Earlier this week, the Central Board of Film Certification (CBFC) announced that a six-member panel was being constituted to review the filmPadmavati, before it could be granted a censor certificate and publicly exhibited. Members of the panel include historians as well as representatives of the royal family of Mewar. The announcement of the panel has caused both bemusement and amusement. What, after all, do professional historians have to do with a piece of entertainment that is historical fiction at best, and the retelling of a myth at worst? And why has the royal family seemingly acquired a veto over the clearance of a film? The task of the Censor Board is to ensure that a film complies with the laws of the land and the guidelines of the Cinematograph Act, a task that does not require it to judge “historical accuracy”, or to subject a film to the scrutiny of self-appointed community gatekeepers. It is a legal and constitutional task, not a sentimental or popular one.
Requirements of any work
Unfortunately, however, the Censor Board’s actions represent an approach towards the freedom of expression that, despite its evident wrong-headedness, has been sanctioned by the Supreme Court on a number of recent occasions. This approach has two distinct aspects. First, that in order to qualify for constitutional protection, a work must have an objectively defined social value — that is, it must be good for something, whether it is spreading scientific or historical knowledge, inculcating patriotic values, or advocating good social habits. Second, if the work refers to or is about a certain segment of society, then that segment automatically acquires the power to decide whether or not it has been “offended” by it — a power that is exercised by the self-appointed gatekeepers of the community.
As an example of the second, take the recent travails of Jolly LLB 2, a well known satirical film about the Indian legal system. Before the film could be released, there was an uproar because it was alleged to have “insulted” lawyers and the legal system (although there is no law – and probably with good reason – that prohibits people from insulting lawyers). A petition was filed in the Bombay High Court. Ignoring what the CBFC itself had to say about this, the Bombay High Court appointed a three-member panel of lawyers, to “review” the film. Where the High Court found the power to do so, and why lawyers were appointed to review a film that satirises lawyers are questions that have no answer. In any event, the panel suggested four deletions . In the meantime, the producers had rushed to the Supreme Court, which, however, declined to interfere. Faced with the delayed release of their film, and the possibility of an eventual defeat in the Supreme Court, the producers swallowed their pride, accepted the four cuts, and received clearance for the film in the nick of time.
There is something uniquely grotesque about appointing lawyers to vet a film that makes fun of lawyers, just as it is uniquely grotesque to invite members of the royal family to vet a film that allegedly besmirches Rajput honour. The idea underlying the actions of both the court and the Censor Board is that every self-identified “community” – no matter how loosely- or ill-defined – has an automatic right of veto over any work of art, expressed through its self-proclaimed and most noisy gatekeepers. This, in turn, goes back to the pre-constitutional idea that India is not a nation of individual citizens, but an agglomeration of homogenous, clearly defined “communities”, and that it is these communities that come to be the measure of all values. The Constitution, however, clearly repudiated this view when it placed the individual – and individual rights – at its heart. Unfortunately, however, that lesson remains to be learnt, and especially by the Supreme Court which, in 2007, upheld a book ban on the ground that in a country as diverse as India, no community should feel offended or have its feelings hurt. The court didn’t see fit to say that in a country as diverse as India, everyone should learn spirit of tolerance; that apart, who can claim the right to project their personal hurt or offence onto their community as a whole is itself a difficult and complex question, which the court has so far failed to answer.
‘Useful art’
Let us now go back to the first aspect of Indian free speech jurisprudence. Ever since the Supreme Court upheld the constitutionality of obscenity law in 1964, it has given a clear indication that “useful art”, or art that can serve a “social purpose”, may be exempted from the penal consequences of obscenity, or other similar speech-restricting laws. In assessing the famous movie Bandit Queen , for example, the Court pointed out that certain disputed scenes – involving sexual assault – were actually meant to instil revulsion and disgust in the minds of the readers, and in that sense, the film was serving a socially useful purpose in depicting such scenes. And it is that motivation which, presumably, has driven the Censor Board to rope in historians to screen Padmavati. If Padmavati, according to the historians, is historically accurate, it will pass muster. But if it is “distorting history” (to echo the most famous complaint against it), then it serves no feasible social role, and the state is justified in refusing it screening permission.
There are, however, two serious mistakes in this approach which undermine the entire system of freedom of speech and expression itself. First, even if we concede that art ought to have a social purpose (which we shouldn’t), the task of deciding whether a particular work of art is “socially useful” or not will be left to judges who, with the best intentions, will only end up reproducing the dominant conceptions of what is useful. For example in Ranjit Udeshi (the obscenity case), Justice M. Hidayatullah embarked on a two-paragraph critique that questioned the merits of D.H. Lawrence’s writing, and probably everybody will agree that those two paragraphs are a standing embarrassment in the annals of our constitutional history. However, this does mean that truly heretical or rebellious work – precisely the kind of subversive work that a free speech guarantee is supposed to protect – will always be persecuted. And second, there is simply no way of knowing what uses a work might be put to in the future. The Churchmen who sentenced Galileo to house imprisonment were no doubt sure that the Sun revolved around the Earth, and that Galileo’s research, apart from being heretical, was simply useless. That predication, however, did not age well. Similarly, to decide – as this screening committee will do – whether Padmavati has “distorted” history and therefore cannot be redeemed by the social purpose of art would be to declare authority over all possible uses that art may have now or in the future.
A larger battle
The Supreme Court’s own ambivalence towards the freedom of speech was best exemplified earlier this year, when, in upholding a book ban imposed in the State of Karnataka, the court refused to give any reasons for its opinion. The CBFC is, of course, an independent body with an independent mandate. However, we need to remember that it is the Supreme Court which, in the last analysis, sets the norms, principles and values that trickle down the judicial ladder. Consequently, as long as the freedom of speech continues to be treated as a minor inconvenience that needs to be regulated and controlled in the “public interest”, and as long as the court continues to affirm “community” claims as having priority over individual freedoms, we cannot really expect the CBFC to protect free speech in a meaningful way. The battle for free speech must be waged both at the bottom and at the top.
Gautam Bhatia is a Delhi-based lawyer
