Indian courts have consistently upheld and championed the fundamental right to free speech and expression enshrined in the Constitution. This includes the right to put forward different and contrary views, right or wrong. A recent instance saw the Supreme Court of India striking down Uttar Pradesh's ban on the film Aarakshan. This article by A.P. Shah, retired Chief Justice of the Madras and Delhi High Courts, sets out key issues relating to freedom of expression and censorship by the state. The article, written before the ban on the film, Dam 999, is highly relevant in the current context.
The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
— John Stuart Mill, On Liberty, 1859
A few months ago, Aarakshan joined a long list of films whose screenings were sought to be curtailed by the state instrumentalities, because the social aspects depicted by them were seemingly understood as being bold or uncomfortable to the interests of certain sections of society. This once again raises the question whether India has truly come of age, or whether the freedom to express oneself is subservient to the subjective satisfaction of the state.
Just before the release of Aarakshan, which attempts to critically analyse the system of reservation in admissions in the Indian education system, three States, namely, Punjab, Andhra Pradesh and Uttar Pradesh, decided to suspend the screening of the film in their respective States. The Director of the film approached the Supreme Court against this decision of the States, contending that it amounted to pre-censorship when no such power was vested in them. During the pendency of the petition, Punjab and Andhra Pradesh withdrew the order of suspension in their States. However, Uttar Pradesh remained adamant and decided to defend its order.
Striking down the decision of the Uttar Pradesh Government, the Supreme Court held that even delicate issues like reservation require public discussion and debate in a vibrant democracy such as ours. Such a discussion on social issues spreads awareness, which is required for the effective working of the democracy. In fact, such an informed and positive decision only helps society to grow.
Free speech and expression under the Constitution
The right to freedom of speech and expression is enshrined as a fundamental right under Article 19(1)(a) of the Constitution. Freedom of expression means the right to express one's opinion by words of mouth, writing, printing, picture or in any other manner. Such is the importance of this right in a democracy that without this right, the attempt to achieve a democratic and principles would be a hollow formality.
Although this right has wide amplitude, our Constitution mandates that when seeking to uphold the larger interest of society, the rights of an individual must give way to such collective rights. It is for this purpose that the right to freedom of speech and expression under Article 19(1)(a) is qualified by “reasonable restrictions” under Article 19(2) of the Constitution. However, to preserve the essence of democracy as also to prevent the state from exercising its will arbitrarily, it is required that such restrictions must only be imposed with a great amount of care and caution.
The Supreme Court, in the case of Life Insurance Corporation of India v. Prof. Manubhai D. Shah (1992) 3 SCC 637, stated that the restriction had to be interpreted strictly and narrowly. Such restrictions are bound to be viewed as anathema, inasmuch as they are in the nature of curbs or limitations on the exercise of the right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities who seek to impose them.
In contrast to India, the American system places a much greater value on this right as the First Amendment to the U.S. Constitution does not permit any prior restraint, and the guarantee of free speech is absolute and unqualified.
Role of the censor
It was stated in K.A. Abbas v. Union of India and Ors., AIR 1971 SC 48that although it must be remembered that the cinematograph is a powerful medium, the mere portrayal of a social vice in a movie cannot attract the censor's scissors: how the theme is handled by the producer should be the criterion. While analysing the role of the censor, the Supreme Court held: “The task of censor is extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination…..Our standards must be so framed that we are not reduced to a level where the protection of the least capable and 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 this leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.”
Lawrence Liang stated in his article headlined ‘Sense and Censorbility': “The practical mission of censorship is closely tied to the idea of creating an ‘ideal citizen-viewer. The task of censorship is to teach the viewer to become a citizen through particular spectatorical practices, and the imagined gaze of the citizen-viewer determines the specific content of censorship laws.”
Censorship on the decline
In general, prior restraint regarding film screenings has been on the decline over the decades in the democratic world. Since the 1960s in the United States, the courts have prescribed rigid criteria for prior restraint in cinema. Gradually, film censorship became impractical and no prior administrative restraint of films exists today in U.S. However, supervision of films still exists in the shape of film classifications introduced by the Motion Picture Association of America. Similarly in England, there is no general legislation conferring powers to censor movies, but the common practice is that censorship is based on the classification of movies according to their suitability to different audiences.
However, in contrast, certain countries such as India and several other Asian countries still retain censorship powers on films. The same can at best be understood as something in the nature of enforced morality being subjected upon the citizens by their state.
Censorship in Israel
It is observed that censorship has been on the decline even in a country like Israel which is considered to be largely conservative. The Israel Supreme Court, through landmark decisions such as Israel Film Studios v. Gerry (1962) Isr SC 15 2407 and Bakri v. Film Censorship Board (2003) Isr SC 58 (1) 249, has been instrumental in negating the overreach of the censors even in cases where it was submitted that there would be “an outburst of negative feelings against the state,” and “severe offence to the feelings of a section of the society”. In Laor v. Film and Plays Censorship Board (1987) Isr SC 41 (1) 421, the Censor Board refused to permit the staging of the play Ephraim Returns to the Army, on the ground that it presented a distorted and false picture of the military administration and the occupied territories under Israeli military rule. The court overruled this objection and observed: “The parallel between the German soldier arresting a child and the Israeli soldier arresting an Arab youngster breaks my heart. Nonetheless we live in a democratic state, in which heartbreak is the very heart of democracy.”
The case of Ore Oru Gramathile
The case of S. Rangarajan v. P. Jagjivan Ram and Ors. (1989) 2 SCC 574, concerned a film Ore Oru Gramathile, which much like Aarakshan, was critical of the policy of reservation of the government. Allowing the screening of the movie, the Supreme Court held that in a democracy, it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means. Movie is the legitimate and the most important medium in which issues of general concern can be treated.
The court also held that on the issue of balancing the two interests, the commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest.
Censor board has failed
Despite the power of regulating the content of films being vested in the Censor, the Central Board of Film Certification (CBFC) has often failed in the task entrusted to it by either stifling creativity or hijacking morality and trying to substitute it with the morality of certain vested interests. It is at times like these that the courts have to step in as the saviour of freedom, safeguarding different forms of expression against the censorial instincts of the state.
The Anand Patwardhan case
In the case of Anand Patwardhan v. Union of India, AIR 1997 Bom 25, Doordarshan refused to telecast the petitioner's film, In Memory of Friends, which was about the violence in Punjab. The Bombay High Court, while dealing with the objection to screening of a movie, held: “The film maker may project his own message which the other may not approve of. But he has a right to ‘think out' and put the counter appeals to reason. The State cannot prevent open discussion and open expression, however, hateful to the policies.”
The court further held that the petitioner's film must be judged in its entirety. The film has a theme and it has a message to convey.
The same film maker, in Anand Patwardhan v. Union of India 1997 (3) Bom CR 438, approached the Bombay High Court seeking a direction to Doordarshan to telecast his documentary Raam-Ke-Naam. Objection was taken to certain scenes in the film where akar sevak justified the assassination of Mahatma Gandhi by Nathuram Godse. Rejecting the point of view that the film provoked commission of offence, it was held that “viewed from the healthy and common sense of point of view, it is more likely that it will prevent incitement to such offences in future by extremists and fundamentalists.”
Anand Patwardhan also challenged an order of the Film Certification Appellate Tribunal (FCAT), in Anand Patwardhan v. CBFC 2003 (5) Bom CR 58, which had directed changes to his documentary War and Peace (Jang aur Aman)that showed a Dalit leader questioning in his speech why the bomb had exploded on Buddha Jayanti day and not on Lord Rama's birthday. The Bombay High Court held that it is only in a democratic form of government that the citizens have a right to express themselves fully and fearlessly as to what their point of view is towards the various events that are taking place around them.
Censorship against depiction of the aftermath of Godhra riots
The case of F.A. Picture International v. CBFC AIR 2005 Bom 145 was regarding the film Chand Bujh Gaya, which depicted the ordeal of a young couple — a Hindu boy and a Muslim girl — whose lives were torn apart in the State of Gujarat. The CBFC held that “the Gujarat violence is a live issue and a scar on national sensitivity. Exhibition of the film will certainly aggravate the situation.” The Bombay High Court held that no democracy can countenance a lid of suppression on events in society and stability in society can only be promoted by introspection into social reality, however grim it may be.
In Ramesh Pimple v. CBFC 2004 (5) Bom CR 214, the documentary film Aakrosh focused on the communal riots in Gujarat. The CBFC sought to curtail the screening of the movie on the ground that such exhibition would incite suppressed communal feelings. However, overruling this objection, the court gave the opinion that it is when the hour of conflict is over that it may be necessary to understand and analyse the reason for strife. We should not forget that the present state of things is the consequence of the past; and it is natural to inquire as to the sources of the good we enjoy or for the evils we suffer.
The Da Vinci Code controversy
The case Sony Pictures Releasing of India Ltd. v. State of Tamil Nadu, (2006) 3 M.L.J. 289, dealt with objection to the screening of Da Vinci Code, as the movie was considered to be offensive to the beliefs of Christians. Allowing the screening of the film, the Madras High Court held that the issue is whether there can be a work of art or literature or a film which propounds such interpretations, and whether the public have the right to decide whether to accept or reject such alternative interpretation. The issue is whether the state is bound to protect the person whose fundamental right is sought to be violated by people who threaten to breach peace, or whether the state will mutely watch such threats.
“When men differ in opinion, both sides ought equally to have the advantage of being heard by the public,” wrote Benjamin Franklin. If one is allowed to say that a certain policy of the government is good, another is with equal freedom entitled to say that it is bad. If one is allowed to support a governmental scheme, the other could as well say that he would not support it. The different views are allowed to be expressed by proponents and opponents not because they are correct or valid, but because there is freedom in this country to express differing views on any issue. The ultimate good in a society is better reached by free trade in ideas — the best test of truth is the power of the thought to get itself accepted in the competition of the market. Courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution.
(Justice A.P. Shah is a retired Chief Justice of the Madras and Delhi High Courts. He wrote this article in the context of the ban on Aarakshan.)