Analysis Of Certification Of Indian Films with reference to article 19 (1)(a)

    Cinema is a way of expressing emotions, ideas and creativity of a person in an artistic way. There is no other medium like cinema that is capable of influencing the audience to this level. Cinema is considered to be one of the most powerful tool of expression from the time of its origin. A film basically deals with the current beliefs, values and trends existing in our society which makes it more real than any other art forms [1]. Many sensitive topics have been discussed in cinemas which helps in bringing a change in the society. Being a powerful medium of expression, cinema is considered to be a paradigm of freedom of speech and expression. The Indian films are under the Central Board of Film Certification which is also known as the censor board.

    Introduction

    Recently there has been a lot of issue between the Indian film industry and the Central Board of Film certification as the CBFC was seen imposing unnecessary ban on some films by mentioning it to be causing trouble in maintaining the peace and harmony in the country.  CBFC is an autonomous body, which is vested with the power to give certification to the film as well as to censor any scenes if found objectionable by them. However, recently there has been lots of issues regarding the certification of film since the board is found to be influenced by many political parties in our country. These political parties are preventing the board from functioning autonomously by interfering in the certification of films. The members of the Central Board of Film Certification have also revealed several times that they are put under the pressure of many political parties and are prevented from working autonomously.

    The main question is whether the Board should be allowed to cut and crop the movie scenes according to their whims and fancies or should their power to censor the movies should be restricted inorder to protect the right to freedom of speech and expression of the people who put their sweat and blood in the making of the cinemas. Freedom of speech and expression is one of the most important fundamental rights that is guaranteed to the citizens of India through the Constitution that helps the citizen to freely express their ideas, creativity, thoughts, etc., without any fear [2]. However, these rights are not absolute as there are some reasonable restrictions to this right which is mentioned under Article 19(2) of the Constitution which prevents the misuse of this fundamental right. The right does not protect anything which affects the decency and morality, public order, against the interest of the sovereignty and integrity of the country etc. This article mainly aims to put light upon the role of the Central Board of Film Certification and to check whether their functioning is curtailing the freedom of speech and expression guaranteed under the Indian Constitution.

    CBFC and its Composition

    CBFC is a statutory body which is functioning directly under the Ministry of Information and Broadcasting. The CBFC was constituted under the Cinematographic Act, 1952 and as per Section 3(1) of the Act, the appointment of the board of the CBFC should be done by the Central Government which should compulsorily consist of a Chairman and a minimum of 12 and maximum of 25 other board members for the purpose of censoring and certifying the films before exhibiting to the public audience[3]. 

    Kinds of Certifications by the CBFC

    The different kinds of certification that should be issued for various films are dealt under Section 5A(1) of the Cinematographic Act, 1952. Before exhibiting the film to the public audience, it is mandatory that the Board should issue a certificate for the film before the screening which will decide the type of audience that are allowed to watch the movie. There are 7 different kinds of certifications are:-

    1. U – Universal Certification:

    Films that recieve U certification can be watched by a public audience without any restriction. No person will be restricted on the basis of age group for watching U certified movies. Even though these films are open to audiences of all age groups, the film might still contain  mild violence and language. 

    2. UA – Parental guidance:

    UA certified films do not restrict any person from watching the movie, however a child below the age of 12 are preferred to be under the parental guidance and should  be  accompanied by an adult to watch these types of films. These types of films may contain sexuality, violence and coarse language.[4]

    3. A – Adults only:

    Film certified with Adults only certifications should only be watched by an individual above the age of 18 years. No person below of the age of 18 years will be permitted to watch these films. Furthermore the buying and renting of DVDs, CDs or watching such films through any online platform is also legally prohibited.

    4. S- Specialists:

    Films certified with S should be viewed only by professionals or specialists in a particular field such as doctors, scientists, engineers etc. General Public is prohibited from watching such movies.

    5. V/U, V/A, V/UA :

    These types of certifications are given by the Board to release certain parts of a video from the film.

    The Board also has the power to refuse to certify a movie if it is found to be against public law and order, morality and indecency. However, the producers and director of a film have the opportunity to question the decision of the Board by approaching the Film Certification Appellate Tribunal, also known as the FCAT. Similar to CBFC, FCAT is also a statutory body that is formed under the Indian Cinematograph Act under Section 5(D). Any person disappointed by the decision of the CBFC has the liberty to approach the tribunal where they can file an appeal against the decision of the board.

    CBFC and Freedom of Speech and Expression

    Freedom of speech and expression is a basic fundamental right guaranteed to the citizens of India under Article 19(1)(a) of the Constitution. Every citizen of the country has the right to freely express his thoughts, ideas and opinions. However this right is not absolute as there are some reasonable restrictions imposed under Article 19(2). According to Article 19(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests 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 to an offence”. No authority can impose these restrictions arbitrarily and without quality reasons. If any restrictions are found to be applied arbitrarily then it would be defeating the main intention of enacting such freedom under Article 19(1)(a).[5]

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    The real question is whether the freedom of speech and expression in case of movies can be taken away considering it to be violative of Article 19(2). There have been a lot of issues spurring up between the filmmakers and censor board which have led to many controversies recently. The constitutionality of the Board in the censorship of the movie has been questioned various times but the Supreme court have always tried to solidify the role of the censor board in the censorship of movies. In the case of K.A Abbas v. U.O.I, it held that “the censorship of the censor board is constitutionally valid within the Article 19(2) and the films should be treated separately from other art forms such as books and magazines”[6]. But later in the year 1952, in the case of S.Rangarajan v. P Jagjivan[7], the court emphasized the importance of freedom of speech and expression and also highlighted the need to have a reasonable nexus between the film that has to be censored and the impacts it will have on Indian society. 

    Many films have been made victim to unnecessary censorship calling it to be against the sovereignty and integrity of the State or hurting the religious sentiments etc. One of the most controversial issues that popped up recently was against the film “Udta Punjab” where many groups called the movie to be against the integrity of the State as the movie shows the real state of the country in drug consumption and drug trafficking. CBFC censored 84 scenes of the movie on the same ground which ultimately resulted in the losing  the entire essence of the movie. The main point is, when a particular film depicts the current situation of the country in a bigger picture, how can it be considered against the sovereignty and integrity of the State. Films are the way of expressing the societal problems and the concerns in a cinematographic method and therefore, it cannot be said to be against the public morale or against the integrity and sovereignty of the State. However, the Supreme Court held in this case that CBFC are only authorized to certify the movies and not to censor them[8].There has been many instances were CBFC has made unwanted and absurd cuts such as to change the name of the film, to remove the names of the State mentioned in the movie etc. Films and other media have a great role in helping every person to get a strong idea about understanding various issues happening in the country. 

    During the inception of cinemas, the majority of the audience was illiterate and therefore, the films had the ability to mislead them. When such a condition existed, censoring of unhealthy contents was necessary as people were incapable of understanding the content of the cinema. But presently the situation is completely changed with majority of the people are now literate and are definitely in a position to comprehend the content of the film in the right way and therefore, any kind of censoring of movie scenes which is unreasonable is blatantly curtailing the freedom of speech and expression and also is destroying the essence of the movie. Anyhow such freedom should not be taken for granted by the movie makers and the CBFC has all the power to impose restrictions upon such films that are on the face violative of the restrictions mentioned under Article 19(2).

    Judiciary and Censorship

    In order to solve many conflicts between the filmmakers and the CBFC, the court had to step in many times to issue a just and fair decision. Many judicial pronouncements had turned to be a great contribution for the purpose of improving jurisprudence in this particular subject.

    The first case in which the censorship of CBFC was challenged was in K.A Abbas v. Union of India. In this case the petitioner challenged the decision of the CBFC in not giving a clean “U” certification for his film “Tale of 4 cities”. When the petition was still pending in the apex court, the central government granted permission to the Board to make cuts in the movie. The petitioner challenged the censoring of the movie to be arbitrary and violative of article 19(1)(a). After analyzing the issue, the court held that the censorship of the movie was constitutionally valid and not violative of the right to freedom of speech and expression. The court held that the censorship was indeed within the ambit of reasonable restrictions mentioned under Article 19(2) which makes the entire process constitutionally valid.[9]

    But in the case of S.Rangarajan v. Jagjivan Ram, the Apex court upheld the importance and sanctity of the right to freedom of speech and expression. In this case, the High court of Madras cancelled the “U” certification which was issued to a movie called “Ore oru gramathile”. The film was handling one of the most trending issues in the society, that is reservation policy of the Tamil Nadu State Government. There was huge protest against the screening of the film and therefore the film was banned from screening. Later, the film received a national award from the government of India in the best film category and the case was still pending in the court. After the decision made by the High Court, the case went to an appeal in the Supreme Court in which the court highlighted the paramount importance of Article 19(1)(a). The court furthermore said that film is legally permitted to use this right and their right cannot be curtailed unreasonably. The court opined that “if exhibition of the film cannot be validly restricted under Article 19(2), it cannot be suppressed on the account of threat of demonstration and processions or threat of violence. That would tantamount to negation of rule of law and surrender to blackmail and intimidation”. The State has the duty to ensure that rights of freedom of speech and expression are not violated in any manner and in all the means to protect it.[10]

    In another landmark case of Bobby Art International v. Om Pal Singh Hoon [11], the petitioner was against the screening of the movie called “Bandit Queen”, which depicted the story of Phoolan Devi. The petitioner contended that the movie was obscene as the central character of the film, Phoolan Devi was depicted in a derogatory manner which was an insult to the womanhood of the country. It was also contended by the petitoner that the way in which rape scens were shown and the potryal of gujjar community was also against the morality. The High Court struck down the A certification that was issued to the movie by the tribunal. But later the decision of the High Court was challenged in the Supreme Court. The apex court allowed the appeal and upheld the decision of the tribunal in issuing A certification for the film. Furthermore the court held that “the film should be judged in its entirety from the point of overall impact”. When a film tries to condemn rape and other sexual violence and for the purpose of it includes sexuality or nudity for improving the coveyance of message is totally permissible. In Sree Raghavendra Films v. Government of Andhra Pradesh[12], the screening of the telugu version of a film called “Bombay” was objected to in  the state of Andhra Pradesh even after getting a “U ” certification room from the CBFC. It was said that the movie hurts the sentiments of a particular community and therefore should not be screened in the State. The court quashed the ban imposed in the film and allowed its screening in the State.

    Recent Issues with CBFC 

    Recently, a lot of issues have been rising up between CBFC and the Indian Film Industry. Movies like PK, Messenger of God, Udta Punjab and Padmavat caused widespread protest across the country and have become victims of the censor board without any valid grounds. “P.K” being one of the biggest commercial hits of the year was criticized by certain religious and political groups to be hurting their religious sentiments as the film was handling a sensitive issue on Man God. Movies like “Udta Punjab” where the ill effects of drug usage was portrayed was highly criticized by a group of people which resulted in the cutting of 84 scenes of the film by the censor board. The unnecessary censorship of various scenes of the films were heavily criticized and the movie makers had to approach the Supreme Court inorder to get justice. A conflict of the similar manner also popped up during the release of a historical film called “Padmavat” where a lot of people especially from areas of Rajput dominance protested against the release of the film and called it to be hurting their sentiments even before watching the movie. The censor board initially asked to change the title of the movie from Padmavati to Padmavat but the protest continued to the extent of calling Bandhs in various States of the country[13]. After several impediments, the film was released in january. Similar instances took place in movies like Kedarnath, Lipstick under my Burkha, Rang de Basanti, etc., where religious and political groups without any valid grounds protested against the release of these films and the censor board also responded in the same manner by censoring many scenes of these films. CBFC has many times failed to understand the reasonable connection between censorship and freedom of speech and expression. They are recently criticized for their inefficiency in working autonomously. It is high time that the censor board take reasonable decisions and evolve accordingly.[14]

    Conclusion 

    Cinema is a medium to showcase one’s ideas and creativity. It is basically the reflection of the society in a big picture. The film makers have the liberty to discuss societal beliefs, culture, trends etc to an extent. Before exhibiting the film to the public audience, all films have to receive a certification from the CBFC which will determine whether a particular movie is fit to be watched by the general public or not. The certificate will be issued by the CBFC according to the amount of violence, language, sexuality and nudity present in the movie. Initially, during the inception of the CBFC board under the act, sexuality. nudity, drug use, etc. were considered to be a taboo topic and therefore was censored from the movie after a certain limit. However, the society is changing but the censor board continues to stick with the basic meaning of sexuality, vulgarity and obscenity. The recent incidents also put light upon the misjudgement of the CBFC. Such erroneous judgements of the censor board not only restricts the creativity of the film makers but also affects the merit of the movie to a great extent. These unfair censoring of films are indeed curtailing the freedom of speech and expression and the outdated method used by the CBFC should be brought to an end at the earliest. The Board should evolve by keeping the changes happening in the society and updating the existing methods of censorship. The censor board should allow free expression of ideas and thoughts of the filmmakers and should also ensure that censoring does not  take away the essence and merit of the movie. However, the board should exercise their power if it is found that a particular film is exhibiting scenes that are explicitly against the social order and morality. 

    References

    [1] Sathyam Rathore, “A critical overview of censorship in Indian cinema in the light of role of CBFC”, Bharati Law Review 218 (2016).

    [2] Subhradipta Sarkar, Banning Films or Article 19(1)(a), Legal Services India, http://www.legalserviceindia.com/articles/fban.htm  (last visited on December 8, 2020).

    [3] Sarthak Sharma, The central board of film certification : A curtailment of freedom of expression, available at: https://fastforwardjustice.com/the-central-board-of-film-certificate-a-curtailment-on-freedom-of-expression/ (last visited on December 9, 2020).

    [4] Id.

    [5]Dhupdale, Vivek, “The role of Central Board of Film Certification (CBFC) with reference to Right to Freedom of Speech and Expression in the Indian Film Industry”, Research Gate (2015).

    [6] 1971 SCR (2) 446.

    [7]1989 SCC (2) 574.

    [8] Priyanka Ghai and Dr. Arnind P Bhanu, “Censorship in India vis-a’-vis freedom of speech and expression”, 7 Journal of Critical Reviews (2020).

    [9] 1971 SCR (2) 446.

    [10] 1989 SCC (2) 574.

    [11] (1996) 4 SCC 1.

    [12] 1995 (2) ALT 43.

    [13] Supra 3.

    [14] Bhatia, 100 years of film censorship India, https://www.livemint.com/Leisure/j8SzkGgRoXofpxn57F8nZP/100-years-of-filmcensorship-in-India.htm (last visited on december 9 2020).


    BY RACHNA R KURUP | SYMBIOSIS LAW SCHOOL, HYDERABAD 

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