Censorship and the Freedom of Speech and Expression

    Benjamin Franklin said, “Freedom of speech is the principle pillar of a free government. When this support is taken away, the constitution of a free society is dissolved and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates”. The anonymous form of public reach in the form of art and media and their adjourning platforms continues its abnormally fast growth, often leading to one of the most controversial debates of all time. Hostile to the majority view, the reality of censorship is far more disappointing. A sad and often sordid history of censorship methods in a country like India over the years has emancipated in the minds of the current generation how censorship proves to be nothing more than an overrated tool in today’s anonymous media generation.

    While everybody seems to be discussing the pros of censorship, the cons or the so-called could haves of non-censorship are often overshadowed. The common notion of censorship fails to understand that just like censorship is used to officially restrict justifiable hate and obscenity, it can also be misused to hide facts and truths. The above stated problem of misusing these tools of censorship has risen over the years. The increased scope of media, press, and internet in recent times require an improvised set of censorship rules and the obsolete model no longer holds relevance in today’s time.

    Censorship laws and bodies assume the mindset of the people in a country like India to be shallow and conservative which is true in some sense but this should not give it absolute right to censor everything that is only obscene or objectionable to some sectors of the society. This if continued, it would arguably go against the spirit behind the Freedom of Speech and Expression. For example, Indian media has put up censorship on art forms, paintings and sculptures giving reasons like nudity, obscenity, etc. The metaphorical meaning of such arts are not even considered and straightaway put under limits of censorship. Various art forms which are so called “objectionable” may give positive messages for the society through the meaning hidden inside. For example, an art form portraying homosexual relation in India is considered objectionable but the message of equality for the homosexual community is completely ignored. Something which was a taboo 50 years back can be accepted in today’s time.  Likewise many such art forms which portray positive messages to viewers like stop racism, sexual violence, etc., are put behind the arbitrary censorship rules. Art forms have their own audience according to the type of art and the kind of portrayal. Art is yet another form of expression and is completely under the ambit of Article 19(1) of the Constitution. These audiences are denied the enjoyment of the art form they prefer by such censorship rules put by a body of individuals who do not themselves have knowledge of the same. Further since historic times this tool of censorship has been misused by the people in power for their own benefits only and restricted the rights of speech and expression thus making it violative of the Fundamental Rights guaranteed by the Constitution of India.

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    Censorship used to Defeat Freedom of Speech and Expression since Colonial Rule

    The history of censorship laws in our country dates back to Colonial times when the British Government was determined to control all forms of media and were stubborn in not giving free media rights to the people of this country. The beginning of these harsh laws started way back in the late 19th and early 20thth century when British officials like Lord Wellesly promulgated the Press Regulation Act in the year 1835 followed by the “Gagging Act in the 1850’s and the Press and Registration of Books Act in the 1860’s. The Colonial government wanted the entire control of Indian Media and hence such reforms were started. Thus since the very inception of Censorship, it has been used as a tool to suppress the voice of common people for the benefit of the people in power.[1]

    To encompass Indian cinema and movies under the strict censorship regulation of the British, in the early 20th century, the Colonial rule placed the regional censor boards of Bombay, Calcutta, Madras, Rangoon and Lahore under the strict supervision of the respective city’s commissioner of police. Further as the time progressed the bureaucracy started to get included more and more in the decisions which were related to these censorship laws. In order to remove accountability of any arbitrary action, the judiciary was kept out of such decisions. As a result the censorship laws were kept out of the ambit of the courts making them completely non justifiable. This was basically done to deny to the people of India any idea related to communism or socialism and to ensure the idea and spirit of freedom and nationalism should not reach the common public thereby curbing such thoughts and not letting them be expressed.[2]

    The next phase of the history of censorship is during the post-independence period that is the period after 1947 to modern day. After independence the common masses, art enthusiasts, readers and philosophers expected the harsh rules of press and media shall be curtailed but to the common masses shock no such bold changes were made by the government. There was arguably no need for the leader of free India to carry on with the legacy of such harsh laws which curbed the voice of Indian masses and with the advent of Fundamental Rights like right to free speech and expressions, the relevance of such laws signifies no proper logic or reason.[3]

    Freedom of Speech v Censorship

    The liberal view with respect to this argument states that free speech should be permitted in all forms and in almost all the cases and censored only in exceptional cases. There are three major reasons for the same:

    • Democracy: Censorship as stated earlier has always been a tool for suppressing the voice of the minority and underprivileged people. This results in an antithesis of Democracy and the system starts going towards oligarchy(A Government of the few).
    • Personal Autonomy: Our identity is let out in the world through our expressions and speech. Censorship targets this very aspect of our inclination towards personal identity.
    • Discovering Truths: New truths and discoveries are possible when one expresses freely without restrictions. Censorship undermines this very effort.[4]

    Censorship in Journalism v The Freedom of Speech and Expression

    Various forms of media and art help in the process of journalism. Journalism is considered as the fourth pillar in modern democracies. This has to be free from any external pressure or any arbitrary control. Censorship curtails the process of free journalism by allowing it within the ambit of legislation through different laws. This defeats the very purpose of journalism. A notable lawyer Fali S. Nariman once said “Freedom after the speech is what the Freedom of Speech is all about”. Censorship thus curtails this very freedom as due the consequences of Censorship law, one has to keep a check on this speech and expression due to the fear of facing strict actions.

    In a landmark case of Indian Express Newspaper Private Ltd. v. Union of India[5] the Supreme Court of India held that “No limits on freedom of speech and expression apart from those alluded to in Article 19(2) could have been enforced, so there can be no intervention with this kind of freedom within the context of the interest of the public. It needs to be taken seriously that censorship in the present era is an anachronism”. Similarly in another landmark judgment of Shreya Singhal v. Union of India[6] , the Supreme Court of our country held that “One of the eight subject matters referred to in Article 19(2) must be protected by that statute. And if it doesn’t, and is beyond the reach of Article 19(2), Indian courts will nullify such legislation”. The court ruled in abolishing section 66A of the Information Technology Act that “any legislation seeking to enforce a limitation on freedom of expression can pass muster only if it is closely linked to any of the eight issues referred to in Article 19(2)”

    Conclusion

    Censorship of any form is a tool, the whip of which is in the hands of very few people who are basically the censor board members or legislators. This makes it quite arbitrary as great power has been concentrated in the hands of few people without keeping any check on the same. This basically leads to pro-active takedown and filtering of content which basically is an antithesis of free speech and expression in any democratic country like India.[7] Similarly the latest laws of censorship have called for censoring of OTT platforms like Netflix and Prime Video in public interest but the question once again arises who should decide what is good for the public? Private viewership of these OTT platforms is not public exhibition and keeping in mind the ratio given by the Karnataka High Court in Padmanabh Shankar this pre censorship is nothing but chilling and arbitrary.

    Criticism regarding the government is further censored on almost all platforms but the jurisprudence behind these laws fail to understand that “If sharp criticism disappears completely, mild criticism will become harsh. If mild criticism is not allowed, silence will be considered ill-intended. If silence is no longer allowed, not praising hard enough is a crime. If only one voice is allowed to exist, then the only voice that exists is a lie.”

    The liberty of thought and expression as guaranteed by our preamble is safeguarded by Article 19(a) which makes the freedom of speech and expression a fundamental right. The discussion on this particular topic is always on the frontline while debating anything with respect to censorship. Censorship is to media as lynching is to justice. The Indian media, art and other such platforms solely developed for free communication have always been plagued with attacks on thoughts and ideas of people and are often neglected or not considered in the name of censorship. The truth which needs to come out often gets stuck in the grey area created by the obsolete model of censorship in India. This results in a communication curfew as many people call it. A democracy with communication curfew is a void in the system and such platforms which are built to fight this void are reduced to mere puppets with the existing model of censorship. E- Media, Social Media, Press, Journals, Reports are the new agents of information in the so called electronic age of ours. These tools must be free from arbitrary rules of Censorship for further reach and increased efficiency of the same.

    REFERENCES

    [1] Baskaran, S. T. “FILM CENSORSHIP AND POLITICAL CENSORSHIP IN BRITISH INDIA: 1914-1945”, vol. 36, 1975, Proceedings of the Indian History Congress, JSTOR pp. 493–510 (2003)

    [2] Someswar Bhowmik. “From Coercion to Power Relations: Film Censorship in Post-Colonial India.” vol. 38, no. 30, Economic and Political Weekly, JSTOR pp. 3148–3152 (2003).

    [3] Ibid.

    [4] Sen, Shameek. “RIGHT TO FREE SPEECH AND CENSORSHIP: A JURISPRUDENTIAL ANALYSIS.” vol. 56, no. 2, Journal of the Indian Law Institute, JSTOR pp. 175–201 (2014).

    [5] 1986 AIR 515.

    [6] AIR 2015 SC 1523.

    [7] Anonymous, “Censorship and Free Expression”, INTERNET FREEDOM FOUNDATION, available at: https://internetfreedom.in/issues-censorship/ (Last visited on June 12, 2021).


    BY SIDHANT SHRIGOPAL SOMANI & SAVNIE ASHOK SHERKAR |

    MAHARASHTRA NATIONAL LAW UNIVERSITY NAGPUR

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