Pooja Ganesh | SASTRA Deemed University | 6th October 2020
Introduction
Democracy is a government formed and sustained by discussion. Public opinion and effective participation in the government are compulsorily needed in the democratic society. Freedom of speech is required to maintain the moral and intellectual value of both individuals and the nation. An individual attains self-fulfillment in knowing the truth by invoking free speech and thought. In Article 19 of the Indian Constitution, freedom of speech and expression forms as one of the six freedoms guaranteed. It is considered as the foundation of all democratic organizations.[1] Opportunity for the free exchange of thoughts with reasonable restrictions is ensured in the constitution. Article 10(1) of the European Convention on Human Rights stresses the freedom of speech.[2]
A person can express his/her opinion freely through word of mouth or in writing in the form of art, literature, visual, or any other mode of communication. Freedom of speech also includes the right to know or acquire information and convey that information to the public at large.[3] Motion pictures are not expressly mentioned in Article 19 (1) (a) as a part of freedom of speech and expression, but various court decisions have accepted it. Even in the medium of motion pictures, there is a restriction or denial of freedom of speech and expression by way of “censorship”. Films or part of films can be censored on the basis of sex, obscenity, violence and to maintain public order. But public criticism is very helpful in the working of the institutions,[4] but due to censorship, the thoughts are not freely shared in society.
Censorship of films
Censorship is derived from the word the Latin word ‘censere’. The power of legislation of censorship is vested under Entry 60 of the Union List of Schedule 7 of the Indian Constitution. Subject to Central legislation, the State has also the power to make laws regarding films under Entry 33 of State List. The Cinematograph Act, 1952 is regarded as the prime legislation which regulates the films by ensuring that it satisfies the objectives prescribed by law. This Act also empowers the Government to establish a Central Board of Film Certification. The censor board constitutes of 12 to 25 people. They examine the films and provide sanctions for the films to release for public exhibition. The public exhibition can be restricted or unrestricted and sometimes the board may restrict the film from the exhibition or directs to make changes before the exhibition. Section 5B of the Cinematograph Act, 1952 provides principles in certifying films and grounds for restriction of films from public exhibitions. Section 5B of the Act aligns with the reasonable restrictions mentioned under Article 19(2) of the Constitution.
If a party is not satisfied with the order of the Board, then they can appeal to the Central Government. K. A. Abbas v. The Union of India[5] was one of the first cases filed against the issue of film censorship. In this case, the court held that pre-censorship is constitutionally valid but the board should not impose any unreasonable restriction on the freedom of speech and expression. The amendment in 1974 transferred the appellate jurisdiction of the Central Government to Film Certification Appellate Tribunal (FCAT).[6] This body consists of Chairman and 4 other members. The Cinematograph Act was again amended in 1981.[7] This amendment vested the revisional powers with the Central Government under Section 6(1) and diminished the powers of FCAT.[8]
Types of film certifications
- Universal (U): This certificate is provided for unrestricted public exhibition. There is no limitation based on age groups.
- Parental Guidance (UA): This certificate is provided for all age groups. But children below the age of 12 should be accompanied by their parents.
- Adults only (A): This certificate is restricted only to adults. Persons above the age of 18 years are only allowed to watch the movie.
- A special class of Persons (S): The nature and theme of the movie restricts the audience. Only a few special classes of people are allowed to watch the movie.
The Central Government may issue directions to the board in issuing the certificates for films.
Reasonable restrictions for social control
An individual can exercise his right to an extent without colliding with the rights of others. Liberty always comes with the aspect of social control. Reasonable limitations are acceptable to maintain social order and public interest. Clause 2 of Article 19 of the Indian Constitution enumerates the grounds on which reasonable restriction can be imposed. The principle of reasonableness calls for the judicial review, which checks upon the constitutionality of the acts of legislative and executive bodies.[9]
Section 5B (1) is similar to Article 19(2) of the constitution, because both insist on the grounds of reasonable restrictions, like:
- Sovereignty and integrity of India
- Security of the State
- Incitement to an offence
- Friendly relations with foreign states
- Public order
- Decency and morality
- Involves defamation
- Contempt of court
In a few instances, the FCAT has placed a ban on movies that would provoke communal feeling and the desire for revenge which will lead to obstruction of peace in society.[10] Many films have been pulled into controversy because they hurt the religious feeling of their community. “PK”, a Hindi movie, is one such movie which hurt the religious sentiments of the people and it led to a huge controversy in the Bollywood. All forms of freedom of speech are subject to censorship. Often the reasonableness of censorship regulations is questioned. But cinema has the potential to influence people and there is a possibility of misuse of this medium of freedom of speech and expression, therefore restrictions like film censorship are justifiable in this society.
One of recent attack on freedom of speech is the letter issued by Ministry of Defence to the Central Board of Film Certification demanding “No objection certificate” for films and series depicting the military personnel in their uniforms.[11]The increased number of army themed movies has become a concern for the ministry of defence. Article 33 of the Indian Constitution specifies that the armed forces should be given special treatment for their services. For proper discharge of their duties and to maintain discipline among them in their field of work, a reasonable restriction can imposed on the freedom of speech.
Judicial intervention in safeguarding freedom of speech and promoting individual liberty.
“Censorship in a free society can be tolerated within the narrowest possible confines and strictly within the limits which are contemplated in a constitutional order.[12]”
The Supreme Court and High Court have contributed a lot in safeguarding the rights of the people with reasonable restrictions. Many films, documentaries, and television series have been censored by the judiciary, but in most of the cases, the court has upheld the freedom of speech and expression. In S. Rangrajan v. Jagjivan Ram[13], the Madras High Court revoked the certificate issued to a Tamil movie. The film was based on the reservation policy and it also mentioned remarks about B.R. Ambedkar and other personalities. The appeal was made to the Supreme Court, and the freedom of speech and expression was upheld. The Supreme Court held that people in a democratic government can be ruled only through open discussion. The prosperity of democracy attains only when the people share their views and it is the duty of the state to protect the fundamental rights of the people. Therefore, the order of the High Court was overruled.
In “Bandit Queen” case[14], it was held that the film should be judged based on the entirety and its overall impact, therefore the court upheld the freedom of speech and expression. Authorities cannot pass an order for restriction of the exhibition without watching the movie. The court can quash the impugned order as arbitrary.[15] An act of abuse of power by the Censor board is a clear violation of freedom of speech and expression.[16] The protest of Christians against the movie “Da Vinci Code” was very popular in the media. A writ petition was filed by the All India Christians Welfare Association for placing a ban on the movie as it hurts their religious sentiments. The Courts of few states like Kerala[17] quashed that the ban imposed by the state government as it was irrational and unconstitutional. The Supreme Court upheld the fundamental right to freedom of speech and expression even in this case. In one of the cases filed against the channel Doordarshan, the court held that there is no prima facie evidence to prove that the show was against the public interest, therefore the injunction order was struck down and freedom of speech was ensured.[18]
Conclusion
The Indian Constitution protects both the fundamental rights of the people and the rights of the artist or filmmakers to portray the reality of society. But a conflict arises between these two rights when the portrayal challenges the peace and order of society. In this censored society, freedom of speech and expression is been restricted. Legal restraints on the exhibition of movies should be imposed only if it is not arbitrary. In a democratic society, people have the right to be aware of the changes or developments that take place.[19] Banning movies is equal to banning of freedom of speech and expression. Motion pictures are an instrument used to freely share their ideas and make people aware. The basic human right should not be restricted in this civilized society. On the other hand, a person should consider the practical realities before exhibiting anything in the public. A strike of balance should be implemented to protect the personal liberty of the filmmakers and social control in society.
[1] Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124.
[2] The European Convention on Human Rights (1975) 151-157.
[3] Secretary, Ministry of I & B v. Cricket Association of Bengal, A.I.R. 1995 S.C. 1236.
[4] Bennett Coleman v. Union of India, A.I.R. 1973 S.C. 106.
[5] K. A. Abbas v. The Union of India, A.I.R. 1971 S.C. 481.
[6] The Cinematograph (Amendment) Act, 1974, No. 27, Acts of Parliament, 1974.
[7] The Cinematograph (Amendment) Act, No. 49, Acts of Parliament, 1981.
[8] M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTARTIVE LAW 428-29.
[9] Shashi P.Mishra, Fundamental Rights and the Supreme Court: Reasonableness of Restrictions (1984) 43-46.
[10] Ramesh Pimple v. Central Board of Film Certification, (2004) 5 B.O.M. C.R. 214.
[11]Defence Ministry to CBFC: Production houses may be advised to seek NOC on Army theme content, THE TIMES OF INDIA, July 31st, 2002, available at https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/defence-ministry-to-cbfc-production-houses-may-be-advised-to-seek-noc-on-army-theme-content/articleshow/77288805.cms.
[12] F.A. Picture International v. Central Board of Film, A.I.R. 2005 Bom 145.
[13] S. Rangrajan v. Jagjivan Ram, (1989) 2 S.C.C. 574.
[14] Bobby Art International v. Om Pal Singh Hoon, (1996) 4 S.C.C. 1.
[15] Sree Raghavendra Films v. Government of Andhra Pradesh, 1995 (2) A.L.D. 81.
[16] Anand Patwardhan v. Central Board of Film Certification, 2004 (1) M.A.H. L.J. 856.
[17] Kerala HC declines to ban The Da Vinci Code, THE TIMES OF INDIA, May 25, 2006, available at http://timesofindia.indiatimes.com/articleshow/1568062.cms.
[18] Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, A.I.R. 1988 S.C. 1642.
[19] Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, A.I.R. 1986 S.C. 515.
Leave a Reply