Limits of Tolerance

The recent drama around the resignation of the chairman of the
Central Board of Film Certification has served to focus attention on
some basic issues of film censorship/certification in India and the
limits of tolerance and sensitivity associated with the current
censorship regime. But it has also overshadowed the issue of
politically motivated film censorship, cases of which are becoming
all too frequent.

Someswar Bhowmik

On July 13, 2002, Vijay Anand resigned his post as the chairman of
the Central Board of Film Certification (CBFC). Evidently he had
incurred the wrath of the ministry of information and broadcasting by
suggesting the designation of cinema halls for exhibition of films
replete with sexually explicit visuals. In an exhibition of vulgar
highhandedness the government expressly forbade him and the CBFC to
even discuss this proposal internally. And he left in a huff.
Consequently, Anand has been dubbed a martyr in many quarters, and
the government castigated for its role as 'culture police'.

Anand's humiliation is rather intriguing. The government knew all
along that Anand had initiated a thorough review of the Cinematograph
Act, 1952 with a view to its possible liberalisation; and the
controversial proposal was just a minor element within that process.
The government has now installed the former BJP MP Arvind Trivedy
Lankesh as the chairman. Best known for his role as Ravana in Ramanad
Sagar's serial 'Ramayana', Trivedy has been a Revising Committee
Member of the CBFC for the last four years. Immediately upon his
elevation to the Chairmanship Trivedy has expressed his opposition to
the proposed review of the Cinematograph Act or even the censorship
guidelines by the CBFC. "If one wants to change the guidelines, one
has to go through the proper channel, in this case the parliament.
You can't change the rules yourself," he is reported to have said.
Question is, did Anand ever say he would change the rule himself? He
was just trying to solicit expert opinion to make the review a
meaningful exercise. At the most he would have engineered a very
strong recommendation for an overhauling of the censorship
guidelines. And the government could still have ignored the advice.
But that was not to be.

While Anand has accused the government of 'taking away my freedom of
speech', Ravindra Kumar, the managing editor of The Statesman, has
provided us with a little more insight into this sordid affair. Kumar
was a member of the CBFC and very much a part of the process of
review. But he also resigned in the wake of the administrative
highhandedness. In his article titled 'Soft Porn, Hard Truth' (The
Statesman, July 24, 2002) Kumar writes that a two-volume summary of
recommendations was prepared by the CBFC secretariat and sent to
members of a core committee set up to consider the recommendations.
This document reportedly includes film censorship rules of 12
countries having varying degrees of strictness/laxity,
recommendations of a committee set up in Mumbai by the CBFC, the
Supreme Court judgment in the 'Bandit Queen' case, the high court
judgment on a Tamil film, suggestions from the South India Film
Chambers of Commerce, suggestions from the CBFC, Chennai, a draft
proposal worked out by a dozen eminent persons in Thiruvananthapuram,
drafts prepared by two legal experts, one of them a central
government advocate. The suggestion to designate cinema halls for
exhibition of films with sexually explicit visuals was one of the
many mooted by the Thiruvananthapuram group that included a former
director of the National Film Archives of India, two renowned
Malayalee novelists, academics and film critics. The government
decided that "such a proposal could be construed to militate against
the very objective of prior censorship of films" and so chose to
pre-empt the process of collective deliberation. (It is interesting
to note that the bureaucracy still sticks to the word censorship to
designate the authorisation, or otherwise, of films before
exhibition.)

Ravindra Kumar avers that the root cause of the government's problems
lies elsewhere. In his opinion, the government was unnerved by the
following proposals that came up for consideration before the CBFC:

(1) To make certification of films screened on satellite TV channels
compulsory; and
(2) To ensure that appointments to the Advisory Panels and the CBFC
Board were made on professional considerations and not because of
political links.

Kumar suggests, "if implemented they would have hurt interest groups
the government cannot afford to alienate". According to him, foreign
promoters will resent compulsory certification of films on satellite
TV channels owing to the possibility of technical problems, because
their telecast is often region-specific and not country-specific. And
he also does not foresee the BJP government delinking political
affiliation from the issue of CBFC appointment/nomination. While both
the above suspicions may be true, such insinuation only tends to
limit the problem within its narrowest possible boundary. It seems as
if the problem stems from an operational aberration.

From an academic point of view, what is at stake are the basic
issue(s) of film censorship/certification in this country.
Surprisingly, the resignation episode posits film censorship against
the representation of sex or handling of morally delicate
themes/matters in films leading to the allied concerns of
pornography, eroticism, obscenity and vulgarity. However, the scope
of film censorship is not limited to intervention over moral and
sexual issues in cinema. Film censorship the world over operates in
three major areas, viz, sex, violence and politics. And India is no
exception in this regard. Yet intervention over representation of
violence in India seems to have been carried out more by relaxation
than by observance. Otherwise how can one explain the blood-smeared
scenes of gory violence and graphic description of rape on silver
screen in the name of realism? And occasionally when there has been
intervention on this score, it has not created as much controversy as
that over sexual representation. As for intervention over political
matters, there is even less heat and dust. The public response
borders almost on apathy, barring of course those who have been
directly affected.

A few weeks prior to the Anand's resignation, an Examining Committee
attached to the CBFC, Mumbai, refused to grant certificate to the
docufeature 'War and Peace' made by Anand Patwardhan. The committee
handed Patwardhan a list of suggested deletions, which makes
interesting reading:

(1) Delete the scenes showing Pakistanis burning India's national
flags. (But nothing was said regarding Indians burning Pakistan's
national flag!)
(2) Delete the scene showing a Buddhist dalit leader objecting to
India's nuclear tests being conducted on Buddha's birthday and to its
codename as 'Buddha smiles'.
(3) Delete the dalit song, which says that the killer of Gandhi was a brahmin.
(4) Delete all references to exposition by Tehelka.com in the film.
(Of course, objections were not raised regarding the reference to the
Bofors scam in the film!)
(5) Delete part of an interview by an Indian scientist, especially
where he says, 'China is India's next enemy'.
(6) Delete all speeches by politicians, including those by the
central ministers and even the prime minister.

This instance of politically motivated film censorship has been
overshadowed by the drama surrounding Anand's resignation. Even more
interesting is the fact that despite his liberal pretension, Anand
has not shown any inclination to even question, let alone disturb,
the political implications of film censorship. While he could not
obviously have been a part of the Examining Committee that had
blocked the Patwardhan film, there is nothing to suggest that Anand
was at least sympathetic to the filmmaker and his film. In fact, he
apparently believed that certain scenes in the film were
objectionable and could invite trouble. "I do not want a law and
order situation over the film," he has been quoted as saying. For one
who has raised the bogey of 'freedom of expression' this is dubious
distinction. Evidently he had tried his utmost to steer clear of film
censorship's political agenda. But that did not ultimately save him.
He fell a victim to realpolitik. All moral talk and discourse on
modernism notwithstanding, his ouster smacks of an act arising from
political compulsions. And it also demarcates the limits of
sensitivity and tolerance associated with the film censorship regime
in India.

Trajectory of Film Censorship

India inherited the film censorship machinery imposed by the British
in 1920. But, the raison d'etre of the censorship machinery was
thoroughly overhauled to suit the new rulers. And it speaks volumes
of their manoeuvrability.

In 1950, the Right to Freedom of Speech and Expression (i e, Art
19(1)(a)) was enshrined in the new Constitution of India as one of
several Fundamental Rights available to the Indian citizens.
Exceptions were however granted under Art 19(2), which read:

Nothing in sub-clause (a) of clause (1) shall effect the operation of
any existing law insofar as it relates to, or prevents the state from
making any law relating to, libel, slander, defamation, contempt of
court or any matter which offends the decency or morality or which
undermines the security of, or tends to overthrow, the state.

Thus enactment of legislation with executive powers to regulate the
media was permissible, provided it itself restricted the exercise of
those powers to grounds specified in Art 19(2).

Against this background, there was a series of litigation, especially
involving press (both books and newspapers) and dramatic
performances, throughout the 1950s. The Indian judiciary, in the
immediate aftermath of independence, was inclined to the view that
any statute or provision not compatible with the express purposes or
directives of the Constitution would be void and struck down. It
stuck to its mandate not only where the offending statute expressly
authorised restrictions outside Art 19(2), but also where it was
silent but on a literal construction would be interpreted as doing so
(Amar Nath Bali vs State, Romesh Thapar vs Madras, Brij Bhusan
vs Delhi).

Perceiving this to be a threat against future machinations, the state
promptly circumvented the original Art 19(2) by enacting the
Constitution (First Amendment) Act 1951. It authorised the passage of
'censorship' statutes which conferred powers on the executives to
impose 'restrictions' on the press (and other media of expression)
"in the interests of security of state, friendly relations with
foreign states, public order, decency, morality or in relation to
contempt of court, defamation or incitement to an offence". In 1963,
the 14th Constitutional Amendment added a further ground for imposing
'reasonable restrictions' on the freedom of speech and expression in
the form of sovereignty and integrity of India. Thus the grounds of
exception were widened both in the wording and in the scope of the
enumerated fields of exception. And to counterbalance this extension
of the restrictive powers, the amendments added that the restrictions
should be 'reasonable' both 'substantively and procedurally'. The
basic requirement of reasonableness was the express purposes or
directives of the Constitution. The judiciary stuck to two other
major implications of the requirement of reasonableness:

- To strike down statutes which, otherwise within Art 19(2), did not
provide for appeal against executive orders. (Madan Lal Kapur vs
Rajasthan).
- To set aside executive orders that did not mention the grounds for
prohibition (The State vs Baboo Lal).
As against this, there were certain conservative rulings also:
- Incitement or encouragement to the commission of violent crimes
such as murder were held to be undermining the security of the state
and coming within the ambit of a law sanctioned by Art 19(2) (State
of Bihar vs Shailabala Devi).
- The courts generally refused to gauge the seriousness of any
disputed situation. The determination of the time when and the extent
to which restrictions should be imposed was left to the judgment and
discretion of the government (Virendra vs State of Punjab).

As a result of these litigations and thanks to its growing political
clout, the press managed to extricate itself from the clutches of
censorship. The stage, although not having similar political appeal,
also wrested freedom from censorship provisions, mainly because the
Dramatic Performances Act 1876 contained too many loopholes to be
'constitutionally' tenable: e g, the lack of clarity regarding
directives and insufficient provision for appeal against censorship
decisions. But cinema, being the worst off in terms of its prestige
and weight, remained vulnerable. The new-found rhetoric about
freedom, modernism, development, etc, flaunted by our national(ist)
leaders with gay abandon, were not applicable to the film censorship
machinery. Cinema remained equally susceptible to the politicians'
malice and administrative pressures in the new era.

First, a coup de main was provided in 1951 - the regional Censor
Boards of the pre-independence days were dismantled in favour of a
Central Board of Film Censors. Centralisation of film censorship was
a direct affront to the spirit of federalism enshrined in Indian
Constitution. But the captains of independent India were in no mood
to be lenient towards the medium - were they feeling uneasy with the
appearance of a series of Indian films delving into social criticism?
In any case, they were choreographing a second phase of manipulation
in the name of what B R Diwakar, the then minister of information and
broadcasting, termed as a "dignified effort to model an effective
medium of healthy entertainment, national culture and mass education".

This promise of a 'dignified effort' turned out to be the Indian
Cinematograph Act 1952, providing a comprehensive statute for
pre-censorship of films in post-colonial India. The constitutional
provision of Art 19(2), together with power granted under the 7th
Schedule, provided the base for Section 5B of the Indian
Cinematograph Act 1952:

S 5B Principles for guidance in certifying films

(i) A film shall not be certified for public exhibition if, in the
opinion of the authority competent to grant the certificate, the film
or any part of it is against the interest of 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 commission of any offence.
(ii) Subject to the provisions contained in sub-section (i), the
central government may issue such directives as it may think fit
setting out the principles which shall guide the authority competent
to grant certificates under this Act in sanctioning films for public
exhibition.

In pursuance of the power given to the central government by
sub-section (ii), directions have been issued for the guidance of the
Board of Film Censors. These directions are in two parts: (1) General
Principles - outlining certain norms to ensure that films did not
lower moral standards of the audience, portray standards of life so
as to deprave the morality of the audience and ridicule the
prevailing laws, and (2) Application of General Principles. The
latter included elaborate and often very cumbrous lists of film
themes and subjects which might be objectionable in a context in
which either they amount to indecency, immorality, illegality or
incitement to commit a breach of the law. These have been formulated
in order to achieve, as far as possible, a uniform standard for
determining whether a film is suitable or not for public exhibition.

It was a calculated risk. Under this act, if a film has been banned,
it imposes restrictions on the film itself, and not simply on the
exhibitor who under conditions of his licence is forbidden to show
the film. In the final analysis, it is a direct restriction on the
very expression of the film's idea, and as such must come within the
scope of Art 19(1)(a). Ordinary jurisprudence has it that, the powers
granted under the 7th Schedule of the Constitution must be
subordinate to Art 13 that establishes the absolute pre-eminence of
the Fundamental Rights as enunciated in Art 19. So, prima facie,
films should not be censored. But, the fact that the 1952 Act inter
alia provided for an elaborate system of appeals and contained clear
directives regarding imposition of restrictions apparently saved it
from judicial criticism/condemnation.

However, censorship decisions in independent India were drawing
serious protests from the Indian filmmakers. In order to pacify them,
the government of India constituted an Enquiry Committee on Film
Censorship. Examining the legal aspects of film censorship in India,
the committee did not mince words about these provisions. It clearly
opined that the Cinematograph Act 1952 only accentuated the
legal contradiction involving film censorship, by going beyond the
parameters of 'reasonable restrictions' outlined in Art 19(2).

Citing many instances of clearly indefensible clogs on the right to
freedom of expression outlined in the Censorship Rules, the Report of
the Enquiry Committee (1969) concluded:

It is clear that many of the rules which are at present in force have
no legal sanction behind them nor can they be said to be reasonable
or rational.

The crucial issue of the constitutional validity of film censorship
came up before the judiciary in 1970. It became necessary when the
filmmaker Khwaza Ahmed Abbas faced difficulty in connection with his
short film 'A Tale of Four Cities' (1969). The film reportedly
portrayed the contrasting lifestyles of the rich and the poor in four
big cities, viz, Bombay, Calcutta, Delhi and Madras. The Censor Board
refused to grant certificate to the film and Abbas went to the
Supreme Court raising four important points for the Bench to ponder:
(a) that pre-censorship cannot be tolerated under the freedom of
speech and expression, (b) that even if it were a legitimate
restraint on the freedom, it must be exercised on very definite
principles without any room for arbitrary action, (c) that there must
be reasonable time limit fixed for the decision of the censoring
authorities, and (d) that the appeal should lie with a court or an
independent tribunal and not the government. Points (c) and (d) were
readily conceded by the government counsel even before they were
taken up for consideration. He produced an undertaking from the
government for making film-censorship a time-bound and, more
important, a justiciable matter. With reference to (a) and (b), the
Supreme Court upheld the constitutional validity of censorship on
grounds of reasonableness and full justification. On an earlier
occasion (Madras vs Row), the judiciary had pointed out that, "the
test of reasonableness, wherever prescribed, should be applied to
each individual statute impugned, and no abstract standard or general
pattern of reasonableness can be laid down as applicable to all
cases".

And the Supreme Court now stated categorically:


(C)ensorship in India (and pre-censorship is not different in
quality) has full justification in the field of exhibition of cinema
films. We need not generalise about other forms of speech and
expression here for each such fundamental right has a different
content and importance.

The verdict ends with the reiteration that "censorship imposed on the
making and exhibition of films is in the interest of the society".
These words provided the coup de grace. The British administrators,
being over-cautious, kept the subject totally out of the judiciary's
purview. In the post-colonial era, the judiciary completely threw its
weight behind the executive. This development was instrumental in not
only perpetuating the stigma attached to the medium, but it also set
the tone for any prospective verdict in film censorship litigation in
India. More important, it proved that even the apparently solid
juridical principles like reasonableness and justification could be
put to use in validating a dichotomy.

Despite the fair amount of heat it generated and the reputation it
has earned since, the 'A Tale of Four Cities' litigation was at best
a half-hearted challenge to the system of film-censorship in
post-colonial India. One will never know why it also did not strike
at the untenable provisions of censorship rules to which the Report
of the Enquiry Committee on Film Censorship (1969) had alluded and
then concluded, "the General Principles and, more importantly the
Application of General Principles, must be done away with."

This conclusion was however premised with the following observation:

The most sensible and the most rational way of dealing with the
question is to declare that no film must transgress the reasonable
restriction clause of the Constitution and that the film must be
judged as a whole: with this exception that a certain sequence in it,
if it is not relevant to the story and is found to have been
introduced for the sole purpose of selling indecency and making a
film commercially successful, or if there is anything in the film
which clearly transgresses the provisions of penal law or falls
within the ambit of the various subjects enumerated in Article 19(2)
of the Constitution, may be judged by itself and deleted from
the film.

In other words, the Indian polity has chosen to overlook the
incompatibility of the film censorship regime with the implications
of Fundamental Rights enshrined in the Indian Constitution. After the
'A Tale of Four Cities' litigation, the government has undertaken
occasional re-examination and 'rationalisation' of the General
Principles and their Application. However, irrespective of the garbs
put on, these still extended far beyond the list of matters set out
in Art 19(2) and only reinforced the contradictions embedded in the
censorship system. The height of hypocrisy was reached when the
nomenclature, Central Board of Film Censorship, was replaced by a new
one, viz, Central Board of Film Certification in 1982. This was a
typical administrative eyewash and done without enunciating any major
alteration in the role and functions of the Board.

A further appendage to the censorship machinery was provided in the
form of a Film Certification Appellate Tribunal or FCAT in 1991. FCAT
was set up to act as an arbiter in disputes between filmmakers and
the CBFC. But in a series of articles published in The Statesman
(December 18, 19 and 20, 1998), A G Noorani has shown that even the
FCAT has not radically altered the censorship regime in India. Indeed
it all depends upon who is wielding the baton, and who is facing the
music.