Free Speech and Film Censorship

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”    ― George Orwell

 

One important exception to the general dominance of the print media in free speech matters: censorship cases involving films and documentaries. They involved film producers and directors who challenged government censorship of their productions. Film censorship usually takes place under the Cinematograph Act (No. 37 of 1952). This statute established the Board of Film Censors, which later became the Board of Film Certification, (the “Film Board”). Section 4 (1) requires every film scheduled for public screening to obtain a certificate from the Film Board. Section 5B (1) declares that a film shall not be certified if it violates certain provisions. These provisions are a word-for-word reproduction of the permissible restrictions on free speech under article 19 (2). But as we have seen in the recent cases in Tamil Nadu (vishwaroopam case) and West Bengal (Kangal Malshat case) were the politicians have shown zero tolerance to the opinion of the film industry and even lower political tolerance to there criticical movies.

K.A. Abbas v. Union of India is the leading Supreme Court decision on film censorship[1]. It gave the Court its first opportunity to discuss constitutional protection for free speech in the media outside the traditional context of newspapers and magazines. Abbas, the petitioner,was an award-winning film producer. The Film Board refused unrestricted screening of his documentary, A Tale of Four Cities, because it included scenes from a Bombay red-light district. The board asked Abbas to edit certain scenes if the documentary was to qualify for a screening certificate. Abbas refused and complained to the Supreme Court that the board was violating his freedom of expression[2].

Chief Justice Hidayatullah wrote a well-reasoned and artful judgment for a unanimous constitution bench. Tracing the evolution of film censorship, the Chief Justice noted that the Indian film industry lacked a professional self-regulatory body like the Motion Picture Association of America. Therefore, if the content of films were to be regulated, only the government could do so. As a matter of practice, the Chief Justice noted, censorship existed all over the world in some form or the other[3]. Although motion pictures in the United States generally enjoyed a significant degree of First Amendment protection, they were not completely free from restrictions. Restrictions could also be imposed on films in England[4].Censorship, the Chief Justice concluded, is a valid exercise of power in the interests of public morality and decency. It is in society’s interest and does not violate freedom of speech and expression. The Chief Justice also upheld certain government-issued guidelines used by film censors to certify films[5]. An important dimension of Abbas is Chief Justice Hidayatullah’s suggestion that films can be treated differently from other mediums of expression. Cinema is a powerful media, Chief Justice Hidayatullah wrote, combining sound, light, and movement to create a powerful impact[6]. The factum of attack on film fraternity has been under the garb of public safeguards but is unanimously the tyrant handling to Democratic State of India. For this reason, he readily upheld film censorship on the grounds of public morality, decency, and the interests of society. But he declined to consider whether censorship could also be imposed on other forms of expression. Thus, the Chief Justice was inclined to treat electronic productions, such as films and documentaries, differently from other media like newspapers. But he did not reveal how far this difference in treatment could go.

Ms. Jayalalitha cannot justify her ban of ‘Vishwaroopam’ on the grounds of preventive measure against pseudo communal tension as her decision makes the State Government in contradiction to Central Regulatory Body (Censor Board) which only implies to a situation where Leaders hallucinate themselves above Law and Justice Principles. I would like to suggest at last that the need of this hour is to have a dream, an opinion and a platform to express the opinion immaterial of any political constraints or administrative threats, India is changing and is changing with a difference.

“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”  – George Washington

 

Written by: Ramaditya Tiwari

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[1] AIR 1971 SC 481: (1970) 2 SCC 780. There were a few film censorship cases before Abbas. But they did not produce any significant outcomes. See, e.g., P.N. Films v. Union of India, AIR 1955 Bom. 381 (declining to address validity of Cinematograph Act because court lacked jurisdiction to hear the matter).

[2] At oral argument, the government made a dramatic concession. The film would receive a screening certificate without requiring any further edits. The case should have ended there. Instead, at Abbas’s request, the Court continued the proceedings to decide whether pre-censorship of films, itself, was constitutional. Justifying this unusual maneuver, the Court explained that film producers required clear guidance on censorship. H.M. Seervai, 1 Constitutional Law of India 792 (N. M. Tripathi 1991) (criticizing this procedure becauseit resulted in the Court rendering an advisory opinion).

[3] The Chief Justice found, with some apparent satisfaction, that even Abbas, the petitioner, supported censorship having written in favour of it.

[4] In any case, the Chief Justice wrote, American and British practices on film censorship are not decisive because India’s Constitution is different. It allows reasonable restrictions on the free speech.

[5] But the Chief Justice complained that these guidelines did not contain anything that would preserve or promote art. To remedy this situation, he announced additional standards for censors to use so that films were not unreasonably edited. These directions were taken from an earlier Hidayatullah opinion in Ranjit D. Udeshi v. State of Maharashtra, (1965) 1 SCR 63. In that case, these directions were formulated as a guide for prosecutors on obscenity in literature. They could also be used, the Chief Justice believed, to assess films.

[6] To illustrate, the Chief Justice helpfully volunteered his own reaction to suggestive content in different media. One could view erotic tableaux in ancient temples or read the Kamasutra, he declared, with relative equanimity. But he would consider abhorrent any documentary on these works that was a practical sex guide.