ABSTRACT-
The Indian cinema is an artistic expression of ideas, stories and often opinions, sometimes inspired by reality occasionally set to music, designed to enthrall, enchant, or simply to entertain. Guarded and protected by law, the Indian Cinema in under the aegis of the Indian Cinematographic Act of 1952. The following research paper states categorically about the central board of film certificate or the censor board, germinated from the same act. It starts with the history of the Indian cinema and the change in the censor board from 1913 to 2019. It substantiates the certification of the films by the Indian Cinematographic Act of 1952. During the recent times there have been frequent conflicts of the censor board with film distributors and the “society” in general. The research covers censoring of films on the ground of violation of article 19. It further ponders over the backlog and flaws in the composition of the censor board. The research then moves forward with courts interjecting the procedure of the censor board and its effect on the functioning of the board. Since the censor board functions with the help of courts, the research further scrutinizes articles related to the censor board like article 19(1) and 19(5). Every issue raised is well substantiated by case laws and landmark judgements. Towards the end it also states the methods to improve the functioning of the censor board.
THE CENTRAL BOARD OF FILM CERTIFICATE: A CURTAILMENT ON FREEDOM OF EXPRESSION
The Cinema is an artistic expression of ideas, stories and often opinions, sometimes inspired by reality occasionally set to music, designed to enthrall, enchant, or simply to entertain. There are hardly any other mediums of expression that can actually claim foe levels of insidious influence and presence in our daily lives. It has been one of the most potent tools of expression since its inception years back. It has been seen as a medium through which a larger picture of the society is depicted on the screen. It has been a source of introspection where in it has brought or tended to bring a positive change in the society. The Indian cinema falls under the central board of film certificate or the censor board, a statutory body working under the Ministry of Information and Broadcasting, the Government of India. It is responsible for public exhibition of films in India under the provisions of the Cinematographic Act, 1952[1]. First film of India, Raja Harishchandra, produced by Dadasaheb Phalke was released in 1913, it was after this the Cinematographic Act was passed in 1920. At that time the censor board (as they were referred) were under the police chiefs in cities of Madras, Bombay, Calcutta, Lahore and Rangoon. After independence the censor board gained autonomy and come under the union government. Since its establishment, the films have been a great source of entertainment and revenue for people connected with the cinemas. Either a classic drama Sholay or a bunch of Indians fighting for their survival in British India, the Indian cinema has been top notch in delivering content and entertaining the people of the country. But during the recent times, the censor board and its functioning has been the burning topic for the country. Cinemas do play a vital role in moulding and reflecting the change in the society, but that reflection need a lucid depiction on the screens of the Indian cinemas. Changes sometimes are not well appreciated by the audience and the change in idea for films and protest in India has always been hand in hand. Whether it is Ram Teri Ganga Meli, or Bandit Queen or Haider or LSD, a change often bequeaths protest from the Indian audience. But the authority of the censor board is checked and scrutinized every single time. The same idea of curtailment of freedom of expression comes to question and the same is every time answered by the Indian judicial system. Thus the censor board of film certificate has always been a centre of judicial scrutiny and a check and balance on the Indian cinema so that it limits the expression according to the morality and acceptance of change in the Indian society.
COMPOSITION OF CBFC
According to part 2 section 3 clause 1 of the Cinematographic Act, 1952 the Central Government may appoint a board(board of film certificate) comprising of the chairman and other members that are not less than twelve and more than twenty five for the purpose of sanctioning films for public exhibition[2].
SANCTIONING OF THE FILMS
Before an exhibition, the film gets a certificate from the board of certificate which determines the type of audience that can watch a particular film. Section 5 clause A (1)[3] states different certificates for the film that are:-
· U (Unrestricted public Exhibition): Films with U certificate have unrestricted access to the public.
· UA (Parental guidance for children below 12 years): Films falling under this category have unrestricted public access but should be watched by children below 12 years only after parental guidance.
· A (Restricted to Adults): Films with A certificate are restricted for adults as the content is not apposite for others.
· S (Restricted to special person): Films with this certificate are restricted to special people or any particular class or section of the society.
· Refusal to certify: The censor board can also refuse to certify a film if it finds that the film is glorifying vandalism or is against the morale of the society or is against the mandate of the constitution.
After getting certified by the board if the film producers and distributors are disappointed with the certification of the film, they can approach the tribunal that acts as an appeal for any backlash faced by the film producers. This tribunal is known as the Film Certification Appellate Tribunal (FCAT)[4]. FCAT is a statutory body constituted under the ministry of Information and Broadcasting, in accordance with section 5(D)[5] of the Indian Cinematographic Act, 1952. The tribunal hears the appeal under section 5(C)[6] of the act. Any aggrieved party can file an appeal to the tribunal under this section.
CONSTITUTIONALITY OF THE CENSOR BOARD:
Our constitution guarantees the Right to freedom of speech and expression to every citizen within and outside the country. This also extends to film directors and exhibitors guarding their films from the clutches of the censor board. Article 19(2) further states that nothing stated in 19(1)(a) should impose a threat on the sovereignty, integrity and the security of the State, or anyhow affect friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. But, does films really affects the security of the nation, does censoring films helps in securing the integrity of the nation? During the recent times, the government run censor board is in constant conflict with the directors and producers of the films. Huge controversy arose during the release of movies like Padmavat, Udta Punjab and many more where films were censored for hurting the religious sentiments of the people. But before questioning whether the censorship was according to the mandate of the constitution or not, we should ponder over the constitutionality of the censor board, exercising authority over these cuts. In K.A. Abbas v. Union of India[7], the constitutionality of censorship under the act of 1952 Act along with the rules under it was challenged. But the apex court upheld the constitutionality within the article 19(2) and added that films have to be treated separately from other forms of arts like books and magazines as a motion picture is able to stir up emotions and sentiments of the people. Back in 1952, with a population of approximate 361[8] million people but only 18%[9] of them literate, the apex court was inch perfect with its judgment as the people were not literate and lacked the ability to comprehend the content of the film. With conditions like such it was apt for the apex court to deliver such a judgment as the movies could have easily crippled the minds of the rest uneducated and vulnerable Indians jolted by the partition of the country. But in 1989, the Supreme Court in S. Rangarajan v. P. Jagjivan Ram[10] and others, delivered an another landmark judgment, where it paramounted the right of freedom and expression. Here the Supreme Court clearly mentioned that there should be a definite logical nexus between the censoring of the movies and its impact on the Indian society. Thus a change in the society got reflected in the change in the judgment of the apex court. In 1989 where literacy rate of India was 48.89%[11] also showed its impact in judgment. The court now stated that a reasonable nexus should be present if a particular film is to be censored. Thus the Indian judicial System has always helped the lame dog over the stile.
But is judicial involvement really necessary? Why the court does always steps in if law and order of the state is disturbed? Is it the duty of the court to step in the shoes of the censor board and check if the cuts in a particular film are appropriate or not. Since the past decade the whole idea of censor board has come to question as the censoring is on a particular scene from the film or on the entire idea of the film. With movies like Udta Punjab getting extracted 87 clips from it simply lost the basic content of the movie. It is when the Supreme Court stepped in and reduced the cuts from 87 to only 1[12]. If the judiciary always has to get the job done then do we really need a censor board? Here, the problem is not with the censor board but with the composition of the censor board. The chairman is appointed by the central government who is a renowned personality in film industry. But this idea goes in vain as the there is no transparency in the appointment of the chairman of the board. The idea of the government, the philosophies and the motives might be one of the factors that may lead to the appointment of the chairman, thus making it biased and prejudice towards a particular government. For example, a wing party heading the centre might appoint a think alike individual that would dilute the idea of censoring and cripple the rights enjoyed by the film distributors. It is situation like this when the censor board does not deliver what expected and thus the Supreme Court has to step in situations like this.
RECENT CONFLICTS WITH THE CENSOR BOARD:
During recent time the censor board has been in constant conflict with the film industry. Movies like Udta Punjab and Padmavat had triggered widespread protest and raised many questions on the authority like on what grounds are the movies censored, how is censoring films helping the society or do we even need a censor board? Movies like Udta Punjab with a strong and bold stance towards the drug afflicted Punjab had 87[13] cuts. Due to this there was widespread criticism of the censor board throughout the country as that was seemed un-necessary. This was proved right by the apex court when the film producers knocked the doors of justice that in return directed to reduce the cuts to only. Widespread vandalism and protest was displayed in Rajput dominated area during the release of Padmavat. The censor board first changed the title of the movie from Padmavati to Padmavat as it was based on a fictional book Padmavat [14]written by Malik Muhammad Jayasi. People even before watching the movie alleged that it hurt their religious sentiments. The vandalism and protest took such a violent step that many regions in Rajasthan were shut down. It was then, the home minister of Rajasthan, Gulab Chand Kataria[15] constituted a panel to watch and appraise the film. But, is it authorised by the government officials to appraise the movie without permission from the censor board or from the Supreme Court. The protesters, mainly members of the karni Sena after violent protest and demurral, lost control and called for a bandh. The ministries of Haryana and several states went to the Supreme Court demanding a ban on the film, but the court struck it down and stated that the matter should be decided by the censor board. The film after several obstacle and hindrance finally got released in January. A conflict between the censor board and the people again popped up during the release of the film Kedarnath. The film portrayed a tragic love story between a Muslim boy and a Hindu girl. The film got criticized by the state government of Uttarakhand, thus the state ministry not allowing it to release in their state. It was alleged again that it hurt the religious beliefs of the people but the same was never decided by the censor board. There have been instances like this in the past when films like Rang De Basanti and Lipstick Under My Burkah were heavily protested by the people and the censor board also reverted by censoring the films. But the censor board sometimes lacked the reasonable nexus between censoring and freedom of expression.
CBFC AND FREEDOM OF EXPRESSION:
The Central Board of Film Certificate’s role of censoring and discomfort of permitting the film makers freedom of expression has been quite a clash during the recent time. With the question boiling down to whether CBFC is authorized to grant certificate or is it authorized to dock the content of the film. This clash heated up during its recent involvement with the producers of Udta Punjab. Udta Punjab, a drug abused dominated film that portrayed the narcotisation of Punjab and youth getting involved in drug and sex abuse. To a film like this, the censor board after certification extracted 87 clips from the movie based on the words spoken, things expressed and idea portrayed. The film also addressed the elephant in the room when in show cased real estate companies engaged in drug trafficking and laundering profits of the drug trade to the state government. The protestors alleged that it imposed a threat on the security and integrity of the state. But how could a film impose a threat on the state if it echoes the main problem of the state addressed by cinematographic expression. The apex court finally in this case stated that the censor board is only authorized to certify the films not censor them. This was just one of the few infringements of the freedom of expression by the censor board. During the recent times, the censor board has asked for absurd cuts like changing the name of the movie (Padmavati to Padmavat), and altering the names of the city and places from the movies. The problem that should be encountered is that the board member tends to see or judge a film on the basis of a particular scene of the movie or a song or dialogue in the film and the whole. The examining committee set up by the board tends to see a dialogue according to a humanistic and a moralistic view that leads to sensitive and traditional mindset of the board members. This further triggers contextualization of the film on the basis of a particular dialogue or song or scene. Thus the whole essence of the film is overshadowed due to particular dialogue. This happened in 1994 during the release of Bandit Queen[16]. The movie is based on the true story of Phoolan Devi who was raped and brutalised, who thereupon became a member of a criminal gang to avenge her humiliation. The film contained explicit scene of rape and nudity. The film got ‘A’ certificate by the censor board and was released throughout the country. Again there was a protest against the film as portrayed the antagonist in an evil and profound way. But can a rapist be portrayed in a film in a decent and sophisticated manner. The film correctly showcased the evils of the society and conveyed a social message to the society. It is quintessential that the film certification is done according to the values and standards of the society. After all, it should be ensured that artistic expression and freedom of creativity should not be curbed unduly. Change in the society is always reflected in the Indian cinema and that should be appreciated by the censor board, apex court and the society at large. A film should not be judged on the basis of a particular scene but on the basis of his overall point of view. A film that illustrates the consequences of a social evil must show that social evil. Above all, this would be a harmonious coordination between censor board and film distributions as the people could judge the movie according to the certificate it is granted not according to the scene the watch in that particular movie. This does not stop here as a wrong infringement on the freedom of expression also triggers infringement of right to trade and practise any legal profession. Since film distribution is halted this affects the sale and business of the distributors thus resulting in heavy loss for the distributors. Sets of Padmavat were vandalised several times by the members of the Karni Sena as a way of protest against the movie. This also led to loss of time, resource and revenue for the film producers. Also in movie like Kedarnath that are banned in a particular state affects the revenue of the film distributors thus infringing their right to follow any legal profession.
India is a democratic country and each individual has the right to free expression. This freedom includes the right to protest against what is perceived as a contravention of an individual’s or group’s value system. However, every form of art relies on the patronage and support of its audience. In this sense, censorship will have a lesser impact on a filmmaker compared to the audience’s rejection of the film’s themes. As censorship and protests against a film curtail peoples’ right to view films of their choice, rejection or support of a film takes a back seat when exhibition of the film is at issue. In the words of the inimitable Mark Twain: “Censorship is telling a man that he can’t eat steak because a baby can’t chew it.”
[1] The Indian Cinematographic Act, 1952.
[2] Id at 1.
[3] Id at 1.
[4] Ministry of Information and Broadcasting, https://mib.gov.in/
[5] Id at 1.
[6] Id at 1.
[7] K.A. Abbas v. Union of India and Others 1971 AIR 481, 1971 SCR (2) 446.
[8] Office of the Registrar General and Census Commissioner,India, http://censusindia.gov.in.
[9] Id at 8.
[10] S. Rangarajan Etc v. P. Jagjivan Ram 1989 SCR (2) 204, 1989 SCC (2) 574.
[11] Id at 8.
[12] Phantom Films Pvt. Ltd. v. Central Board of Film Certificate A.I.R. 2016 S.C. 1207.
[13] Id at 12.
[14] Malik Muhammad Jayasi, Padmavat(Supra Publication 1971)(1540).
[15] The Home Minsistry of Rajasthan, http://home.rajasthan.gov.in.
[16] Bobby Art International and Others v. Om Pal Singh Hoon and Others(1996) 1 S.C.C. 674 .
