The hero next door of the 1980s, Amol Palekar, who starred in middle of the road films like Chitchor & Gharaonda has filed a case in the Supreme Court against pre-censorship of films, terming it as violative of Right to Freedom of Speech and Expression of both film makers and the public. He has challenged the provisions of the Cinematograph Act 1952 and Cinematograph Certification Rule, 1983 which give right to the Censor Board to delete, cut and alter films. The court has asked the government to file its reply to it. Censorship is serious business and Pahlaj Nihalani, the CBFC Chief, has been courting controversy with his dictats on cuss words, number of kisses in a Bond thriller; earning he sobriquet of “Sanskari”. In this backdrop it would be interesting to go through the response of the Supreme Court in the past and it’s shifting stands, from a prude to being prurient on censorship in Indian Cinema and Television.
The first landmark case in this regard was K. A. Abbas vs Union of India (1970), when the producer was unable to get “U” certificate for his film “A Tale of Four Cities”. The court observed that censorship of films, including pre-censorship, are constitutionally valid as it is “a reasonable restriction” within the ambit of Article 19(2). The court also laid down some guidelines for the censors on sex and obscenity observing that they are not always synonymous.
Subsequently in Ranjit D. Udeshi vs State of Maharashtra (1965), the Supreme Court was called upon to lay down the test to determine obscenity. The appellant, a Bombay book seller, was prosecuted under Section 292 of IPC for selling a well-known book “Lady Chatterley’s Lover” written by D.H. Lawrence. The court rejected all the pleas and upheld conviction of the appellant. Justice Mohammad Hidayatullah, a Supreme Court judge with liberal leaning had famously observed “I would not give this book even to my wife to read”. In contrast, in England the jury acquitted the publishers, observing that the publication did not fall foul of the obscenity test. This was heralded as a turning point in the fight for literary freedom in UK.
Two decades later, the Supreme Court took a complete U turn in Ajay Goswami vs Union of India (2007) case when it observed that the obscenity test has become out moded in the internet age which has broken down traditional barriers and made publication from across the world available with the click of the mouse. This is precisely what Sri Amol Palekar is trying to assert. When content on television and internet are free of censorship, any attempt to alter, cut or delete before a cinema is shown, would be discriminatory and an attack of Right to Equality under Article 14 of the Constitution.
This takes to another iconic case where the D.G. Doordarshan had refused to telecast a documentary film made by Anand Patwardhan titled “Father, Son and the Holy War”. The film dealt with realities like patriarchy, violence, fundamentalism and suppression of women. The Supreme Court in the Anand Patwardhan vs UOI (1996) case was of the view that the message of the filmmaker must not be taken by viewing certain portions in isolation but by viewing them holistically. It was of the view that documentary does not proceed to deprave and corrupt any average Indian citizen’s mind. The freedom of expression cannot be “held hostage to mere fall of a hat”, as the film had a serious relevant message to convey of the society.
This takes us to the latest case of Shreya Singhal vs UOI (2015), which examined validity of Section 66A of IT Act, 2000 which provided for three years imprisonment and fine for material considered grossly offensive character messaged through the internet. This section was struck down by the court as it was considered to be a “Vice of vagueness and chilling effect on free speech”. The Shreya Singhal judgement is considered a landmark judgement for upholding free speech in social media.
Shyam Benegal, the noted film maker, led a panel on the role of Censor Board & Cinematograph Act and has recommended that the CBFC should only be a film certification body whose scope should be restricted to categorizing the suitability of the film to audience groups on the basis of age and maturity, except in some instances it can refuse certification when a film contains anything that contravenes the provisions of Section 5B (1) of the Cinematograph Act, 1952, when content in a film crosses the ceiling laid down in the highest category of certification. The objective of these guidelines would be to ensure that children and adults are protected from potentially harmful or unsuitable content, and parents are empowered to make informed viewing decisions.
Indian cinema and censor board, have come a long way. From the four minute kissing of Devika Rani in “Karma” (1933), to fluttering of bees of flowers as surrogate kissing, Emraan Hashmi has emerged as the “serial kisser” of our times. The language has also moved away from its Urdu tehzeeb to the coarse colloquialism in movies like “Gangs of Wasseypur”, which celebrate the cuss words. Such a transition from platonic love to hedonism was spurred by Bobby Art International vs Om Pal Singh (1996) Case where the court had observed that the “use of expletives in a nude scene of rape is to advance a message of revulsion against the perpetrators”. Nihalani, does not agree with the recommendations of Shyam Benegal, the filmmaker who started the new wave in Hindi cinema with Ankur (1969). When reasonable restriction becomes an alibi for arbitrary deletion of creative freedom through pre-censorship, freedom of speech and expression becomes a distinct casualty. Palekar’s Public Interest Litigation underwrites this angst and the court, hopefully, would bring sanity to “sarkari” sanctimoniousness. Sanskari cinema has to give way to create freedom, which is the hallmark of a liberal society.
The author teaches Constitutional law