Palekar PIL could change censorship law in India

Source – indiatimes.com

“Why censor anything at all…it’s so rigid today,” said a friend who felt that all attempts to ‘curb’ were restrictive and wrong. Films have always been closely associated with Freedom. “But, Freedom comes with riders. Your freedom should not hurt another’s,” I said, “In our quest for freedom, we must ensure not to break the law.” Also, the issue of curbs being ‘unequally distributed,” across media and hence violative of Article 14 of the Indian Constitution that guarantees Equality is of topical importance.

Actor-filmmaker Amol Palekar’s Public Interest Litigation challenged the ‘pre-censorship’ of films and, in particular, the provisions of the Cinematograph Act, 1952 and the Cinematograph (Certification) Rules, 1983 which, in turn, impose pre-censorship on the freedom of speech and expression of the artistes as well as the audience. The issue isn’t a new one.

In the petition, that earned populist accolades from across the nation, Palekar touches upon a brand new area and one that needs urgent attention. The petitioner contended,in the age of internet and social media, the existing set of rules providing for pre-censorship of films have to undergo change. Also, filmmakers across the nation with the media close on its heels have been screaming out that the Central Board of Film Certification(CBFC) is “not a Censor Board but a Certifying Board” and allege they have been misusing their powers.

Seeking a revamp of the Cinematography Act, 1952 and the Censor Board, Palekar said the contents uploaded on social media are free from pre-censorship but those very things attract alternation, deletion or cuts when it comes to films.“When content on television and internet is free of censorship, the same content being altered, cut or deleted before being shown in a cinema hall is an attack on our right to equality,” read the petition calling for a change in rules in the present day.

“Today modern technology makes dissemination of information available in real time through a variety of media, many of which are either not regulated or if regulated, not subjected to pre-censorship,” Palekar said.

The Supreme Court has, in response, issued notices to the Centre and CBFC asking them both to file replies to the plea. That is being perceived, in itself, as a win of sorts as the moot issues will now come to fore and be examined legally, once again.

There are, primarily, two issues in question being examined here. One, being the role, extent and jurisdiction of CBFC in certifying films and second being filmmakers’ Right to Equality being flouted owing to lack of censorship in screening and airing of content across online fora.

Firstly, it’s vital to understand the role of CBFC, which is a body constituted under the Cinematograph Act, 1952. Section 3 of the same, titled‘Board of Film Censors’ provides details of the constitution of the Board, which shall consist of a Chairman and not less than twelve and not more than twenty five other members appointed by the Central Government. That it’s a Censor Board is a given through the very Act from which it derives legitimacy.

The Cinematograph Act, 1952 prescribed all movies aimed at “public exhibition” will be first examined by the CBFC. The Board can ask for parts of the movie to be cut or removed before showcasing it in public in case it is “against 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 involves defamation or contempt of court or is likely to incite the commission of any offence”.

CBFC’s power to censor was justified by the Supreme Court when it said the CBFC had the right to ask for cuts while certifying a film. It was decided by the Supreme Court, in K.A. Abbas versus Union of India, in September 1970. The CBFC had asked for certain scenes to be cut in Abbas’ documentary ‘A Tale of Four Cities’. The award-winning filmmaker moved the Supreme Court saying the cuts amounted to a violation of his “freedom of expression.”

The court had then approved of censorship and noted in its judgement, “Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.”

It said films were a powerful media and had greater impact than books. It ruled that censorship, including cutting parts of movies before public release, was valid under the Constitution.It also ruled that in the absence of any self-regulatory organization that could suggest or ask for cuts in films, it was up to the government-appointed CBFC to do so. So, the issue of the authority of CBFC to censor and ask for cuts in films too has been tackled in a precedent.

Television, which Amol Palekar moots is beyond the reach of CBFC and censorship, was separated from radio only later in 1976. In fact, national telecasts were introduced in 1982 and in the same year, colour TV was introduced in the Indian market. Indian small screen programming started off in the early 1980s: A good decade after the Supreme Court judgement on censorship.

Now, consider the inception of the second player – who went on to become the largest and the most dynamic in the media industry – the Internet. The history of the Internet in India began with the launch of the Educational Research Network (ERNET) in 1986. And, the first publicly available internet service in India was launched by state-owned Videsh Sanchar Nigam Limited (VSNL) on August 14 1995.YouTube, in particular, which operates beyond the reach of CBFC and censorship in India is an American video-sharing website created by three former PayPal employees – Chad Hurley, Steve Chen, and Jawed Karim – only in February 2005. YouTube was launched in India in 2008.

It was an Enquiry Committee on Film Censorship headed by G.D. Khosla, a former Chief Justice of the Punjab High Court appointed on March 28, 1968 which submitted its report on July 26, 1969 and analysed very many provisions of the Cinematograph Act, 1952, the Cinematograph (Censorship) Rules, 1983 (in supersession of the Rules of 1958), and the censorship guidelines, framed by the Government of India on December 6, 1991.

Fundamentally, the Khosla report envisaged an “independent and autonomous Board of Film Censors”. It urged repeatedly that the censorship code be drawn up by the Board itself and not by the government. The code, it thensuggested,was a diktat by the government, which also acted as the supreme authority for its enforcement.

In the absence of an alternative authority to censor, which, in itself, is not being questioned or refuted,the Supreme Court judgement of 1970 in the K.A. Abbas case, ruled that the government-appointed CBFC was the only available option. But, that was then.

More recently are the recommendations of the committee led by Shyam Benegal set up by the Information and Broadcasting Ministry to look into revamping the Censor Board.

The need for law to be in sync with social transformation is felt by the film industry more now than ever. Amol Palekar’s PIL provides the perfect platform to the Supreme Court to re-examine the legislation and provide directions to the Centre and authorities to tweak the law, once again, to match the need of the moment. But, it remains to be seen if the Centre and its subjects are content with the directives passed.

In its display of judicial activism, while upholding reasonable restrictions and the need for censorship to maintain public order, decency and morality, the Supreme Court could well pass an order to expand the Censor Board or any other independent authority/body’s reach and bring Television and the Internet also within its ambit and not nip or trim censorship as may be expected, sending everyone in a tizzy. The Supreme Court’s recent order on Bars along Highways, a case in point, sent states across the nation and its people scurrying for cover and ‘de-notifying’ highways only to evade the reach of law. Time will tell!