Professional Documents
Culture Documents
Some other instances of similar nature in the recent times are discussed below:
Though nothing to do with the social ban on Rang De Basanti imposed by the BJP Yuva Morcha in Gujarat, it still
ran into controversy because the story featured corrupt politicians and the repeated crash of fighter planes. The film
was only cleared after a positive nod from the Defence Minister Pranab Mukherjee and the three chiefs of the
defence forces after viewing the film on the invitation from the Board.
Water, a 2005 movie by Deepa Mehta which is set in 1938 and examines the plight of impoverished widows at a
temple in Varanasi, India ran into controversy with the Hindu fundamentalists. Mehta originally intended to direct
Water in February, 2000 but before filming had begun, some 2,000 protesters spearheaded by a coalition of Hindu
extremists aligned with the BJP (then ruling party at the Centre) destroyed the main film set and even gave death
threats to Mehta[8]. Eventually the film was shot secretly with a different cast in Sri Lanka, under the title River
Moon in 2003. In spite of wide international recognition, the film is yet to be released in India. The Censor Board
finally cleared the movie to be released in India in November 2006[9].
Rakesh Sharmas film Final Solution was a study of the politics of hate. The film is set in the backdrop of the post
communal violence of Gujarat in 2002[10].. In spite of international accolades, the film was banned in India by the
Censor Board for several months stating that State security is jeopardized and public order is endangered if this film
is shown[11]. The ban was finally lifted in October, 2004 after a sustained campaign.
On the same context, Faaiz Anwars film Chand Bujh Gaya depicted a love story of a young couple -a Hindu boy
and a Muslim girl - whose lives are torn apart in the riots. The Censor Board refused to certify the film because it is
full of gory visuals of violence and that certain characters have definite resemblance to real life personalities and it
was still a live issue by then, thus inciting communal violence. Later the Bombay High Court quashed the order of
the Board. The court also rescued another documentary film Aakrosh (2003) of 18 minutes which brought out the
agony and anguish of victims of communal riots.
In 2002, the film War and Peace, created by Anand Patwardhan, focusing on the dangers of nuclear war in the Indian
sub-continent, was asked to make 21 cuts[12] before it was allowed to have the certificate for release. The mater
finally reached the court and the Mumbai High Court ordered the Censor Board to issue a U certificate without
imposing cuts or making additions to the footage.
Another Rakesh Sharma film which drew similar controversy is Aftershocks : The Rough Guide to Democracy
(2002). Set in Gujarats post-earthquake situation of 2001, it engages itself with the debate of Environment vs
Development and examines the fate of marginal citizens in a welfare state. It shows how the government controlled
mining company sees the quake as God sent opportunity to acquire two quake-affected lignite rich villages[13]. This
was also rejected by the government-run Mumbai International film festival in 2002.
In 1999, orchestrated by Tamil Nadus Dravida Munetra Kazhagam (DMK) state government, a coalition partner in
then BJP-led National Democratic Alliance (NDA) government, the police arrested two men for holding a preview
of the documentary, Death of a River, to writers, journalists and intellectuals. The film dealt with the police
massacre of striking Manjolai tea estate workers at the Thamiraparani River which resulted in killing of 17
people[14].
The list of the films is not exhaustive but only a tip of the iceberg of what goes on day in and day out there are
numerous such instances where films got into trouble while dealing with matters of serious nature. However, the
phenomenon is not all together new. Just few films have been cited here to show the present nature and extent of the
problem. Past films have also been targets of community and government ire. Many years back, two films Aandhi
and Kissa Kursi Kaa were perceived to be about the then-Prime Minister Indira Gandhi[15]. In fact, Kissa Kursi Kaa
turned out to be the most controversial film ever made in the history of Indian cinema. The film was accused of
scathing criticism of the functioning of the Central Government under Mrs. Gandhi. The films negative was burnt
by the then ruling party minister and the film had to be re-shot.[16]
All those incidents represent the arbitrary nature of the authorities, various groups or political parties and their diehard efforts to curb the freedom of speech and expression through films which fell out of their taste. The
filmmakers, to exercise one of the most coveted right, had to depend either upon the whims and fancies of those
elements or to fight legal battles; still there are many films which never saw the light of the day.
procedural details of Board, the Examining Committee, Revising Committee, the Tribunal and related matters. It
may be stated in this regard, under Rule 11, it specifically imposes a duty on the Board to assess public reactions to
films. This may be by holding symposia or seminars of film critics, film writers, community leaders and persons
engaged in the film industry and also by undertaking local or national surveys to study the impact of films on the
public mind.
Apart from the statutory laws, the Indian Courts through its various judgments have contributed immensely to build
up the jurisprudence in this respect. Some of those important judgments related to feature films, tele films and
television serials are discussed below:
In K.A. Abbas v. Union of India[22], the constitutionality of censorship under the 1952 Act along with the Rules
under it was challenged. But the Supreme Court upheld the consititionality within the ambit of Article 19(2) and
added that films have to be treated separately from other forms of art and expression because a motion picture is
able to stir up emotions more deeply than any other product of art. However, at the same time it cautioned that it
should be in the interests of society.
Probably, the most important case so far the problem dealt here with is the case of Rangarajan v. P. Jagjivan
Ram[23]. In an appeal before the Supreme Court the decision of the Madras High Court was challenged for
revoking the U-Certificate issued to a Tamil film called Ore Oru Gramathile (In One Village). As the film criticized
the reservation policy of the Tamil Nadu Government, it was held that the reaction to the film in Tamil Nadu is
bound to be volatile[24]. But the Supreme Court overturned the High Court decision while upholding the freedom of
speech and expression. In doing so, the Court did acknowledge to have a compromise between the interest of
freedom of expression and social interests. However, it went on to observe that the anticipated danger should not be
remote, conjectural or far fetched but have proximate and direct nexus with the expression and equivalent of a spark
in a powder keg.
The Court criticized the State and emphasized that freedom of expression cannot be suppressed on account of threat
of demonstration and processions or threats of violence. It is the duty of the State to protect the freedom of
expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile
audience problem. (Emphasis added). As censorship is permitted only on the grounds under Article 19(2), the
standard to be applied by the board or courts for judging the film should be that of an ordinary man of common
sense and prudence and not that of an out of the ordinary or hypersensitive man.[25]
Another incident came up was regarding a serial Tamas which depicted the Hindu-Muslim and Sikh-Muslim tension
before the partition of India[26]. Appeal was preferred before the Supreme Court from the judgment of Bombay
High Court in Ramesh v. Union of India and Others [27], to restrain the screening of the serial as it was violative of
Articles 21 and 25 of the Constitution and Section 5B of the Act. The Supreme Court affirmed the High Court
decision to dismiss the petition. Commenting on the reaction of the average men, the Court held that the average
person would learn from the mistakes of the past and perhaps not commit those mistakes again. They concurred with
the High Court that illiterates are not devoid of common sense and awareness in proper light is a first step towards
that realization.
In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana[28], an appeal was filed before the SC from an
interim injunction issued by the Bombay High Court to stop the telecast of a serial Honi Anhoni on the Doordarshan
which was not in public interest as it was likely to spread false or blind beliefs amongst the members of the public.
The SC struck down the injunction because in its opinion the petitioners, apart from their own statements there is no
prima-facie evidence to show that grave prejudice was being done to the public.
In Sree Raghavendra Films v Government of Andhra Pradesh and others [29], the exhibition of the film Bombay in
its Telugu version was suspended in exercise of the powers u/Sec.8(1) of the A.P. Cinemas Regulation Act,1955
[30], despite been certified by the Censor Board for unrestricted exhibition. The suspension was imposed citing the
cause that it may hurt sentiments of certain communities. However, it was found that the authorities who passed the
impugned order did not even watching the movie!! The Court quashed the order as being arbitrary and not based on
proper material.
In Life Insurance Corporation of India v. Prof. Manubhai D. Shah, Doordrashan [31] refused to telecast a
documentary film on the Bhopal Gas Disaster titled Beyond Genocide, in spite of the fact that the film won Golden
Lotus award, being the best non-feature film of 1987 and was granted U certificate by the Censor Board. The
reasons cited by Doordarshan were inter alia, the political parties had been raising various issues concerning the
tragedy, and the claims for compensation by victims were sub judice. Upholding the freedom of speech the Court
held: ..Merely because it is critical of the State Governmentis no reason to deny selection and publication of the
film. So also pendency of claims for compensation does not render the matter sub judice so as to shut out the entire
film from the community. The Court made it clear that subject to Article 19(2), a citizen has a right to publish,
circulate and disseminate his views to mould public opinion on vital issues of national importance. Hence, any
attempt to thwart or deny the same would offend Art. 19(1)(a). Under such circumstances, the burden would,
therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable and
permissible in law.
Again an award winning documentary film, In Memory of Friends about the violence and terrorism in Punjab was
rejected by Doordarshan even after been granted U certificate by the Censor Board reasoning if such documentary
is shown to people, it would create communal hatred and may even lead to a further violence. The court quashed the
order emphasizing: The State cannot prevent open discussion and open expression, however, hateful to its policies.
Everyone has a fundamental right to form his own opinion on any issue or general concern. He can form and inform
by any legitimate means [32].
Even in the case of the Da Vinci controversy, the Supreme court rejected the writ petition by the All India Christians
Welfare Association seeking a ban on the movie as it is blasphemous. The court found no point of objection when
the Censor Board and the Central Government has given a green signal. It also held that that no predominantly
Christian country had banned the film and there has been no definite reason forwarded by the petitioners to ban the
movie in India. In the States of Andhara Pradesh [33], Kerala and Tamil Nadu [34], the respective High Courts
quashed the bans imposed by the State Governments and also imposed costs on the governments. While upholding
the right to freedom of speech and expression, the Courts found the act of Governments irrational and
unconstitutional. They were of the opinion that the bans were imposed mechanically due to the veto of a few
people who objected rather than arriving at a decision based on informed satisfaction.
In all those cases of Da Vinci, it was alleged that the film violated inter alia, Article 25 [35]of the Constitution with
respect to the Christian community. The Madras High Court reasoned: As regards the harmonious interpretation of
Articles 25 and 19, it is clear from a reading of these provisions that the rights under Article 25 are subject to the
other provisions of Part III, which means they are subject to Article 19(1). It was not also clear before the court how
the exhibition of the film will interfere with anyones freedom of conscience or the right to profess, practise and
propagate a particular religion. Moreover, according to the court, under no circumstances blasphemy is a ground
under Article 19(2).
It is important to note that in the case of Union of India v K.M. Shankarappa [36], the Supreme Court
disapproved of the Government retaining powers by enacting Section 6(1). It held:
The Government has chosen to establish a quasi-judicial body which has been given the powers, inter alia, to decide
the effect of the film on the public. Once a quasi-judicial body like the Appellate Tribunal, consisting of a retired
Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its
decision that decision would be final and binding so far as the Executive and the Government is concerned. The
Executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic
structures of the Constitution. The Executive cannot sit in an appeal or review or revise a judicial order. At the
highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the
Government would be bound by the ultimate decision of the Tribunal. (Emphasis added) This judgment stands till
date.
segments of the society. Moreover, the procedure for grant of certificate of exhibition to a film is quite elaborate. So
its decisions must be given full weight. But the role and position of the Board is confusing. The members are
appointed and virtually controlled by the Government. However, the irony is that the game is not confined to only
scrapping of movies by the Board. Even a positive nod by the Board is not the final but depends on the Central
Government. Already instances have been forwarded where either State Government or State-owned Doordarshan
has scrapped movies even after being cleared by the Board and Central Government. In such circumstances, where
does the importance of the Censor Boards decisions lie? The statute provides for the construction of advisory panels
which can only make recommendations to the Board [41]. However, in case of Rang De Basant, the Board invited
defence minister and people from the forces; during Da Vinci they invited I & B minister along with representatives
of the Catholic Bishops Conference of India for their advice who actually had the final say. Next time to make a
film on the terrorists will the terror groups be invited to certify the content? If in every case, people from respective
spheres are to be called to verify the authenticity of the film and give binding recommendation then what is the
rationale of having a statutory expert body? On the other hand, while films on Gujarat massacre were banned, highly
provocative film like Gadar was allowed! Why this discrimination? At least the former pieces have basis on real
facts but the latter was a product of wild imagination.
Another aspect of this phenomenon is that irrespective of the effect of the movies, there is always a call for a total
ban without even exploring any other possibilities. In the recent judgment of the Supreme Court in State of Gujarat
v Mirzapur Moti Kureshi Kassab Jamat [42], stated that a total prohibition under Article 19(2) to (6) must also
satisfy the test that a lesser alternative would be inadequate.
The banning of films also has some other implications. While a film is banned, it does not only affect the freedom of
speech and expression of the director or producer, it affects the economical aspects of many people which are also
guaranteed under Article 19(1)(g) of the Constitution. Film making, distribution and screening are essential aspects
of films business, if the film is banned, it affect all those aspects which defiantly falls under Article 19(1)(g)? But
who will be responsible for it? Again, in many cases violent groups ransack theatres in protest against the screening
of certain films. It definitely affects the property of the theatre hall owners [43]. But the right to property is
inviolable under Article 300(A) of the Constitution without the authority of law. Hence, to allow ones properties to
be destroyed by some group of people is a clear deprivation of the right to property guaranteed by the Constitution.
So finally in such cases, the State fails in its duty to secure its citizens of various constitutional and legal rights.
Thus, the above discussion makes it obvious that the bans on the movies under different circumstances have not
been imposed on valid constitutional grounds but to serve the interests of different groups whether social, religious
or political. Under no circumstances, the bans of aforementioned nature can be justified.
Conclusion:
The reasonable restriction under Article 19(2) was invariably for public interest but it has been twisted on many
occasions to strangulate the freedom of speech and expression. The result is that we have been deprived of several
films as it does not satisfy the taste of others. If this is the case, the question arises do we really need this
restriction? The First Amendment to the US Constitution states: Congress shall make no law abridging the freedom
of speech, or of the press. Over 200 years has passed since that amendment and after witnessing all those arbitrary
acts in our country, reasonable restriction really needs consideration in the so-called globalized and liberal world.
All the time the excuse of India being a diverse country with unique set of problems has been put forward and the
need of restrictions has been over emphasized. But in reality the restrictions have served more in the negative sense
than for positive development.
In todays world with enormous improvement in information technology, restraining movies in the name of
maintaining public peace, respecting emotions of people and similar reasons are simply ridiculous. There are
numerous alternative sources through which the news and views depicted in the movies are articulated to the general
public. So, restraining movies does not serve any purpose. On the other hand, it may actually give wrong message to
the public through indirect interpretation. It is always the best that the viewers themselves watch it and form his/her
own opinion. General public may be devoid of proper education but not always of common sense. It is the selfish,
tampered groups who twist the subject matter and mislead other people to serve their own purposes. Conversely, no
group takes the role of a proper guide. Neither Da Vinci nor the other instances dealt with in the article clearly prove
that the imposed bans did have any strong legal foundation.
After analyzing all those incidents, judgments and statutory settings, the activities and rationale of having a censor
board is also highly debatable. If at all we need to have such a body it needs to be more autonomous, whose decision
will be the final rather than to be a puppet in the hands of the government. In this light, the judgment of Shankarappa
is much needed adrenalin. Furthermore, scrapping movies even after the clearance by the Censor Board is not only
an arbitrary act but a dangerous trend of heightened intolerance. On a whole, the courts have done a laudable job in
this respect but time and again similar issues have been raised. Hence, a permanent solution is essential. One such
effort may be to revamp the 1952 Act altogether. However, in the given circumstances of todays world, it is better to
have a rating body than a censor board. Again, power of limited censorship cannot be delegated to the states
arbitrarily. They must have to satisfy the central authority as to why the ban in their territory is indispensable, and
that there is no alternative left. The most important of all is that the censor board must be an autonomous body and
to whom the Government can forward its suggestions/recommendations but the decision must be taken by the board
alone independently.
While we enthusiastically profess right to information, we cannot sit back and ban films and hence, censor
information. And if an unlawful means is adopted by any person(s) to stop screening of films, the Government has
to ensure that law and order is maintained by taking appropriate actions against the person concerned. In case the
Government fails in its obligation, it must be held for contempt of court. Hence it can be concluded, if democracy
has to evolve, screening of films can never be denied for reasons based on mere speculation because banning films
is equivalent to banning the right of freedom of speech and expression. And if such events persist, it reflects nothing
but the words of the US Supreme Court justice.
***************************
End Notes:
[1] The seven states are: Goa, Kerala, Meghalaya, Nagaland, Tamil Nadu, Andhra Pradesh and Punjab.
[2] Its a worldwide bestseller with more than 60.5 million copies in print (as of May 2006) and has been translated
into 44 languages. (The Da Vinci Code, available at http://en.wikipedia.org/wiki/The_Da_Vinci_Code)
[3] It racked up $231.8m at box offices around the world in its first weekend which is the second most successful
opening in history after Star Wars: Revenge of the Sith, which made $253m. (Punjab ban for Da Vinci Code film,
available at http://news.bbc.co.uk/1/hi/world/south_asia/5017498.stm)
[4] The card reads: "The characters and incidents portrayed and the names herein are fictitious, and any similarity to
the name, character or history of any person is entirely coincidental and unintentional."
[5] Monica Chadha, "Indian censors win Da Vinci fight" available at
http://news.bbc.co.uk/1/hi/world/south_asia/5011314.stm
[6] For details, see, "Muslims join Da Vinci criticism available", at
http://news.bbc.co.uk/1/hi/world/south_asia/4985370.stm
[7] "India court blocks Da Vinci ban" available at http://news.bbc.co.uk/2/hi/entertainment/5074578.stm
[8] Jasmine Yuen-Carrucan, "The Politics of Deepa Mehtas Water", available at
http://www.brightlightsfilm.com/28/water.html
[9] Deepa Mehta's earlier films Fire and Earth also attracted hostility from Hindu fundamentalists who objected to
her subject matter and had organized attacks on cinemas that screened the films.
[10] "Final Solution", available at http://www.rakeshfilm.com/finalsolution.htm
[11] For details, see, "India bans religious riot movie" available at
http://news.bbc.co.uk/1/hi/entertainment/film/3542340.stm
[12] "21 cuts demanded by Censor Board on War and Peace", available at
http://www.frif.com/new2002/wandp3.html
[13] "Aftershocks: The Rough Guide to Democracy", available at
http://www.mediarights.org/film/aftershocks_the_rough_guide_to_democracy
[14] "Arrests made in India over screening of film on the Manjolai massacre", available at
http://www.wsws.org/articles/1999/dec1999/tami-d30.shtml
[15] While the later was denied a censor certificate, the former was withdrawn from the cinemas. It was re-released
a few weeks later when Mrs. Gandhi herself cleared it after consulting some critics.
[16] A case was registered and the Sessions Court, Delhi found the accused guilty. However, the Supreme Court
overturned the decision. Refer to, V.C. Shukla v. State (Delhi Administration), AIR 1980 SC 1382.
[17] Article 19(3) of the ICCPR.
[18] The grounds are: 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 offense.
[19] Sanctioning of cinematograph films for exhibition.
[20] Theatres and dramatic performances; cinemas subject to the provisions of entry 60 of List I;
[21] The guidelines were revised in the year 1991. For details, see,
http://www.cbfcindia.tn.nic.in/guidelinespage1.htm
[22] AIR 1971 SC 481.
[23] (1989) 2 SCC 574.
[24] In the meantime, the film had already won National Award by the Directorate of Film Festival of the
Government of India.
[25] Similar view was held way back in the case of Bhagwati Charan Shukla v. Provincial Government, AIR 1947
Nag 1.
[26] It was based on a book written by Sree Bhisham Sahni.
[27] AIR 1988 SC 775.
[28] AIR 1988 SC 1642.
[29] 1995(2) ALD 81.
[30] Same provision was used to ban The Dan Vinci Code in the State of Andhra Pradesh.
[31] AIR 1993 SC 171.
[32] Anand Patwardhan v. The Union of India and others, AIR 1997 Bom 25.
[33] Lakshmi Genesh Films & Others v. Government of Andhra Pradesh & Others, W.P. Nos.11006, 11381 and
11575 of 2006.
[34] Sony Pictures Releasing of India Ltd. and another v. Sate of Tamil Nadu and Others, W.P. No.18230 of 2006
[35] Freedom of conscience and free profession, practice and propagation of religion
[36] (2001) 1 SCC 582
[37] AIR 1978 SC 597
[38] (1995) 2 SCC 161
[39] AIR 1986 SC 515
[40] The source of population data is the Census of India report, 2001.
[41] Section 5.
[42] 2005(8) SCC 534
[43] It may be mentioned that Activists of All India Christian United Front stormed ransacked the premises of a
multiplex in Hyderabad and forced the theatre management to stop screening of the Da Vanci Code, even after the
AP High Court quashed the ban in the State. (Da Vinci Code: AICUF activists ransack multiplex premises:
available at http://www.outlookindia.com/pti_news.asp?id=394168)
struck of the legislations. Politically, nobody will do it, because we have such a huge vacuum of leadership that
nobody has the guts to step up and suggest such changes.
Conclusion
If the government has certified that a particular movie is for adults only, even then the scenes are deleted. This
happens especially so in foreign movies which are released in India. The word fuck, which may have varied
meaning, is effectively scrubbed out of a film and its subtitles. Newspapers carry revealing pictures of actresses and
print adult jokes which can be read by children pretty easily. Ironically the Board makes sure that the kissing scene
is deleted from a particular movie. How could it be constitutional to prevent the free broadcast of news over radio,
for instance, or to prohibit speech online that causes annoyance? Not only speech restricting laws not being struck
off, but more such laws are being added to the statutes all the time.
Then on reflection what is the difference between India and China. China being a Communist country, there are
really strict laws for public speaking and speeches and it is impossible to speak anything against the government.
The same thing is happening in India. Article 19(1)(a) should be struck of because there is no freedom of speech and
expression left in our country. Democracy is going to dogs. People cannot speak out their minds. There is
communalism and dictatorship. But cases like Akbaruddin Owaisis hate speech against the Hindu sect harmed the
religious sentiments of many. This is one example of misuse of this freedom of speech and expression under the
Indian Constitution.
It seems that censorship can be a weapon in the hands of the State to make people agree with its ideology. Often the
Censor Board functions to impose the State's notion of Indianness and nationhood. The reach and power of films in
India is massive. If a director wants to show the reality, he has to put it in a movie and then what happens, the censor
board removes it. The Dirty Picture and other 'A' films, according to the Broadcasting Content Complaints Council
(BCCC), can be screened on television without cuts after 11pm. The BCCC suggested some sort of a coordination
mechanism between the Central Board of Film Certification and the TV regulatory body for the certification of films
for TV viewing. By this does it mean that the T.V is meant for children and not adults? Now is the time to look into
the role that can be played by healthy criticism, analysis, and cinema literacy, rather than relying on a Censor Board
that acts as a moral police, stopping the dissent.