ROLE OF PRE-CENSORSHIP IN MOVIES

This Article is written by Varnika Verma student of  Chanakya Law College, Kumaun University, Uttarakhand.

Pre-Censorship

Prior inhibition is a censorship that is imposed by a government or organisation or an institution on the expression that restrains specific instances of expression. It is in covenant to censorship which inaugurates general subject matter restrictions and reviews a particular instance of expression only after the proclamation has taken place.

Films (Movies)

Films are appraised as a major mass medium because of their mass attraction and influence on society. By the term ‘Film’ we mean: “motion pictures as individual projects, along with the field in general the origin of the name ‘film’ comes from the fact that pictorial film (also called ‘film stock’) was historically the foremost medium for recording and displaying motion pictures. Many other terms exist – ‘motion picture’ ( or just ‘pictures’ and ‘picture’), the ‘silver screen’, ‘big screen’, ‘photo plays’, ‘cinema’, ‘picture shows’, ‘flicks’ – and commonly ‘movies’.

Movies are fabricated by videotaping individuals and objects with cameras or by generating them using animation techniques and special effects. They embrace strings of individual frames, but when their images are shown rapidly in succession; the illusion of motion is given to the viewer.

Film is considered by many to be an important art form; films entertain, educate, enlighten and inspire the audience. Movies are artefacts produced by specific cultures, which through back those cultures, and, in turn, affect them. Any film can become a worldwide attraction, especially with the audition of dubbing or subtitles that translate the film message.

Legal Framework of Censorship in India

In India, legal control cannot be placed on religious expression in the media or blasphemy per se, this is due to the fundamental right to freedom of speech and expression, having its genesis in the constitution, cannot be restricted otherwise than as provided under the constitution itself. The various laws referred to here that place restrictions on expression on religious grounds take root from the constitution’s permission to impose some restriction on free speech.

The Constitutional Framework

Article 19(1)(a) of the Constitution of India carries an essential right with respect to the media. This provision guarantees citizens of India “freedom of speech and expression”. Earlier, corporations could not exercise the rights provided under Article 19. This has gradually been diluted, however, with ruling permitting shareholders of corporations to exercise the rights under Article 19. Currently the position as regards the fundamental right granted under Article 19(1) (a) is that citizens have a right to freedom of speech and expression, and as for corporations, shareholders may enforce the right on its behalf.

The right provided under Article 19 (1)(a) is not an absolute right. There are restrictions on this right, detailed under Article 19(2), reasonable restrictions may be placed by a law in the interests of safeguarding the citizens of India and to protect the sovereignty and integrity of India.

Definition And Meaning Of Censorship

The New Encyclopedia of Britannica defines censorship as the suppression or prohibition of speech or writing that is condemned as subversive of the common good. Collier’s Encyclopedia defines censorship as any system for examining important items of information, opinion, dramatic representation, pictures and works of art, and similar matters touching upon public opinion or taste – but especially supervision by a political jurisdiction over questions of political belief and social morality. However, the contemporary usage is not commonly agreed upon.

Censorship can bear on both written as well as oral communications. Its range circumscribes books, magazines, journals, newspapers, radio, TV, movies, dramas, paintings, speeches, dance, music, art, literature, photographs, emails, websites etc, deemed to be offensive, indecent, obscene and sexually explicit.

Types of Censorship

Broadly speaking censorship has mainly been practiced in two forms: preventive and punitive according to whether it is exercised before or after the expression has been made public. It has been exercised by different authorities or institutions, hence, the term religious censorship, state censorship and private censorship.

The Cinematograph Act, 1952

In India, the film industry is a mammoth with more than 1000 movies produced per year. The union legislation derives its power to make laws on censorship of cinema from the entry 60 under Schedule VII of the Constitution of India. The state is also authorized to make laws on this matter, subject to the provisions made by the central legislation. To keep a check on the content which the movies show the viewers, the Cinematograph Act was enacted.

In 1952, the constitution of Censor Board of Film Certification consisted of 12-25 members which were appointed by the central government. The CBFC examines the films and grants them a certificate for the exhibition and prohibits their release or direct modifications. The numerous categories of certificates are granted by the Censor board that are U for the films which are suitable for all the audience; U/A for the films which the board observes it fine to be viewed by children under the age of 12 only under the supervision of guardian/ parents; a if the content is not suitable for audience under the age of 18 and S if the presentation is restricted to members of a particular profession. The ground for restricting the films is provided under Section 5(B)1 which are in accordance with reasonable restrictions under Article 19.

The applicant for the certificate is to be given a reasonable opportunity to present his case in the case the movie is to be granted a certificate other than U or U/A. The Act also states for the establishment of an Appellate Tribunal to appeal against the decision of the Censor Board. The Tribunal is headed by the retired judge of a High Court or any person qualified to be a judge of the High Court and consists of 4 other members. The central government has power to call for the record of any proceeding except the proceeding pending before the Appellate Tribunal. If a film is exhibited without the certificate of the Board, then exhibited without the certificate of the Board, the exhibitor is liable for punishment.

Role of Judiciary

There is always a debate on the validity of censorship as a means to ensure reasonable restriction on the right to freedom of speech and expression. The judiciary has again drawn a line between what comes under freedom of speech and expression and what its abuse. The rights of artists are stiffened and the unnecessary censorship struck down.

The Supreme Court in K.A. Abbas v. Union Of India for the first time upheld that the films are within the ambit of Article 19(2) and observed that since motion pictures have a great impact on the audience; it should be treated in a different manner from the out-forms of art. In Raj Kapoor v. Lakshman the Supreme Court held that the initiation of criminal processes for obscenity etc. under IPC is not sustainable if the films has been passed by the censor board. However, the court also maintained that the bar is not absolute, and the filmmaker has to participate in the legal proceedings and claim the safeguard. The decision of the court in S. Rangarajan v P. Jagjivan Ram is very important.

In the recent case, the Tamil movie `ore oru gramathile` was prohibited by the government despite it having received a U certificate from the censor board. The movie mentioned about the reservation and how it should be given on the basis of economic status rather than caste. The Supreme Court invalidated the ban and observed, “Movies are the legitimate and the most important medium in which issues of general concern can be treated. The producer may project his own message which the others may not approve of, but he has a right to` think out` and put the counter appeals to reason. It is a part of democratic give-and-take to which no one could complain. The state cannot restrain open discussion and open expression, however, hateful to its policies”.

In Anand patwardhan v. Central Board Of film certification, the petitioner was asked by the censor board to carry out cuts in one addition in order to receive a U certificate for his movie “war and peace”, the petition was filed against the direction of censor board.

Arguments For and Against Censorship of Films:

The government has banned many movies under the garb of reasonable restrictions. Many controversies were raised regarding the content of various movies such as  Vishwaroopam, parzania, bajirao mastani  to name a few, as a result, these movies have been banned in sensitive areas. Movies, for instance, Kissa kursi ka was banned during emergency because it was allegedly based on Indira Gandhi’s life. Shah commission was instituted to inquire into the excesses committed during the emergency and found Sanjay Gandhi responsible for burning the prints of the movie. Certain movies were banned as they were based on issues which could stir up communal enmity like Garam Hawa, Black Friday etc.

People who oppose such bans argued that the movies should not be banned and people should be given the freedom to form their opinions after watching the movie. This is because the grounds provided under Section 5 in Cinematography Act, 1952 are very subjective and broad. People who support censorship argue it protects the vulnerable sections of the society like children who can easily get influenced by the contents and things which are truly offensive and inhuman should reach the audience.

‘U’ certificate, provided that patwardhan carried out two cuts and one addition as per its order. The said order was challenged before the High Court of Bombay and the Court observed that the cuts recommended by FCAT were merely to harass the petitioner, regarding addition, the court observed that it must be left to the discretion of the film maker”.

In another case, while overruling the FCAT’s order to censor the movie, ‘Chand bujh gaya’, the Bombay High Court in F.A.Picture International V. Central Board Film Certification propounded: “censorship is an unfettered association than can be tolerated in the narrowest possible confines and strictly within the limits which are contemplated in a Constitutional order”.

Some Recent Controversial Films:

MSG (Messenger of God): the controversial movie was based on Dera Saccha Sauda chief Gurmeet Ram Rahim Singh which was written, produced and directed by the chief himself and Jeetu Arora under the Hakikat Entertainment Pvt. Ltd. Banner with Singh in a lead role. The film was supposed to be released on 16th Jan 2015 but was struck with the censor board for its clearance. The film underwent the board’s examination that raised objections against the film alleging that it is showing the self-styled Guru projected himself as a God man.

The censor board declined to give clearance certificate as according to it the film was unsuitable for public exhibition. The producer of the film put forward an appeal before the FCAT at Delhi. FCAT fast tracked the issue and the movie was cleared within 24 hours, which usually takes 15-30 days for the completion of the procedure.

The FCAT has directed the CBFC to issue the clearance certificate the film has been scheduled to be released with a mandatory disclaimer on Feb 13, 2015 across the country targeting 3000-4000 screens. This resulted in the resignation by the CBFC Chief Ms. Leela Samson followed by mass resignations by the other board members.

In the case of Udta Punjab where the judiciary stepped in and whipped the central board of film certification on its overreach is that of the controversy surrounding the film Udta Punjab. In this case the board refused to certify the film Udta Punjab which is based on the drug menace prevailing in the state of Punjab. In regard to its refusal to certify, the board suggested almost 89 cuts in the movie as a mandatory to seek certification.

However, the Bombay High Court criticized the central board of film certification on the appeal filed by the filmmaker for its conduct and poor way of handling the issue. The court observed that the board is not necessarily empowered to censor films. However, the term “censor” is nowhere mentioned in the cinematograph act.

The board is authorized to make changes in the film but this power must be exercised in consonance with constitutional guarantee and Supreme Court orders. It has been spotted that the Board has manipulatively extended its power which is mainly meant to be restricted to certification of films for the purpose of exhibition only, which includes within it the power to censor also.

This gesture of the board has been observed to be politically motivated which puts the rights of the citizens in danger.

Conclusion

A cinematograph is a form of art used to express emotions, ideas, opinions and thoughts of an individual, which have been protected under freedom of speech and expression with regard to reasonable restriction under the provisions of Article 19(2). The process of censorship has been explained in the Cinematograph Act, 1955. There are various landmark judgements that have been mentioned above which have mostly arisen out of a conflict between the fundamental rights Article 19(1) the restrictions under Article 19(2)

It is a very gauzy matter as it is the responsibility of the state to protect the fundamental rights of its citizens and every action while sanctioning the censorship shall be analogous to the reasonable restrictions.

References

  1. Wikipedia, https://en.wikipedia.org/wiki/Prior_restraint#:~:text=Prior%20restraint%20(also%20referred%20to,prohibits%20particular%20instances%20of%20expression.
  2. Wikipedia, https://en.wikipedia.org/wiki/Film#:~:text=Film%20is%20considered%20to%20be,educating%E2%80%94or%20indoctrinating%E2%80%94citizens.&text=The%20name%20%22film%22%20originates%20from,recording%20and%20displaying%20motion%20pictures.
  3. India Const. art. 19.
  4. Britannica, https://www.britannica.com/topic/censorship
  5. Legal Service India, http://www.legalserviceindia.com/legal/article-351-censorship-of-films.html
  6. Andrzej Wajda, Two types of Censorship, Journals, (Dec. 25, 2020 1:29 PM), https://journals.sagepub.com/doi/pdf/10.1080/03064228808534416.
  7. The Constitution of India, 1949.
  8. (1970) 2 SCC 574.
  9. 1980 SCR (2) 512.
  10. (1989) 2 SCC 574.
  11. 2003 (5) Bom CR 58.
  12. AIR 2005 Bom 145.
  13. Legal Service India, http://www.legalserviceindia.com/legal/article-351-censorship-of-films.html
  14. Legal Service India, http://www.legalserviceindia.com/legal/article-351-censorship-of-films.html
  15. Business Standard, https://www.business-standard.com/article/current-affairs/explained-the-noise-surrounding-the-udta-punjab-controversy-116060800659_1.html#:~:text=The%20debate%20around%20film%20censorship,state%2C%20including%20in%20the%20title.