Introduction

US legal philosopher Ronald Dworkin set out three main reasons why freedom of expression matters:

  • Denial of collective control of the culture – everyone has the right to tell the people what they do not want to hear.
  • Democratic transparency – a free press has a duty and responsibility to hold the government and other powerful groups accountable.
  • Democratic fairness – if society is to accept democratic procedures and laws that express the will of the majority, everyone must not only have a vote, but also a voice, however much some may dislike what they are saying.

As well as being a form of entertainment, cinema offers the audience a voice of dissent, tells the people what they do not want to hear, depicts the harsh realities of society and sometimes questions the government and society at large. The free expression of cinema matters.

In this context, the classic debate regarding tradition versus change looms over the film industry. On the one hand, the Central Board of Film Certification (CBFC) is conservative and moralistic, guided by the Cinematograph Act 1952. On the other hand, filmmakers, entertainers and artists want and, more importantly, would flourish with a liberal approach towards their art form, films and productions.

As an art form, cinema has a pervasive presence and influence. The artistic expression of ideas, stories and opinions through cinema can affect society at large in unprecedented ways, from sparking political debates to being a catalyst for social change. Cinema has an impelling power of persuasion, and perhaps it is only fair for films to be the only art form to be regulated by an act of Parliament.

CBFC's powers

The CBFC is empowered under Section 5A of the act to grant a certificate of exhibition to a film following its examination and may refuse to grant a certificate to a film if:

  • any part of it is against the interests of the sovereignty and integrity of India, the security of the state, relations with foreign states, public order and decency or involves defamation;
  • it is in contempt of court; or
  • it is likely to cause offence (Section 5B(1) of the act).

The premise for rejecting a certification to a film can be based on censorship, since the criteria for doing so lacks objectivity and depends on the moral standards and social understanding of the individual(s) responsible for granting the certificate, who are guided by their interpretation of the standards codified under Section 5B(1) of the act.

Therefore, the CBFC may overreach its powers controlling or censoring films as opposed to merely categorising their suitability for audience groups based on the age of the consumer and the theme of the content depicted.(1)

Free speech and expression

The Guidelines for Certification of Films for Public Exhibition formulated by the central government uphold the importance of free expression in relation to cinema under Article 19(1) of the Constitution, which provides for the right to freedom of speech and expression. The guidelines state that artistic expression and creative freedom cannot be unduly curtailed. The same principle has been proffered by the Supreme Court,(2) which has held that censorship must make a substantial allowance in favour of freedom, thus leaving a vast area for creative art to interpret life and society.

It is an irrefutable principle – and one which has been upheld by the courts – that the right to communicate and receive ideas through drama, theatre, dance, music or film is an essential component of the protected right to freedom of speech and expression. This right to communicate is not void of checks and balances in the form of the reasonable restrictions under Article 19(2) of the Constitution read with Section 5B(1) of the act. However, as per the Delhi High Court in Ajay Gautam v Union of India,(3) these checks and balances are only truly reasonable if the pre-censorship of films is based on a test of "clear and present danger" which may arise due to the public exhibition of a film. Therefore, free speech cannot be suppressed on the grounds that the film's audience will form harmful beliefs or may commit harmful acts as a result of such beliefs, unless this is a clear and imminent consequence. The anticipated danger should not be remote, conjectural or far-fetched and should have proximate and direct nexus with the expression.

Needless to say, the Indian courts have regarded cinema as an art form capable of varied interpretations and representations; hence, by delimiting filmmakers' artistic expression through censorship, the concerned authorities are violating the constitutional right to free speech and expression and falling into the trap of overlapping the function of censorship and certification.

There exists an imminent need for the CBFC to operate as an autonomous classification body which uses a self-regulatory certification model in order to empower filmmakers who offer a voice of dissent.

Way forward: Shyam Benegal Committee report

Following examination of a film (Section 4 of the act), the CBFC may grant one of the following four certificates (Section 5(A) of the act):

  • U – unrestricted public exhibition;
  • UA – unrestricted public exhibition with a word of caution that parental discretion required for children below 12-years old;
  • A – restricted to adults; and
  • S – restricted to any special class of persons.

On January 1 2016 the Ministry of Information and Broadcasting constituted the Shyam Benegal Committee. The committee made recommendations on the functions of the CBFC in order to provide a holistic framework with a focus on limiting the CBFC's power to issue certificates, not censor films. It recommends that the CBFC should be a film certification body only, one whose scope is restricted to categorising the suitability of films on the basis of viewers' age and maturity. Further, the committee observed that the CBFC's certification process must respond to social change and fall within the rights and obligations laid down in the Constitution. Additionally, the committee recommended that:

  • the UA category of films should be broken down into UA+12 and UA+15; and
  • the A category should be subdivided into A and AC (adults with caution).

In addition to these subdivisions, the committee recommended that the anti-smoking disclaimer currently displayed during films whenever there is a depiction of smoking should be replaced with a Ministry of Health-approved static disclaimer (with a standard visual background) at the beginning of the film which would appear for a minimum period, along with audio backing. This is because the existing practise of displaying disclaimers during the film disturbs the film's narrative.

The committee seems pro-artist, with an emphasis on the need to protect the creative expression of filmmakers. However, on the one hand, it has retained the CBFC's right to deny certificate due to a contravention of Section 5B(1) of the act, while on the other hand recommending that the CBFC's powers be restricted to categorising the suitability of the film on the basis of viewers' age and maturity. The committee must clarify its stance on the overlapping of censorship and certification in order to end the debate on the CBFC's role.

The Shyam Benegal Committee's recommendations, if accepted and adopted by Parliament under the Cinematograph Bill 2013, would enable the CBFC to rate a film based on context, theme, tone and impact instead of censoring an objectionable scene and would shift the onus on the viewer to consume the available content. In other words, viewers would be free to consume any available content as long as they meet the age requirement issued to the film.

Comment

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."

For further information on this topic please contact Rishi Wadhwa by telephone (+91 120 463 3900) or email (rishi@saikrishnaassociates.com).

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Endnotes

(1) See Rashttravadi Shiv Sena v Sanjay Leela Bhansali Films Pvt Ltd, WP(C) 6384/2013.

(2) See KA Abbas v Union of India, (1970) 2 SCC 780.

(3) 2015IIAD (Delhi) 105.