With an annual production of about 1,600 to 2,000 films , both in Hindi and in regional languages, India is the largest producer of films in the world. According to Deloitte’s ‘Indywood — The Indian Film Industry Report’, till December 2015, the gross box office realisation of the film industry was $2.1 billion. Undoubtedly, the film industry is not only a robust industry, it also plays a pivotal role in our nation. While entertaining, it also provides education, develops a national character, and mirrors the society at large. However, in the largest democracy with the longest Constitution, films often become the target of public ire and of censorship. The recent controversies over Sanjay Leela Bhansali’s Padmavati and the Prakash Jha-produced Lipstick Under My Burkha have again ignited the debate between the liberals and the conservatives, between the custodians of Indian cultureand the urban intelligentsia. But in the cacophony of arguments and counterarguments, no one has referred to the blueprint of the young nation: the Constitution of India. Since it is the Constitution which guarantees the fundamental right of freedom of speech and expression, and defines the contours of the said freedom, perhaps we should consider the interrelationship between the Constitution and cinema.
Some of the burning issues that confront us are: How does the Constitution of India define freedom of speech and expression? What are the limits on the said freedom? Why are films banned? Are these bans constitutionally valid? What views have been expressed by the final interpreter of the Constitution, the Supreme Court of India, about these bans on the films? Are we on the right constitutional path when we ban films? What consequences would these bans have on our freedom of speech and expression and on the rule of law?
The preamble of our Constitution, which is said to contain the dreams of “We the People”, speaks of “freedom of thought and expression”. Article 19 (1) (a) of the Constitution of India guarantees the fundamental right of freedom of speech and expression. However, the said freedom is not absolute one; it is not an unbridled horse. In fact, Art. 19 (2) of the Constitution permits the State to impose reasonable restrictions on seven grounds, namely security of state, sovereignty and integrity of India, friendly relationship with foreign countries, public order, decency and morality, contempt of court, and defamation. Thus, the ban on a film is legally justifiable only on these seven grounds, and none else.
However, films have been banned in India since 1959 when Mrinal Sen’s Bengali film Neel Akasher Neechey was banned for two months.
Generally, films are banned for six reasons. First, movies which depict the country in a bad light. Deepa Mehta’s Water (2005) dealt with the plight of the widows in Varanasi. It tackled the issues of ostracism and misogyny. Just the filming of the movie aroused the ire of the people to the extent that the sets of the movie were burned. But the movie went on to win international acclaim. Similarly, BBC’s documentary India’s Daughter (2015) , which contains interviews with the alleged rapists of the 2012 Delhi gang-rape victim, is banned in India because it records certain views of the rapists which show the country in a poor light.
Second, are the movies which portray the life of our leaders, but in an unfavourable manner. The movie Kissa Kursi Ka (1977), which was a spoof on Prime Minister Indira Gandhi and her son, Sanjay Gandhi, was banned during the Emergency. Subsequently, all the prints, including the master print, were allegedly burnt at the Maruti Udyog factory. Similarly, the movie Aandhi (1975), which allegedly depicted the life of Indira Gandhi, was banned during the Emergency. The ban was lifted only after the Emergency was over.
Third, movies which depict communal violence are prone to be banned. The 2002 Gujarat riots are still too raw in our memory to permit the screening of movies based on the riots. Parzania (2005) won National Awards for Best Direction and Best Actress, but faced an unofficial ban in Gujarat. The movie dealt with Azhar, a Muslim boy, lost during the Gujarat riots. Firaaq (2008), also based on some true stories of the riots, was also not released in Gujarat. In 2004, Rakesh Sharma’s documentary Final Solution was banned as the Censor Board felt the documentary was “highly provocative and may trigger off unrest and communal violence”. The ban was finally lifted in October 2004 after a sustained campaign. Similarly, the screening of Black Friday (2004) was stayed by the Bombay High Court till the 1993 Bombay blast trial was over. On the other hand, Amu (2005), which dealt with the anti-Sikh riots of 1984 in Delhi, still cannot be screened in India. Movies, such as these are deemed to arouse the passion of the people that can lead to problems of public order.
Fourth, are those movies which hurt the religious sentiments of the people. The movie The Da Vinci Code (2006) was banned in five States in India as it hurt the sentiments of the Christian community. The movie, and the book by the same title, question the Christian belief that Jesus never committed the original sin. According to the book and the movie, Jesus had married Mary Magdalene and had a daughter from her. Although the book is freely available in most of India except in Nagaland, the film ran into rough waters. Likewise, Sins (2005) dealt with the theme of a Keralite Roman Catholic priest who falls in love. He has to struggle with his lust and sexuality. But the Roman Catholic Church claimed that the movie depicted the Church and the priests in a questionable manner. It is banned in Kerala.
Fifth, a few movies are censored on the ground of obscenity. Mira Nair’s Kama Sutra — A Tale of Love (1996) dealt with a story of four lovers in 16th century India. Though Kama Sutra , the book, is easily available in India, the Censor Board still found the movie “too explicit”, “unethical” and “immoral”. Likewise, Gandu (2010), a Bengali film which was a rap musical, created enough buzz for its scenes of oral sex and nudity so as to be qualified as “defying Indian sensibility”. The Censor Board banned its screening. Even some foreign films have been banned in India. Although the book Fifty Shades of Gray is a popular book in India, the movie, based on it, was censored for its sexual theme and nude scenes.
Of course, the most famous movie to invite criticism on the ground of obscenity was Shekhar Kapur’s The Bandit Queen (1994). Based on the life of Phoolan Devi, the dreaded dacoit of U. P., the movie included a front nude scene, rape scenes and barrage of explicit words. The Censor Board granted an ‘A’ or adult category certificate to the movie and permitted its screening. But the grant of ‘A’ grade certificate and the possibility of its screening was challenged before the Delhi High Court. The controversy finally reached the Hon’ble Supreme Court in the case of Bobby Art International and Oths. v Om Pal Singh Hoon and Oths . [(1996) 4 SCC 1].
Finally, there are those films which deal with tabooed subjects, such as lesbianism, and transsexuality. Fire (1996) came under fire because it suggested a lesbian relationship between two daughter-in-laws of a family. The movie led to attacks on the movie halls exhibiting the film in Mumbai. Similarly, Sridhar Rangayan’s 2002 film Gulabi Aaina (The Pink Mirror) dealt with the theme of two transsexuals and a gay teenager trying to seduce a straight man. Although the movie won international acclaim for its “sensitive portrayal of a marginalised community”, it is banned in India. Aligarh (2016), which deals with the theme of homosexuality, raised eyebrows in the city of Aligarh itself, but has not invited any ban so far.
A large number of such films, as mentioned, have attracted the judicial imagination to the issues of censoring, and banning of films. In the case of K.A. Abbas v. Union of India and Ano . [(1970) 2 SCC 780], the Hon’ble Supreme Court addressed the issue whether or not pre-censorship can be tolerated under the freedom of speech and expression. The apex court did not find pre-censorship as offending freedom of speech and expression. For according to the apex court, “Pre-censorship is but an aspect of censorship and bears the same relationship in quality to the material as censorship after the motion picture has had a run. The only difference is one of the stage at which the State interposes its regulations between the individual and his freedom. Beyond this there is no vital difference.” But simultaneously, the court said, “It is also settled that freedom of speech and expression admits of extremely narrow restraints in case of clear and present danger…the censorship should be based on precise statement of what may not be subject-matter of film making and should allow full liberty to the growth of art and literature.”
In Ramesh v Union of India and Oths. [(1988) 1 SCC 668], a ban was sought on the telecast of the serial Tamas , which dealt with the partition of the country. It was argued that the serial would re-ignite the painful memories of Partition, and would lead to public order problems as it is likely to create animosity between Hindus and Muslims. In the opinion of the Supreme Court, “The effect of exhibition of a film or of reading a book has to be judged from the standards of reasonable, strong-minded, firm and courageous men or as has been said in English Law ‘the man on the top of Clapham omnibus’, and not those of weak and vacillating mind, nor of those who scent danger in every hostile point of view.” It further held, “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. A balance has to be struck.”
In the case of Bobby Art International (supra) in 1996, the respondent had challenged the grant of ‘A’ certificate issued to the movie The Bandit Queen , and sought to stop its screening in India on the ground that the scene of frontal nudity, of rape, and vulgar language demeans the Gujjar community. The Delhi High Court had set aside the ‘A’ certificate issued to the movie and had prohibited its screening in India. The appellant, Bobby Art International, had questioned the judgment of the Delhi High Court. Allowing the appeal, the Hon’ble Supreme Court observed, “A film that illustrates the consequences of a social evil necessarily must show that social evil… No film that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil. At the same time, the depiction must be just sufficient for the purpose of the film.” The apex court set aside the judgment of the Delhi High Court and restored the ‘A’ certificate and permitted the film to be exhibited in India.
In the case of Directorate General of Doordarshan and Oths. V. Anand Patwardhan and Ano. [(2006) 8 SCC 433], Anand Patwardhan had challenged Doordarshan’s refusal to telecast his documentary film Father, Son and Holy War . The first part of the documentary looked at the problems faced by Hindu and Muslim women within their own religions. Part II examined the construction of the values of ‘manhood’. As the film proceeds, it reveals the inner psyche of men and shows how men are conditioned into believing that violence is desirable. The film looks at the rhetoric of street sellers of aphrodisiacs who create feeling of male insecurity and impotence in their audience and then offer their cheap medicine as a cure. The movie looks at the rhetoric of politicians (both Hindu and Muslim) who appeal largely to their male audiences. They too are taunting them for their impotence, but the medicine they offer for the creation of ‘real man’ is hatred against the other community. Allowing the petition, the Hon’ble Supreme Court observed, “In our opinion, the respondent has a right to convey his perception on the oppression of women, flawed understanding of manhood and evils of communal violence through the documentary film produced by him. As already noticed, this film has won awards for best investigating film and best film on social issues at the national level. The documentary film has won several awards at the international level as well. The freedom of expression, which is legitimate and constitutionally protected, cannot be held to ransom on a mere fall of a hat. The film in its entirety has a serious message to convey and is relevant in the present context. Doordarshan being a State controlled agency funded by public funds could not have denied access to screen the respondent’s documentary except on specified valid grounds.”
Finally, in the case of S. Rangarajan v. P. Jagjivan Ram and Ors. [(1989) 2 SCC 574] the Hon’ble Supreme Court proclaimed, “If the film is unobjectionable and cannot constitutionally be restricted under Article 19 (2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender (sic) to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem.” Hence, the state cannot be permitted to abdicate its constitutional responsibility to protect and promote the creative arts.
The legal issue before us today is whether censoring films and protesting against the freedom of the artists are legally justified under Article 19 (2) of the Constitution of India or not. The ban on the ground of public order or obscenity, at times, might be justified. But the prohibition on the grounds that the film “hurts the pride of the people of the nation”, or “hurts the religious sentiments of a community”, or that “it defies Indian sensibility”, or “it is against the Indian ethos or culture”, or “it is woman-oriented” are clearly untenable. For such grounds are not covered by Art. 19 (2) of the Constitution of India.
Depriving the majority
The ban on films which criticise the nation clearly reveals our immaturity in accepting criticism of ourselves. Perhaps time has come to examine ourselves in the light of what non-Indians have to say about us as people, and as a nation. Even if our national leaders are being criticised, or a part of their personality or character is being questioned, maybe we should be mature enough to take the criticism in our own stride. Similarly, bans on films which raise modern issues of the condition of women in India such as Water , or on issues of sexual identity or fluidity such as Gulabi Aaina or Fire should not be banned especially when the question of the rights of the LGBT community is being debated as a constitutional issue, and as part of human rights. To shut one’s eyes on films on such themes is to act like a proverbial ostrich burying his head in the sand when he senses danger. Such extra-constitutional restrictions go beyond the scope of Article 19 (2) of the Constitution of India.
Most importantly, such prohibitions adversely affect democracy and the rule of law. First, coloured exercise of power permits the state to control the free flow of information, of thoughts, of creativity, and of speech and expression. The state is permitted to act as a benevolent patriarch or as Big Brother of Orwell’s 1984 . But such thinking demeans the intellect and the maturity of the citizen. The state is permitted to think that it has the power to decide what is right or what is wrong for the people, instead of letting people have the right to decide the same.
Second, unreasonable restrictions at the behest of fringe groups deprive the majority of the people of their right to see, and to enjoy good literature and good art. While we worry about the sentiments of the few, we ignore the rights of the many. By censoring films at the behest of a few, we strengthen the fringe groups, we arm them with the power to take the law in their own hands, and to undermine the rule of law. Thus, it becomes the tyranny of the minority over the rights of the majority.
Third, in the age of information technology, such bans are farcical. For the proscribed films are readily available on the Internet. They can be downloaded and enjoyed. Such bans thus motivate people to break the law and to dilute the rule of law.
The beauty of openness
Amartya Sen in his book, The Argumentative Indian , has argued that one of the reasons for democracy to survive in India is the ability of Indians to accept diverse thoughts and philosophies, cultures and lifestyles within their fold. Sarvepalli Radhakrishnan, the President of India, in his book, The Hindu View of Life , in fact asserts that the Indian civilisation is based on assimilation rather than on extermination. The former is the hallmark of Indian civilisation, the latter, of Western civilisation. Indeed, the Constitution of India is wedded to the concept of pluralism and inclusiveness. But extra-constitutional bans restrict the free flow of thoughts, of imagination, of creativity. Such bans are thus against the constitutional philosophy, against the rule of law, against democracy, and against our national interest.
Benjamin Franklin, the great American statesman and one of the founding fathers of America, once said, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” The importance of protecting liberty and freedom is explained by the famous lawyer Clarence Darrow: “You can protect your liberties in this world only by protecting the other man’s freedom; you can be free only if I am free”. Mahatma Gandhi said, “I do not want my house to be walled in all the sides and my windows to be stuffed. I want the cultures of all lands to be blown about my house as freely as possible. But I refuse to be blown off my feet by any.” The winds of imagination and thoughts, of colours and creativity should be permitted to blow throughout the nation lest the country be imprisoned in an iron curtain. We cannot construct Siberian prisons in the tropical landscape of our Constitution.
Justice R.S. Chauhan is a sitting judge of the Karnataka High Court