The Cinematograph Act, 1952[1], and The Cinematograph (Certification) Rules, 1983[2], were established to prescribe the parameters and procedure for censorship of films. They were also granted the power to authorize the certification process in respect of films declared to be fit for public exhibition and licensing and regulation of cinemas. The certification of films that are to be exhibited is done by the Central Board[3] of Film Certification. In this way, The Act of 1952 governs the exhibition of films in India.
The aforementioned guidelines on which films are reviewed by the board are in consonance with the Fundamental Right of Freedom of Speech and expression laid down in Article 19 of the Constitution of India. Freedom of speech and expression is a concept that encapsulates the essence of Individuals' free expression whether through words of mouth, literature, art, or any other medium of communication. It is one such right that further enforces the concept of democracy. Although by the virtue of this article all citizens of India are guaranteed freedom of speech and expression they are however subject to reasonable restrictions.The various conditions under which the State can limit or take away the freedoms when the Sovereignty and integrity of India, or the security of the State, or friendly relations with foreign states, or public order or decency or morality, contempt of court, or defamation, or incitement to an offense is in question. Thus rendering such freedom not unrestricted and conditional in nature. In notable case law, the apex court held that it is undeniable that films enjoy the guarantee under Article 19(1)(a) as they form a medium of speech and expression.[4]
CENSORSHIP: A LEGAL CONUNDRUM
The Central Board of Film Certification uses censorship as a tool to restrict the freedom of speech and expression of filmmakers if it falls within the ambit of grounds of reasonable restrictions under Article 19 (a). There have been instances of institutions exercising censorship other than the Central Board of Film Certification such as the government. This has been done on the ground that such films are a danger to communal harmony and religion thereby potentially compromising the peace and harmony of a state. For the purpose of imposing such bans government advisories or notifications are issued.[5]
However, Censorship is the antithesis to freedom of speech and expression. In essence, censorship takes root in the suppression of speech or any information that may be considered objectionable in a number of socio-legal senses. There is no rigid or fixed definition for censorship. Censorship is a way of silencing and controlling filmmakers if their opinion regarding a public, political or social issue is rendered inconvenient. The limitations made in the garb of National security, obscenity, and hate speech as reasonable restrictions lie in the grey area as they are vague, ambiguous, and difficult to comprehend.
SUPPRESSED FREEDOM OF EXPRESSION
UNHCR is one of its reports [6]defines Artistic Freedom as “Explicitly mentioned in provisions of both International Covenants, the right to freedom of artistic expression is a fundamental aspect of cultural rights. It includes the freedom to seek, receive and impart information and ideas of all kinds "in the form of art", the right "to enjoy the arts" and the creativity of others, as well as obligations from States to "respect the freedom indispensable for…creative activity".
The expected result of this report is that international and national legislation related to human rights and fundamental freedoms should be implemented and promoted for artistic freedom and the social and economic rights of artists.
In India also courts in numerous judgments have bottled down that constant imposition of censorship in films has a detrimental impact on artistic freedom and creativity.
In K.A. Abbas v. Union of India[7] The judge opined that the board must not hamper the artistic freedom of the filmmaker. In the case of Anand Chintamani Dighe v. State of Maharashtra[8], the court emphasized the importance of artistic freedom in a democratic society and held that the law is not always in alignment with individual views but this doesn't necessarily mean that the playwright's views are incorrect.
The UN ‘Report of the Special Rapporteur in the field of Cultural Rights’[9] has recognized global concerns over censorship or unjustified restrictions of the right to freedom of artistic expression. It stated that censorship sums up to be a cause of important cultural, social, and economic losses and further denies artists of their means of expression and daily bread.
DRAFT CINEMATOGRAPH (AMENDMENT) BILL 2021, A GLIMMER OF HOPE…
The Ministry of Information and Broadcasting in pursuit of public opinion on draft Cinematograph (Amendment) Bill 2021[10] has proposed to bring back its “revisionary powers” over the Central Board of Film Certification. The main provisions of this bill are Age-based certification, Provision against piracy, and eternal certificate. In response to “reasonable restrictions” placed by the constitution in Article 19 of the constitution to justify exercising its powers to act as a super-censor for films, the government stated that even if the CBFC, which is the official body empowered to implement the Act, finds those films do not trigger those restrictions.
CONCLUSION
This article captures how the government and legislature impose super censors on films to deprive the freedom of speech and artistic expression through the medium of films. These sensors are unreasonable and unwarranted apart from infringing fundamental right “Article 19”.
Hampering with artistic freedom and the creative process of filmmaking is a leading cause of socio-legal and Economic issues in India. Censors simply serve the sole agendas of persons having the upper hand in society. The principal feature of Freedom of artistic expression is that an artist should not be caged by law or conventions in the process of making art through their practice. It negates the concept of democracy by defying such basic human rights.
A proper balance is to be maintained between freedom of speech and expression and social interests. Defying this aforementioned balance leads to a collapse in peace amongst citizens and dishevels society. Government should lead with mass sensitization towards others' sentiments and views in this case the views held by Indian Filmmakers.
[1] https://legislative.gov.in/sites/default/files/A1952-37.pdf
[2] https://www.cbfcindia.gov.in/main/CBFC_English/Attachments/cine_rule1983.pdf
[3]The Cinematograph Act, 1952, Section 2(b). Definitions.—In this Act, unless the context otherwise requires,— [(b) “Board” means the Board of Film Certification constituted by the Central Government under section 3;]
[4] Rangarajan vs. P. Jagjivan Ram, 1989 SCR (2) 204
[5] Press Trust of India, Ram Rahim Singh’s ‘Messenger of God’ screening banned in Punjab, § 144 Imposed in Sirsa after Protest, INDIAN EXPRESS, (April 28, 2016), http://indianexpress.com/article/india/indiaothers/messenger-of-god-controversy-tension-in-pocketsof-sirsa-section-144-imposed-at-places/.
[6] The right to freedom of artistic expression and creation (2013), https://www.ohchr.org/en/issues/culturalrights/pages/artisticfreedom.aspx
[7] (1970) 2 SCC 780
[8] Bombay High Court, 2002 (1) BomCR 57
[9] https://www.ohchr.org/en/issues/culturalrights/pages/srculturalrightsindex.aspx
[10] https://mib.gov.in/sites/default/files/Public%20comments%20sought%20on%20Cinematograph%20%28Amendment%29%20Bill%202021.pdf
Navin Kumar Jaggi
Tanvi Chhabra