A case for cutting out the censor

The Cinematograph Act, its Guidelines, and the censor board, by making the government the arbiter of what films are fit or unfit for citizens to see, are fundamentally at odds with our constitutional vision

June 13, 2016 12:40 am | Updated May 11, 2017 04:10 pm IST

Illustration: Keshav

Illustration: Keshav

Pahlaj Nihalani, the censor board chairperson, is in the news again — this time for his ham-fisted, tone-deaf treatment of Anurag Kashyap’s Udta Punjab , a film about the drug problem in Punjab. Mr. Nihalani’s bizarre claim that the film “defames” Punjab, and his >alleged insistence that all references to the State be excised from the film , and a disclaimer added acknowledging the government’s efforts at controlling the drug menace, all sound more in tune with a fervid political campaign than with the level-headed deliberations of a film certification board.

In the aftermath of the controversy, it has become tempting to cast the censor board chairperson in the role of the comedy villain, the sinister yet dull-witted censor taking up his blunt cudgels against art and expression. Such a description is not entirely inaccurate. However, framing the issue in terms of the actions of one individual — no matter how arbitrary or erratic — risks confusing the symptom for the disease, and blinding us to the real problem: today, a Nihalani is made possible because of the existing legal framework, and nearly half-a-century of judicial discourse around it.

Regime of pre-censorship The censor board (actually, the Central Board of Film Certification) is a statutory body under the Cinematograph Act 1952. The Cinematograph Act creates a regime of pre-censorship — or, in technical terms, a regime of “prior restraint”. Before a film can be released for public viewing, it must be cleared by the censor board. The board is tasked with ensuring that the content of the film does not fall into any of the categories of “reasonable restrictions upon free speech” that are set out under Article 19(2) of the Constitution. Article 19(2), however, consists of a set of abstract phrases such as “public order”, “decency or morality”, “defamation”, and so on. To aid the censor board in its task, the government is authorised to frame concrete guidelines. These guidelines have been changed from time to time, and at present, stipulate (among other things) that “dual meaning words as obviously cater to baser instincts are not allowed”, “visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitudes are not presented”, and “human sensibilities are not offended by vulgarity, obscenity or depravity.”

One glance at these “Guidelines” should be enough to establish that they not only allow, but positively invite, arbitrary censorial action. Instead of clarifying and cabining the scope of discretion under Article 19(2), they expand it, creating a broad and vague field within which the Censor Board can operate. And Mr. Nihalani’s treatment of Udta Punjab , in fact, is not an isolated act of a rogue official running wild, but simply one particularly egregious application of a repressive legal regime.

Legal opinion However, it didn’t have to be this way. Forty-six years ago, the film-maker K.A. Abbas challenged the constitutionality of the pre-censorship regime established by the Cinematograph Act, as well as the Guidelines framed under it. Abbas’s argument was that pre-censorship was too draconian to be a “reasonable restriction” upon free speech under Article 19(2). This was especially so because other media of communication, such as print, were not subjected to pre-censorship. In any event, he argued, at the very least, the Guidelines were entirely vague and arbitrary.

However, it was Abbas’s misfortune that his case came to be heard before a bench led by a judge who had not only shown himself to be hostile to the freedom of speech and expression, but also fancied himself as an art and culture critic — a lethal combination. Five years before, Chief Justice M. Hidayatullah had upheld a ban on D.H. Lawrence’s Lady Chatterley’s Lover by dismissing its artistic qualities as worthless, and had adopted a 19th century legal test for obscenity focussed on preventing moral “depravity” and “corruption”. After that, he had held that the politician E.M.S. Namboodiripad, in suggesting that the judiciary was an instrument of class oppression according to Marx, had failed to understand Marx, and had committed contempt of court. Now, in writing the court’s opinion on film censorship, he not only upheld the Act and the Guidelines, but also embarked upon a psychological analysis of how the medium of cinema, with its “versatility, realism (often surrealism), and its coordination of the visual and aural senses” was able to “stir” people much more deeply than written words could, and, therefore, had to be subjected to a more stringent regulatory regime. Strangely, Chief Justice Hidayatullah’s reasoning in K.A. Abbas was strongly reminiscent of the “argument from colonial difference”, used by the British to deny Indians civic freedoms and the right to self-governance for the longest time. The British had regularly invoked the emotional, mental and political immaturity of Indians to justify both their rule, and the necessity of imposing a repressive censorship regime upon the press and the arts. Independence had come, and a new Constitution, but the same Indians who were now considered politically mature enough to govern themselves and choose their own leaders, could still not be trusted by the Supreme Court to watch films without the prior approval of the government.

Moralising, patronising discourseK.A. Abbas was an unfortunate judgment because it not only upheld the Cinematograph Act and its vague guidelines but also created a judicial discourse around films and the freedom of speech that is defined by its moralising, patronising, and paternalistic character. A little over a decade-and-a-half later, in S. Rangarajan vs P. Jagjivan Ram , the Supreme Court observed that pre-censorship of films was necessary because cinema audiences were not as “discerning” as newspaper readers. Nearly a decade later again, in the Bandit Queen case, the Supreme Court permitted some scenes of violence and frontal nudity on the ground that they served a larger social purpose of creating, in the minds of the viewers, a revulsion towards such actions — and that the scenes were no longer and no more detailed than was strictly necessary to serve this purpose. And vestiges of this approach continue today: it was >reported that the Bombay High Court remarked , during the hearings on Udta Punjab , that multiplex audiences are now “mature” enough.

It is not clear in what context and for what purpose the High Court made this observation. What should be clear, however, is that it is high time that this discourse of “maturity” and “immaturity” (whether of multiplex audiences or otherwise) was jettisoned from our constitutional discourse. Our Constitution, the culmination of a decades long struggle for political independence and civic freedom, is premised upon the belief — and the faith — that citizens are autonomous individuals, who make their own choices and take responsibility for them — whether it is in the political arena while exercising their right to elect their representatives, or in the cultural arena, in deciding which gods to worship, whom to associate with, and what to see, speak, or here. The Cinematograph Act, its Guidelines, and the censor board, by making the government the arbiter of what films are fit or unfit for citizens to see, on the assumption that the “wrong” kinds of films might lead them to form the wrong kinds of views or take the wrong kinds of actions, are fundamentally at odds with our constitutional vision.

The Court’s sanctification of this legal regime has been an error. It is, however, an error that need not be further compounded. It is time not only for Mr. Nihalani to go but also for the regime of film censorship to be swept away along with him, unlamented and unremembered.

Gautam Bhatia is a Delhi-based lawyer .

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