitimacy as a so-called guardian of our morality and worldview which it was not really supposed to be.

One reason why the CBFC has been able to get away with so much is because the mainstream film industry never had too many issues with the existence of such a body. Commercial cinema never really questioned the political establishment, nor did it have a worldview which made the state uncomfortable. It also didn’t see the CBFC as a serious threat to its existence. So it lived in this symbiotic relationship with the CBFC whereby which it made a few superficial changes if and when it was asked to, in exchange for being able to push in more lewd scenes and gratuitous violence in its films. This allowed the CBFC to expand its control over the medium till it became a schoolmaster dictating what could and what could not go into a film. The victims of the CBFC’s arbitrary actions were actually the smaller filmmakers, the documentary filmmakers, those making fiction with overt political content on low budgets and the like.

These are some of the reasons which prompted me to file a petition in November this year in the Supreme Court to challenge the legality of the CBFC’s actions over the decades. I felt it was about time the patent illegalities of the CBFC and its parent body, the Ministry of Information and Broadcasting, were challenged in a court of law. Three years ago I had filed a petition in the Delhi high court challenging the constitutionality of the guidelines which the Ministry of Information and Broadcasting had issued and which were relied upon by the CBFC to justify its aggressive interventions.

In April this year, a petition was filed in the Supreme Court by filmmaker Amol Palekar. Palekar challenged the concept of pre-censorship of films which had received a ‘sanction’ by a five-judge bench of the Supreme Court headed by then Chief Justice M. Hidayatullah in 1970. He also sought that documentaries be excluded from the requirement of certification and that the Benegal Committee Recommendations, submitted to the government in April 2016, be implemented.

Amol Palekar. Credit: Wikimedia Commons

Amol Palekar. Credit: Wikimedia Commons

I was in agreement with the first part of Palekar’s petition which restricted the powers of the CBFC to viewing only for certification but not for control or refusal of a film. However, to me the Benegal Committee’s recommendations were extremely problematic for two reasons: These had replaced the government guidelines by its own guidelines which were so wide in scope that they would end up giving the CBFC more power than intended. The second was that the Benegal Committee gave short shrift to films which fell foul of the restrictions to free speech listed under 19(2) of the constitution. Now this introduced a circularity in its reasoning because, according to the constitution there can be no restrictions to free speech except those listed under 19(2). So what were the guidelines all about? If they lay beyond 19(2) then these had no legal status but if the CBFC was to be allowed to use 19(2) to restrict speech, then how could the various Supreme Court judgments which had read down specific provisions of 19(2) be ignored? So, my first conflict with Palekar’s petition was against agreeing to the Benegal Committee Recommendations.

I also felt there was a major lacuna in the Cinematographic Act which covered ‘public exhibition’ of films without ever defining what exactly public exhibition was? Were marriage videos shown to the baraat of 400 people private or public? Similarly, was the screening of a documentary for 30-50 people public or private? Not clarifying such definitions gave too much power to the CBFC to decide what it wanted to control and what it didn’t. It is indeed surprising that there has not been any real challenge to the CBFC’s powers since the Hidayatullah judgment in 1970. It is almost as if by default the CBFC has been allowed to grow into the monster it has now become. Whether it survives this challenge or not is something the highest court in the land will be going into in the near future.

Pankaj Butalia is a Delhi-based filmmaker.