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(Advay Milind Vora is a third year student of Faculty of Law, The Maharaja Sayajirao University of Baroda, Vadodara) Introduction Bollywood cinema has come a long way. From Mughal-E-Azam to Gulabo Sitabo, Bollywood has produced a variety of films belonging to different genres. The depiction of content in the films is protected by freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. Unlike other publications, films are the only form of expression which are subject to pre-censorship. Pre-censorship means the prior restraint on content before it is released for public viewing. It comes under the restrictions enumerated in Article 19(2) of the Indian Constitution. The validity of pre-censorship in films was upheld by the court in K.A. Abbas vs. Union of India. This gives the Central Board of Film Certification (henceforth, CBFC or Censor Board) essential control to prescribe cuts as they feel like, to such an extent that films sometimes lose meaning. They also have the power to prevent the release of a film if they dislike the content within it. Censorship in Bollywood cinema is capricious; it changes according to the discretion of the person holding the chairman position of the board. Two Sides of Pre-Censorship: A study of Delhi Belly & Udta Punjab
In July 2011, a cult-comedy directed by Abhinay Deo and produced by actor Amir Khan, Delhi Belly, was released. It was lauded by critics and viewers alike. The movie has a massive fan following even today. It is one of the few films that showcased profanity and sexual content on the silver-screen. The film could possibly be called a landmark of Indian Cinema. Delhi Belly was released without any cuts and was given an ‘A’ rating as per the norms of the Cinematograph (Certification) Rules, 1952. The film was obviously involved in a mild controversy resulting from the songs, profanity and sexual content. Protestors had also attempted to shut down screenings by rushing into the theatres. Producer Amir Khan was also dragged into court over a kissing scene. Dissenters believed that this film would poison the youth because of the usage of profanity. However, the CBFC was surprisingly generous when it came to the certification of this film. At that time, some people felt that it would be a gateway to opening new dimensions in expression of films. Subsequently, after the film's release, the movie became a cult-classic and drew loyal fans. One song in particular became a youth anthem for a brief period. Things were going well for Indian Cinema with the subsequent release of movies like Gangs of Wasseypur and Go Goa Gone which dealt with problems of local gang wars and drug use in a satirical manner respectively while using profanity and sexual content. Unfortunately, in 2015, nine members of the Censor Board including the Chairman, Leela Samson, resigned citing pressure from the government and corruption within the Board. In their words, the government did not allow any autonomy to the censor board. Subsequently, the year 2015-2017 became a very difficult period for Indian Cinema and cinema goers. The tenure of the controversial Censor Board Chief, Pahlaj Nihalani, proved how vulnerable films are to censorship because of political pressure. His first line of action was to implement the ‘no cuss words’ policy. On being questioned regarding realism in films through cuss words, he replied that it was absolutely rubbish to depend on it to express the gravity of any situation. Films are the only medium which can reach a higher mass of people. Films are produced not only to entertain; they are also produced to make people aware about current problems. One such film which attracted controversy during Mr. Nihlani’s contentious tenure was ‘Udta Punjab’. The main motive of ‘Udta Punjab’ was to familiarize people with the drug problem that infests the state of Punjab. This film was met with suggested 94 cuts including several references to cities in Punjab. Even the word ‘election’ was requested to be cut. This led to a massive controversy where several film directors, actors and producers across the fraternity came forward to extend criticism towards the CBFC. They called it a dictatorial move and a perfidious attempt to clamp down expression in cinema. The Bombay High Court in Phantom Films Pvt. Ltd. And Anr vs The Central Board Of Certification said that the film dealt with a morally and socially relevant subject. It overruled the decision of the Censor Board to cut scenes in the film, and directed that the movie should be released with just one cut. Political Parties speculated that the exhibition of the drug problem would have led to bad publicity of a political party in Punjab. An attempt to establish a connection between the Censor Board chief and the political party in question was also made. Mr. Nihalani’s tenure is a quintessential example of how political pressure and influence from government can so easily and arbitrarily thwart freedom of speech and expression in movies. Why Bandit Queen should be the threshold of Cinema Censorship? Bobby Art International vs. Om Pal Singh Hoon or more popularly known as the “Bandit Queen” case is the inspiration that the Censor Board should take when it comes to applying pre-censorship. Bandit Queen dealt with brutality, dacoity, lust, rape, casteism and gender injustice. The theme of the film attracted parties who wanted to prevent the exhibition of film in India on grounds of it being obscene, abhorrent and unconscionable. The film went through different stages, the Examining Committee of the Censor Board, the Film Certificate Appellate Tribunal (FCAT), and The Delhi High Court. The Appellate Tribunal had granted an ‘A’ certificate to the film and had allowed the exhibition of the film. The parties who wanted to prevent the release further filed a petition in the High Court. The High Court decided to ban the exhibition of the film on the grounds mentioned above. Aggrieved by this decision, the matter was then appealed to the Supreme Court of India. The Supreme Court stated that the film should be judged on the basis of its overall impact and its entirety. The brutality faced by the lead character was not meant to arouse a sense of lust, but to arouse sympathy and disgust towards social evils. The court went on to say that if a film aims to address a social evil, it is necessary to depict the social evil itself. On a scrutiny of the Cinematograph Act, the SC held that the guidelines of the same should be interpreted in that light. The nudity and rape depicted in the film was essential to the film and the character development of the protagonist. It showed the terrifying effect of the social evil and the mental pain it can cause to the victim. The Supreme Court held that the Tribunal had rightly interpreted the guidelines, and the film should be released for public viewing with an ‘A’ certificate. The controversy of Udta Punjab rose to popularity because of a lot of factors such as the fame of the production house and the star-studded cast. Unfortunately, some films did not receive the same backlash by movie goers and were banned by the CBFC. One such film was ‘Unfreedom’ directed and produced by Raj Amit Kumar. Though, the film was not well received by film critics worldwide, it aimed to address the stigma of homosexuality, homophobia, rape, gruesome methods of conversion therapy, and problems of forced arranged marriage in India. The CBFC, however, found that it will ‘ignite unnatural passion’ among the viewers. The CBFC wanted to cut crucial scenes. This led to Raj Amit Kumar appealing to the FCAT which banned the film completely, without leaving any scope for cuts and edits. ‘Unfreedom’ depicts social evils that exist and need to be addressed. Unfortunately, the film never got to see the light of the day. It was picked up by the streaming giant Netflix in 2018, but it is still available to a lesser audience as the subscription is unaffordable to majority of people. Application of the Community Standards Doctrine ‘Decency & morality’ are the grounds of restriction under Article 19(2) of the Constitution. The censor board has repeatedly objected to the exhibition of such films under those grounds. The meaning of the word ‘indecency’ and ‘obscenity’ is identical under Indian Law and English Law. The present law relating to obscenity is deeply problematic. Anything which is sexually arousing is considered as obscene[i]. In regard to obscenity, Justice Harlan had famously quoted in Cohen v. California, “one man’s vulgarity is another’s lyric”. The same was also elaborated by the Kerala High Court in Felix MA vs PB Gangadharan, where the court was of the following view-“What may be obscene to some may be artistic to other; one man's vulgarity is another man's lyric”. The “community standards doctrine” laid down in Aveek Sarkar vs. West Bengal became the standard test to determine obscenity in any form of publication. In Aveek Sarkar (supra) it was held that a picture of a nude/semi-nude woman as such cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. It should be suggestive and designed to excite sexual passion in persons who are likely to see it. It is important to acknowledge that whether something is arousing or not, is subjective. It also depends on maturity and age, which is why obscene material is restricted to adults and mature audiences only. The censor board at the time of reviewing a film should apply the “community standard test” to judge whether something is arousing or obscene. It should become the accepted doctrine when it comes to rating films. Past experiences show that the “community standard test” is not applied in films; the censor board has shown more inclination towards the obstructive “Hicklin Test”. The same can be inferred from the famous censorship in the last James Bond film, “Spectre”. To put things in perspective, Spectre was released one year after the “community standard doctrine” was laid down in Aveek Sarkar (supra). Obscenity might be unpopular among viewers in India, but majority perception is not a reason to suppress such forms of expression. In S.Khushboo vs Kanniammal & Anr the Supreme Court had said, “Article 19(2) poses reasonable restrictions on freedom of expression, which includes ‘decency and morality’ among others. Yet, it is important to tolerate unpopular views in the socio-cultural space”. Censorship in the US: A Sharp Contrast Expressions in films are protected under the First Amendment in the United States. In Burstyn v. Wilson, the Supreme Court recognized for the first time that motion pictures are granted protection under the First Amendment. Prior to this, motion pictures were considered a “business, pure and simple” by the Supreme Court in Mutual Film Corporation v. Industrial Commission of Ohio. Film Censorship today, is regulated by an independent body called the Motion Pictures Association of America (henceforth, MPAA). The MPAA represents the five major film studios that operate in the US, including Netflix. Films are rated under a “voluntary rating system” where filmmakers submit their films for rating to the MPAA. Filmmakers are not legally bound to submit films; it can be released without a rating too. The rating system largely depends on maturity of the audiences and their age, and often there is no censorship. On the basis of maturity, films are rated G, PG, PG-13, R and NC-17. This is very similar to the U, U/A and A rating system of India. The CBFC is under the Ministry of Information and Broadcasting, which is a government body. On the other hand, the MPAA is independent of government intervention and is more autonomous. The MPAA refrains from imposing much pre-censorship on films but just restricts the film to a particular audience, who is mature enough to watch it. In the case of obscenity, the MPAA refers to the guidelines of the “Millers Test” which was adopted in Miller v. California where it was contended that the material is not obscene unless it depicts “patently offensive hard core sexual conduct.” Under this reasoning, many sexually explicit materials such as pornographic magazines, books & also movies are not legally obscene. The “Miller Test” is very similar to the “Community standards doctrine” that was adopted in Aveek Sarkar (supra.). The CBFC, however, overlooks the “community standards doctrine” and decides what is obscene or not at its own discretion. Unlike the CBFC, the MPAA is independent, autonomous and restricts content only on the basis of maturity and age. Conclusion There is no threshold or limit that the Censor Board looks at when it comes to film certification and suggesting cuts. The board is whimsical and it shows. Films have the power to move an audience emotionally, and make them aware about the harsh reality of some parts of the world. Releasing a film that hints towards social evils with a realistic approach is still a challenge in Bollywood. Most films have to depend on streaming platforms such as Netflix, Amazon and Hotstar as they are not under the Censor Board's jurisdiction. In every case and controversy, the court has suggested that films based on social problems and social evils should be permitted to be released as they address an issue. Coincidentally, almost all films that deal with the social evils are mired with controversy. Government influence & political pressure prevent the depiction with cuts and bans. Furthermore, the Constitution is a living document. It is dynamic and it changes with time. The Constitution has been conceived of and designed in a manner which acknowledges the fact that ‘change is inevitable’. What may be indecent or obscene in the past may not be necessarily obscene now.Article 19(2) of the Indian Constitution permits pre-censorship, but it also gives arbitrary power to prevent the exhibition of films at all. This acts as a challenge to the freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. Films aren’t treated like other forms of media such as books and newspapers. The censor board should be regulated and made more autonomous to prevent this challenge. [i]Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India 17 (Penguin Books, Delhi, 1st edn., 2017)
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